There are many buzzwords which are used to describe the generation of children, students, and increasingly young professionals who have grown up with ubiquitous access to the information available on the internet. They are variously described as the ‘Net’ or ‘Google’ Generation, ‘Millenials’, or ‘Digital Natives'.Footnote 1 This branding suggests on one level that they are a quantified and well-understood category. However, the distinction is actually more nebulous. Many assumptions about this class of information consumers are based on anecdotal experiences or unfounded expectations, and without recourse to much of the research that has been done in the field.
This article seeks to identify some key characteristics of undergraduate students entering university to study a Law degree. Such an understanding is necessary for educators and information professionals to determine how these students may be best served to equip them with the skills needed both to succeed in the educational environment, and also if they choose to progress into the legal professions.
THE DIGITAL NATIVE?
It is fair to say that the notion of these upcoming young people as somehow different to the incumbents – that they speak a different language and have a different range of skills – has a strong intuitive appeal. It is one which has been repeated down the generations (for example the ‘Radio’ Generation, or the ‘Television’ Generation). There is often an assumption that they have an innate mastery of the newer technologies.
However, it is important to consider whether there is any empirical evidence underpinning these assumptions, how they apply to the cohort's information management abilities, and to legal research specifically. Once we have identified the correct nature of the class of user coming through, we should be able to structure teaching, research and subsequent practice in a way designed to satisfy their needs, and to facilitate the best and most efficient use of their skills.
In 2008, a study by UCL was commissioned by the British Library and JISCFootnote 2 which aimed to determine how the researchers of the future would interact with digital resources, and to attempt to anticipate emerging behaviours. This report defined the ‘Google Generation’ as those born after 1993. While a full-scale longitudinal study was beyond the scope and time frame of the project, the authors combined desktop studies of previous literature on earlier cohorts of researchers, with log analysis of users of the British Library and JISC websites profiled by age.
When it came to the information behaviour of the ‘Google Generation’, the report found with a very high level of confidence that information literacy had not improved, and actually that the “apparent facility with computers disguises some worrying problems”. Younger users were found to have a very basic grasp of the true nature of the internet – preferring branded search engines without considering the wider resources available in the library. These young people demonstrated great speed in information searching, but did so at the expense of evaluating the relevance, accuracy or authority of the information they discovered.
While this is plainly a problem in all fields of teaching and academia, it is a situation which is particularly concerning for the legal profession, and the next generation of lawyers graduating university, being trained and entering law firms and chambers. A failure to appreciate the context, detail and authority of a source of information can constitute professional negligence of the highest order in a legal practitioner.
This is certainly not just an undergraduate challenge. Firms and chambers report repeatedly that students entering practice are not sufficiently equipped with necessary research skills. For example, as identified by Erin GowFootnote 3 who examined the legal research training needs of users of the Middle Temple library, “library users have a range of difficulties stemming from a lack of information literacy and legal research skills, which hampers their ability to efficiently access the resources in the library”.
Lawyers not only need a firm grounding in the basic research skills and management of information resources. Commentators on the ‘future of law’ such as Richard Susskind almost invariably argue that the future legal marketplace will also require accomplished lawyers to be accomplished technologists.Footnote 4
So how can we more clearly characterise those students we recognise as the ‘Digital Natives’, so that with better understanding we can meet their information literacy and legal research needs, while addressing the limitations identified in their information management skills?
COMPETENCE THEORY
Competence theory is a well-studied concept within the domain of psychology. It can be seen as a practical outworking of the statement by Socrates that “the only true wisdom is to know that you know nothing”, or Confucius “real knowledge is to know the extent of one's ignorance”. Perhaps the theory is more recently and humorously illustrated by Donald Rumsfeld's “Unknown unknowns” speech. This concept is sometimes called the ‘Dunning-Kruger effect’, from the workFootnote 5 of David Dunning and Justin Kruger at Cornell University who first tested the phenomenon.
