By Michael Muehe (Follow us on LinkedIn)
I recently attended a webinar organized by the American Association of Law Libraries (AALL) discussing how to kickstart your research and writing for scholarly publications. As I am in the early research stages of what may become my first professional research article on critical/legal information literacy, I attended with an eye towards gleaning something new or overlooked, especially now that I have no academic course structuring it. Indeed, research and writing strategies weren’t exactly emphasized or explicitly taught in my higher-education experience and, as a first-gen student, I largely learned the processes through trial-and-error. I assumed by my grades that I was doing it right (just not knowing why or how). Now that I have a research workflow up and running, as a previous post of mine details, it’s time to test it and get writing.
During the webinar, a fellow law librarian explained that their process began with identifying a problem their library actually faced. Great, I thought, that was how I identified law library LibGuides and information literacy instruction as an addressable issue. What’s next? They then explained that, because they already had their own ideas about fixing the issue, they sought and found resources that supported their claims. Wait, what? I was astounded and while processing what I’d just heard, I missed an opportunity to speak up and ask, Isn’t that just confirmation bias? What if there isn’t a scholarship supporting your claims? Why write with sources that only support your idea? Because no one else said anything, I thought I might be alone in my thinking, or perhaps misheard. After more consideration, I realized it parallels students’ processes when they come asking for my help, and it may be a larger, addressable problem all on its own.
Now, to be fair, I’ve had long-time professors and attorneys request sources that represent x position or y claims, but that’s likely because, in their lengthy experience, they’ve already learned the information from somewhere, and just need a citable authority or forgot where they’ve learned that information; and, this may well be what directed the prior research for the librarian at this chat. However, if that is the case, that caveat needs recognizing, that the solutions did in-fact come from other prior sources rather than one’s own mind, lest new researchers embark on their research with a point-of-view that they must have a predetermined answer first.
As a librarian, I’ve observed law students similarly struggling with starting their research and writing projects throughout grade levels – 1Ls and 4Ls alike – possessing research planning skills that only hinder their experience, that turn research and writing into something they dread, rather than embrace. On consulting one of my colleagues, what causes these roadblocks may come from students framing their research around a research answer, rather than an investigative question, leading them on a hunt for sources proving their argument. Sönke Ahrens, author of the book How to Take Smart Notes, which describes the bottom-up Zettelkasten writing method, explains, “While we should seek out disconfirming-arguments and facts that challenge our way of thinking, we are naturally drawn to everything that makes us feel good, which is everything that confirms what we already believe we know.” Recalling from my own education, writing was so often taught with creating a “thesis statement,” or your key argument at the start and refining it at the end. But how is one supposed to make such a defining statement knowing nothing yet about what the research will reveal? It wasn’t until late in college that I learned that forming the thesis only at the end best served writing my long research papers, after my research navigated my inquiry, built connections, and facilitated a novel argument.
In a reflection assignment, I had my 1L LRWA students consider how legal research differs from their prior academic or professional research experiences. Interestingly, some students responded that their prior academic research didn’t require such a deep understanding of authorities and sources; that they merely sought journal articles that fit their thesis and arguments for their papers; and that they must learn how to research and write without confirmation bias. In other words, they’ve proceeded through their academic life targeting their research only on what they want to say, rather than engaging with a broader, scholarly conversation or even with ideas that challenge their thinking. It seemed I wasn’t the only one taught to create a thesis before researching. Similarly, upper-level law students approach me for directed research consultations or internship assignments, dead-set on proving arguments they’ve already constructed in their heads. Too often have I, to their surprise and chagrin, reminded students that there isn’t always a case, an article, or resource for everything. These encounters leave me wondering how else I can help them dismantle this mindset and support better research strategies.
Ahrens, who ultimately challenges traditional writing guides and processes, argues that good systems and their workflows help us act more virtuously about our writing and tackle confirmation bias in two ways: “First, by turning the whole writing process on its head, and secondly, by changing the incentives from finding the confirming facts to an indiscriminate gathering of any relevant information regardless of what argument it will support.” While a law student or lawyer certainly can’t be as indiscriminate in their gathering (they still need to think strategically and efficiently with their research), I find the underlying message here still applies well to our students as they confront issues with varying degrees of authority and treatment. The ABA Model Rules of Professional Conduct Rule 3.3 states, in part, “(a) A lawyer shall not knowingly… (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel…” With confirmation bias at the helm, researchers not only face difficulty in starting their research, but they might also run afoul of this important professional rule.
By confronting and challenging our writing processes built on confirmation bias, I imagine that it would invite a greater diversity in our law library scholarship and foster connections and challenges otherwise overlooked. But, how might we also address this in legal research instruction? Starting first with continued emphasis on creating research issue questions as many legal research texts describe (rather than more familiar academic “thesis statements”) may help students frame legal research as an organic, investigative inquiry, rather than as proving a predetermined argument. Beyond basic research strategy, we might also reinforce this process with discussions on critical legal research and law reform, where, especially in civil rights, environmental, or other social justice-related legal battles, there may well not be positive authorities that help your client (for a great example, see Nicholas Stump’s “Following New Lights: Critical Legal Research Strategies as a Spark for Law Reform”).
In light of how confirmation bias affects our law students’ (and possibly our own) research, I ask my fellow librarians, who else has seen this issue arise and how else might we address it?
Notes Between Us (NBU) is a blog about conversations and topics of interest to the writers. The writers are expressing their personal opinions solely. The essays represent their personal beliefs and not that of their workplaces or any organization they are associated with.