Slow reading: one piece in a good reader’s arsenal.

I sometimes read very slowly, and sometimes very quickly. It may be that attention spans are shrinking. I often have a difficult time getting my students to simply stop and think about what they’ve read. And so I’m all on board with the “slow reading” movement:

“The idea is not to read everything as slowly as possible, however. As with the slow food movement, the goal is a closer connection between readers and their information, said John Miedema, whose 2009 book Slow Reading explores the movement.

“‘It’s not just about students reading as slowly as possible,’ he said. ‘To me, slow reading is about bringing more of the person to bear on the book.’”

Even my 17 year old son makes fun of how slowly I read the many novels and history books I’m always trudging through, but, as I tell him, I tend to remember almost everything I read in those books. And as I research, I come across articles and books I move very slowly through, trying to make sense of every last word. It drives me particularly crazy when I ask my students what a new legal word means and none of them know. How can they read law — something they’re trying to learn — without a dictionary and without the effort to understand what it is they’re reading?

But sometimes I have to read quickly too. If you research a difficult legal question, you’ll often have to read, literally, hundreds of cases. You don’t engage in “slow reading” to find your way through hundreds of cases to the handful that merit serious study and will genuinely help answer the question you’re researching.

So, slow reading is good. So is fast reading, skimming. What makes a truly good reader is doing both and deploying them effectively.

There may after all be useful methods to develop effective analogies to help guide your legal research!

I did at least acknowledge in Friday’s post about the difficulties of research that my words originated at an hour when I felt at “rock bottom.” The essence of my “advice” was not terribly helpful as an educational matter except perhaps in emphasizing to students the enormity of the task and the difficulty of the work they are taking on when they do legal research. I wrote:

Research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

But in emphasizing the difficulty and artistic aspects of legal research (beliefs I do not hereby recant), I entirely ignored the perfectly legitimate question asked by one professor on behalf of her students: are there any methods that are helpful in developing the analogies that are so central to legal argument?

So I did what I should have done in the first place if I were going to speak with any authority on research — I did some research, and, in fact, I found that there may be methods that can help students develop meaningful and useful analogies they can subsequently use to guide their research with increased effectiveness. See, e.g., I. Blanchett & K. Dunbar, How Analogies are Generated: the Role of Structural and Superficial Similarity, Memory & Cognition 2000, 29, 730-735 (pdf) and sources cited therein.

One can, of course, make a lists of items and ask students which ones belongs and which one doesn’t. You might list, for example, Oprah Winfrey, Orin Hatch, Hilary Clinton, and Olympia Snowe. In doing so, the students could recognize that the group of 4 could be classified according to a number of different criteria, and each criterion would exclude a person the other criteria would not. There are 3 women. There are 3 politicians. There are 3 people whose first names begin with the letter O.

This type of exercise does help students recognize that analogies are based on the similarities between different situations, and that of course is a necessary first step in teaching argument based on analogy.

The problem with this type of exercise, however, is that experiments show that it leads subjects to focus on surface similarities between the situations they are comparing rather than on underlying structural similarities. Blanchett & Dunbar at 3. In contrast, however, research shows that the analogies people use to solve real world problems “tend to be based on deep structural features rather than superficial features.” Id. at 4.

Fortunately, however, there are studies supporting at least one method of increasing the ability of subjects to identify situations that share deep structural similarities and, therefore, provide more meaningful analogies and more effective problem solving. Simply put, the subjects are split into 2 groups and are presented with a problem, associated issues, and 2 opposing approaches to solving the problem. One group is asked to generate analogies supporting one group, and the other to generate analogies supporting the opposition.  In one experiment, for example, subjects were presented with the question of whether Canada should run a public deficit or instead balance its national budget. One group was asked to generate analogies that would be helpful to a group arguing for a balanced budget, while the other was asked to identify analogies helpful to a group supporting deficit spending. Id. at 5.

The results showed that the analogies developed by the groups were not very influenced by superficial similarities, that the groups generated a wide variety of analogies, and that they drew those deep-structure analogies from domains not typically associated with the target problem. Thus, instead of focusing on matters typically associated with debates over national budgets — economics, politics, and personal finance (if I can balance my checkbook, why can’t the government?!) — the analogies were  drawn “from domains as varied as natural resources, eating, illness, and domestic tasks.” Id. at 9. Further studies have shown similar results and have suggested that individuals generating analogies alone are more effective than groups at finding deep structural similarities in situations that are not superficially similar. Id. at 13.

So here may be a useful tip for a student trying to find analogies to legal problems he or she is trying to develop arguments about:

Sit down alone, without resort to any sources other than your own imagination, and try to think of as many situations that are similar to the problem or issue you are addressing in ways that support the position you are taking on the issue. Don’t feel constrained by case law you may have happened to have read or what you feel lawyers are supposed to do. Use your imagination, and draw on whatever  you can. You’ll end up with a number of analogies. Then you can go to secondary sources, identify cases that involve those types of situations, and perhaps in those cases you’ll find arguments and analogies useful in the case you are trying to solve. You might even find very good ones no one has considered before. Lawyers do that all the time.

Research only begins with information: patience, insight, and imagination are the most important parts of it.

