A student recently posted an assignment in the form of a problem question on an internet forum, asking forum participants for advice as though his facts were a real case he was researching. When this came to light the student claimed he’d done nothing wrong, while the teacher claimed it was a case of academic misconduct. It made me think about students discussing their assignments with their lawyer parents, or with tutors who set them on the right track, or whose barrister mates comments on their papers prior to submission. Meanwhile, we ask students to use scholarly academic research methods. We would like them to use formal research tools such as library catalogues, digests, citators, bibliographies and current awareness services to locate text books, monographs, legal encyclopaedias and journal articles. We would like them to cite cases from the best sources, ie, authorised reports, and to use only official versions of legislation.
But where does academic misconduct begin and end? I mean, wouldn’t lawyers ask their friends where to start? Wouldn’t they ask another lawyer who has dealt with a similar case before? Or, heaven forbid, perhaps they’d even post their facts on an internet forum, hoping to get some quick advice. So, is informal legal research OK? If not, how do we get students to appreciate the importance of formal research methods and the place of more informal methods?
• We need to acknowledge that in real life informal research methods are very commonly used, but that such methods are only useful if a lawyer knows the formal methods also; to confirm, to update, or to further research whatever they get from informal means. Learning to use these aids and materials for legal research is a must; they are foundational skills for lawyers to ensure their knowledge is thorough, correct, and up to date. (No one would make a claim or submission in court, or submit an article or manuscript for publication, without being sure of the law and the arguments in the area.)
• We could pay more attention to the processes students use in their work, while currently it appears we’re only interested in the product. For example, whether students are required to produce a shorter letter of advice or a longer research essay, it is generally only the final advice or essay which is assessed, and little attention is paid to how they got to that advice or essay. We note whether or not they have cited appropriate authority to support their propositions, we note whether or not their reference methods are correct, and we note whether or not they have found all (or most) of the salient material. And we might assume from these things that students have conducted the research using acceptable methods.
• We need to make really clear to students which processes are and are not acceptable for any piece of work. Can students discuss their assignments with peers so long as they write up their work individually? Can they discuss it with parents? Siblings? Friends? What if their parents, siblings, or friends are lawyers? Can they ask for help from librarians? Senior partners? Tutors? Is this an assignment requiring pure documentary research, or is it okay to ask around?
• We could ask students to submit a research log with every piece of written work they produce. This would indicate the importance we attach to research methods, as well as assisting students to reflect on their own development as researchers. If this were required as a matter of course, rather than a one-off assessment for a legal research course, it may indicate to students the importance of knowing and being able to use formal methods of research, of reflecting on and learning from their research experiences, and of developing and further honing the necessary skills.
We need to make it clear that the formal research skills they are required to learn and use in law school may in practice be mingled with informal research skills developed along the way. Then when students go into practice they may well use friends, family, senior partners and internet forums as a starting point, but at least they’ll have the necessary research skills to fall back on, or to confirm the information these informal sources produce.