Competence theory suggests that students who operate at low levels of competence tend to overestimate their own skill level. Whilst they operate from a position of being unaware of their own lack of ability, they actually display higher levels of confidence than more skilled individuals. Moreover, they also demonstrate a limited ability to identify higher levels of proficiency in others, meaning they are ill-equipped to seek out assistance from either peers, or specialists (for example members of teaching or support staff).
Competence theory was applied by Melissa Gross and Don Latham to the information literacy skills of incoming freshmen at Florida State University.Footnote 6 While their study did not find an association between information literacy scores and ‘library anxiety’, they did identify a “miscalibration between students' self-assessments of their information literacy skills and their actual skill level”. This inability to accurately assess one's own abilities meant that students were unlikely to pursue remediation. The effect of this kind of overconfidence in self-assessment has also been identified in other fields, such as in reviewing the core skills of physiciansFootnote 7, and business information technology skillsFootnote 8, amongst others.
Overconfidence tied to the inability to make effective decisions about information sources was also examined in length by CoombsFootnote 9, who concluded that students' “…lack of understanding of how the web works, coupled with high levels of confidence, means they often fail to realise the limitations of their abilities and assume that if they can't find it on the web, then it doesn't exist”.
The effect of this overconfidence in library skills was also studied in undergraduates by Christopher Freeman at Armstrong State University.Footnote 10 Freeman recorded the same high levels of confidence in students' own abilities to use the library resources effectively, notwithstanding the relatively low performance of his cohort generally. Freeman also surveyed the same students on their attitudes towards library instruction. Although somewhat surprisingly students were largely positive about the concept of instruction, they were much less positive when reporting whether they themselves would benefit from such teaching.
It can be concluded then, that in line with competency theory the large majority of undergraduate law students are likely to overestimate their own information literacy skills. This overconfidence is likely to lead to an assumption that a resource does not exist if it is not found easily on the internet. Further that this over-assessment of ability is usually partnered with an inability to accurately identify how that deficiency might be addressed, and a negative view of the need for library/resource instruction.
THE NATURE OF SATISFICINGFootnote 11
In addition to the overconfidence observed in many students, as identified in the BL/JISC report and discussed above, those who are accustomed to searching Google and Wikipedia have a very narrow understanding of the sources and reliability of internet resources. The ‘Digital Native’ tends to have a very shallow and basic grasp of research skills.
It has been characterisedFootnote 12 that:
• There is little evidence to suggest that students' generally high use of traditional web technologies has resulted in more sophisticated scholarly information seeking behaviour when using the Internet;
• The behaviour and attitudes of students when it comes to scholarly information seeking is indicative of “satisficing” search strategies that are associated with a surface approach to learning in higher education;
• Undergraduate students' experiences with easy-to-use and useful tools such as Google and Wikipedia mean that they are more likely to rely on these tools when undertaking more rigorous academic enquiries.
Once identified, this concept of ‘satisficing’ seems to reverberate strongly with my own experiences, and with much of the material written on the subject. Michelle Wu and Leslie Lee analysed an extensive survey at Georgetown and George Washington UniversitiesFootnote 13 which evaluated the research and critical evaluation skills of current JD and post-JD Law students. Although much of the survey tested US research skills, and also focused on students who had either completed, or were a good way through their legal education, they still concluded that ease of use – as opposed to considerations of authority, suitability or efficacy – was the primary factor in selecting a research starting point: a clear indication of satisficing behaviour.
Melanie Bueckert, Legal Research Counsel with the Manitoba Court of Appeal described both competency theory and satisficing behaviours when she wrote the followingFootnote 14
“I think part of the difficulty with teaching Advanced Legal Research to today's law students is their superficial facility with online search tools, such as Google. I know much has been written on this subject, but even though all the students own laptops and can find things on the internet, it does not mean that they even understand how to really use Google best, nor do they know which information sources to prefer over others. As legal research subscriptions …become more like Google in terms of their user interfaces, students may think that their basic understanding of Google searching is sufficient to meet the legal research needs of their future employers.