Suffering from one of my occasional bouts with insomnia the other night, I came upon a message on the legal writing professors’ listserv from a professor who was seeking advice from students who were wondering what tricks or tools they might use to find the analogies and legal arguments that they were finding so difficult to discover in the course of their legal research. No doubt the hour contributed to the poor quality of my response. In her poem “4 a.m.,” Wislawa Szymborska writes that “No one feels fine at four a.m.” But the passionate rage I felt at the belief that there are simple tips and tricks to effective research of any sort was not purely the product of the feeling Szymborska describes as “Hollow. Vain./Rock bottom of all the other hours.”

We have a serious misunderstanding these days about what constitutes research.

According to the Oxford English Dictionary, research is the

Systematic investigation or inquiry aimed at contributing to knowledge of a theory, topic, etc., by careful consideration, observation, or study of a subject.

Let’s assume that the inquiry is into a legal topic. The first element of research is a “systematic investigation or inquiry.” I suppose location of a database or the use of a particular search algorithm could be considered one sort of a systematic investigation, but to suppose that the notion of systematic investigation is exhausted by the location of sources is nonsensical. I can point students to particular treatises I personally find of great value in certain subjects, and of course legal research is filled with secondary sources and finding tools that fill virtually any style one might find useful in such sources. And we live in the age of databases — there are databases for everything.

But systematic investigation is barely begun, if even begun at all, by merely finding a source or set of sources in which answers might lie. The real art of research lies in the second part of that definition of the term: “careful consideration, observation, or study.”

The answers to difficult legal questions don’t lie around waiting to be found as if they are treasure chests left lying on forest floors. They are constructed and created by elements buried within our universe of databases. Thus, research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

Perhaps more importantly, the identification of the elements that matter cannot be done without simultaneously developing ways of putting those elements together in some useful and novel way. How can you know what matters without knowing what purpose you are putting it to? And how can you decide what purpose you are trying to accomplish if you don’t know what elements you’ll have to use?

In short, research, analysis, and theorizing are all a single activity — finding things, making sure they are the right things, and putting them together in the right ways.

To suggest otherwise would be to suggest that finding the historical sources concerning the U.S. Civil War that James McPherson used in writing his brilliant history of that conflict was virtually all the work that had to be done to produce the book. After all, once one has found the sources, the writing is just a matter of stringing the information in those sources together, right?

Of course not. One must find the sources, of course. But the research is inseparable from the perspicacious mind that finds within those sources the elements that the creative and original mind then can mold into a work that educates, entertains, moves, and even convinces.

There is no such thing as research apart from insight and imagination. And an enormous amount of work.

And so, in perhaps the most coherent part of my e-mail the other night, I wrote:

Research is about drawing connections between ideas and words from wildly disparate sources, connections that can only be found by means of painstakingly patient reading of one source after another, tracing connections between sources that might be as seemingly trivial as the bare citation in one case to a another case in connection with a discussion in the first case that strikes the attentive and imaginative reader as potentially relevant to the legal issue he or she is researching. Obviously, tracing such connections (and the myriad of similarly subtle connections effective researchers exploit) requires an enormous amount of concentration, and enormous amount of patience with the continual following up of leads that go nowhere, an enormous amount of imagination to spot connections that courts don’t make explicit (and often don’t even recognize the true significance of), and an abandonment of the idea that engaging in research in this manner is to neglect (in some Luddite fashion) “tools” that can do the job so much more quickly and effectively.

Research is painstaking work that requires enormous imagination and is inextricably intertwined with and develops simultaneously with the development of the legal analysis the research is intended to support. (Which is one reason I go ballistic anytime someone suggests librarians rather than legal writing professors should be teaching research to first year law students, as if legal research is simply a matter of knowing sources and databases and how to develop effective word searches rather than being part and parcel of the writing and analysis.)

I’ve always told my students that law is as requires as much creativity and originality as any human endeavor. I mean it.

One last point: I don’t think Google is making us stupid. Yes, there is more information available to us than ever before. But, again, we can’t confuse information with research. Research is inquiry that contributes to knowledge. Information may be a sine qua non of research, but without attention, insight, and imagination, it isn’t research at all.

The music industry, book publishing, and now Lexis and Westlaw?

Our technological revolution is taking down the music industry as its operated for the last 80 years or so, the book industry as its operated for the last 150 years or so, and now there are plenty of people who think that internet in general and Google Scholar in particular will take down the online legal research regime that has only existed since a couple of years before I started law school in 1981 — Stephen E. Arnold writes:

What is the financial outlook for the LexisNexis-type and Westlaw-type firms? Short term there won’t be much change. Over time, life gets tougher. I do quite a bit of work in online information, and I am not sure these outfits can adapt to the Google’s legal push.

You can now use Google Scholar to find case law.

This is a terrific new innovation. Today, from Google:

Starting today, we’re enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. You can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics (like desegregation) or other queries that you are interested in. For example, go to Google Scholar, click on the “Legal opinions and journals” radio button, and try the query separate but equal. Your search results will include links to cases familiar to many of us in the U.S. such as Plessy v. Ferguson and Brown v. Board of Education, which explore the acceptablity of “separate but equal” facilities for citizens at two different points in the history of the U.S. But your results will also include opinions from cases that you might be less familiar with, but which have played an important role.