There is a disconnect between what students think they know about legal research and what they actually know… As such, I think there is still much work to be done in the field of Advanced Legal Research in our law schools. The problem is overcoming the initial feeling amongst students that they already know what they're doing.”
As depicted by CarrittFootnote 15, by exhibiting satisficing behaviours, students are “often willing to trade quality for convenience”. This was characterised by researchers downloading complete PDFs of legislative provisions from free websites, as opposed to consolidated legislation from Westlaw or Lexis. A number of other practical examples of satisficing behaviour in legal research are outlined by Natasha Choolhun.Footnote 16
THE UNIVERSITY OF CAMBRIDGE EXPERIENCE
At Cambridge, the Freshfields Legal Research Skills Course has been taught in slightly varying forms to first year undergraduate Law students since 2001. Since inception, it has never been framed as an ‘IT Course’, even when the course was originally launched and students were beginning their degree with extremely variable IT skillsets. They were directed to the University's Computing Service in order to bring their IT skills up to a level where they could successfully participate in the course.
Whilst it is true that students arriving at the Faculty now – more than a decade later – invariably have more advanced basic IT skills, this has not in my experience translated into students who are better at undertaking legal research, or who are better able to grasp the concepts and tools required more quickly. Because we have not been teaching them pure ‘IT skills’ but an integrated package of searching techniques and legal resource / information literacy, we must be careful in assuming that the more technically adept require less teaching.
My experiences have certainly reflected competence theory and satisficing behaviour, with students showing a high preference for the use of Google in searching for legal resources, and a likelihood that students will opt for expeditious searches which they consider to be satisfactory, rather than appreciating a broader range of other higher-value resources. For example, many students will search on Google for a case name or citation, and this will take them to BAILII or even Wikipedia, where they might skim the judgement. This, however, means that they do not receive any of the additional precedent and research information they would obtain from a subscription source. The student will be ignorant when a case has been distinguished or overruled, and therefore does not read the case in a suitable context.
Scrutiny of the results of assessments performed on the research skills course provides further insight to the performance of newer students entering the Faculty. When undergraduate students matriculated in 2003, the course comprised 7 assessed modules, and there were 270 students in the cohort. These students failed a total of 91 assessments (ie. they received a mark below the 65% passmark) which is a total failure rate of 4.81%. The 2010 matriculation year graduated recently, and their cohort of 236 only sat 6 assessments, and yet they failed 94 assessments, resulting in a failure rate of 6.6%.
The complete statistics are shown below:
While the failure rates vary somewhat (a higher figure in the 2005 matriculation, and a lower in 2007), what can be seen clearly is that there is no improvement in the performance of students in their research skills as we move deeper into the ‘Digital Native’ generation. Indeed, there is a slight declining trend in performance over the course of the decade, notwithstanding the increased general IT skills of students, and that the online legal resources are generally considered to have been developed to be more user-friendly over that time.
Having spoken to many students who fail assessments, their reasons are usually described as being because they ‘thought it was too easy’, that they proceeded too quickly, or ‘I wasn't concentrating hard enough’. They are rarely prepared to admit to a lack of understanding, or a limit to their knowledge, and almost never seek assistance when they find they do not know how to answer a question.
THE REQUIREMENTS OF THE PROFESSIONAL QUALIFICATION
In contrast with efforts in the United States, the legal professions in England and Wales have not chosen to provide a prescriptive set of requirements in the field of legal research and information literacy skills when laying out the requirements of the ‘Qualifying Law Degree’. In the original Joint Statement from the Law Society and the General Council of the BarFootnote 17 which stipulated the standards required, the expectations were extremely broad-brush, such as:
Students should have acquired:
• The intellectual and practical skills needed to research and analyse the law from primary resources on specific matters; and to apply the findings of such work to the solution of legal problems;
and students should be able:
• To use standard paper and electronic resources to produce up-to-date information;
• To conduct efficient searches of websites to locate relevant information; to exchange documents by email and manage information exchanges by email;
The QAA BenchmarkFootnote 18 from 2007 adds a little more to this definition, providing amongst other skills that students should demonstrate a basic ability to:
• identify and retrieve up-to-date legal information, using paper and electronic sources;
• use primary and secondary legal sources relevant to the topic under study;
• bring together information and materials from a variety of different sources;
• be able to undertake independent research in areas of law which they have not previously studied starting from standard legal information sources;
• use the internet and email;
• use some electronic information retrieval systems;
More recently, the Legal Education and Training Review (LETR)Footnote 19 was jointly undertaken by the Solicitors Regulation Authority (SRA), the Bar Standards Board (BSB) and the Institute of Legal Executives Professional Standards (IPS). It was intended to be the most substantial review of legal education and training since the publication of the Ormrod Report (Report of the Committee on Legal Education, Cmnd 4595) in 1971. Work on the Review commenced in June 2011 and the final Report was delivered to the Review Executive and published in June 2013.
In an attempt to address concerns that basic research skills should be benchmarked at a certain level, the British and Irish Association of Law Librarians (BIALL) established a working group in 2012, and subsequently published a Legal Information Literacy StatementFootnote 20, similar in nature to the AALL Legal Research Competencies and Standards for Law Student Information Literacy.Footnote 21 The BIALL Statement was submitted for consideration by the LETR.
The LETR welcomed and noted the BIALL submission (and also the Society of College, National and University Libraries (SCONUL) Digital Literacy LensFootnote 22), and recognised a “strong consensus that legal research skills are important and need to be addressed at different stages in the training process”. Although recognising “evidence of variability in the development of research skills and digital literacy”, the Report fails to detail increased expectations in this area. It merely suggests that consideration should be given to the BIALL and SCONUL guidance when reviewing outcomes for legal research.
More emphasis was placed on the need to increase legal writing and drafting skills, but much of the effort was directed towards professional ethics and values, and the structural challenges of the legal education system more generally. Chair of the BIALL Working Group Ruth Bird said she was “disappointed not to see the adoption of the Statement by LETR”.Footnote 23
At least the Report does take a stronger stance on expecting specific research training. One of the Report's recommendations was that providers of a Qualifying Law Degree or Graduate Diploma in Law should undertake “distinct assessment of legal research, writing and critical thinking skills”, but that they should retain discretion in setting the context and parameters of the task, as long as it is so substantial as “to give students a challenging opportunity to demonstrate their competence”. It leaves further development of standards as a matter for the frontline regulators to decide, in the light of their regulatory responsibilities, in terms of what action they will take in response to the review recommendations.
The LETR does not really change the scenery then beyond the general expectation of some form of distinct assessment (which many educators might already be providing). We must await any future guidance from the appropriate bodies. In the interim, education providers should make reference to the standards suggested, and place their own emphasis on embedding the research, analysis and writing skills into legal teaching, and make efforts to ensure that students are brought up to an acceptable level of competence.
CONCLUSIONS
In conclusion, the 2008 JISC/British Library study considered the proposition that the ‘Google Generation’ were expert searchers. It stated with a high degree of confidence that this assertion was a “dangerous myth”. Digital familiarity and information literacy could not be equated, and there was no apparent evidence of an improvement (or particularly of a deterioration) of young people's information skills. The evidence would certainly point to this truth pervading the practice of legal research, and the legal research skills which must be taught to lawyers of the future. The report continued “The problem here is that they simply do not recognise that they have a problem: there is a big gap between their actual performance in information literacy tests and their self-estimates of information skill and library anxiety”.
This is strongly supported by CoombsFootnote 24 who concludes “This lack of formal information-seeking skills instruction is due to the fact that educational administrators and teachers believe the myth promulgated by the Generation Y theorists and the popular media. It is assumed that Generation Y (digital natives) already have the skills to locate information using electronic resources, are able to engage with text/information on screen and consequentially can use information they find to meet their needs. The assumption that students have the skills to locate information in the virtual environment simply because they are familiar with technology and confident about using it, has meant that information-seeking behaviour among members of Generation Y is unsophisticated, demonstrates a culture of use that is hard to change and …they have poor Internet literacy skills…”.
Paradoxically then, the teaching of research skills to ‘Digital Natives’ is actually more important, because a greater level of basic IT knowledge often results in students having a higher opinion of their own abilities than is actually the case. As we have seen, competency theory means that students' opinions are not a good assessment of their own abilities. This can result in misleading feedback from sources such as student feedback questionnaires. This problem was identified by GallacherFootnote 25 whose research at Syracuse University of Law demonstrated that 81% of incoming law students reported that they were “very” or “somewhat” confident in their legal research skills, notwithstanding a corresponding AALL survey indicating that many such students lacked basic research skills. The AALL survey concluded that “teaching legal research with an underlying assumption that entering first year students have basic research skills may be flawed. Integration of instruction in basic research skills may be an important component for legal education”. Footnote 26
The evidence from the literature, and from my own experience of many hundreds of undergraduates at Cambridge, supports this clear and consistent message. That is, that although students studying law today have more experience of online services and searching, and a greater use of technology in their everyday lives, they are in many ways less equipped and less capable of handling complex legal research tasks. It is vital that educators take this into account in the design and delivery of research skills teaching to ensure the lawyers of the future are sufficiently skilled to meet the challenges they will face.
Teaching needs to take place in a comprehensive way – integrated with the curriculum so as to ensure relevance to the students, and not just at the beginning of the undergraduate law experience. It will be difficult to truly embed the literacy skills and habits without thorough teaching throughout the legal education experience as the students' skills and understanding improve. This should go some of the way to addressing the issues identified in the Canadian Law Library ReviewFootnote 27 by Pamela Seguin, who said:
“Left to their own devices, most students will develop restrictive, inadequate, and often quite misleading methods of conducting legal research… Most law schools offer introductory research sessions to first-year students. I suspect the expectation is that by offering these courses at an early stage in a law student's education, students will then be able to apply these skills in subsequent years without the necessity for later research instruction.
There is a serious problem with this approach that I believe is often overlooked. This is, quite simply, that first-year students “just don't get it”, and they have no opportunity to apply these skills in any meaningful way. During their first year, law students are focused on grasping basic substantive law concepts; they do not have incentive to learn and integrate complex researching skills that do not have immediate application. Educational researchers emphasize that students must have a strong grounding in subject matter before information retrieval skills can be developed and retained. Yet it is not until their second-year that students have sufficient proficiency in law to develop legal research skills.”
The most effective methods of teaching will be those which are not simply delivered on the basis of self-assessment of need. They will also need to be embraced at all levels of teaching (academic as well as library and support staff), because as Joan Lippincott identifiesFootnote 28, “Technology and information literacy are generally perceived to be “library” or “IT” problems, not overall curricular issues”.
Providing a variety of legal research skills educational opportunities which appeal to the learning styles of different students, such as drop-in classes, online video or multimedia presentations, can be useful for some students. It is also an attractive option because it is seen to be appealing to the ‘digital native’. However, while such provision is likely to form a useful additional part of the library or information services provision, it should not be used as a replacement for obligatory classroom teaching. The research into competence theory generally, and in the specific area of library/research skills, shows that this provision is unlikely to be effective for non-proficient students, who are entering University with a low level of ability, and are unlikely to be equipped to be able to see themselves as needing or benefiting from further instruction. The students who need to develop the skills the most are therefore the ones least likely to seek out additional optional training sessions, online courses or videos, or seek assistance from either peers, or members of staff.
If these students are not obliged to undergo rigorous teaching of research skills training by the structural design of the curriculum, and by value being placed on those skills by all involved, then it is unlikely that their limited skills and satisficing nature will be overcome. Without continued effort in this area, we will most likely be failing to equip the next generation of lawyer to overcome their inherent limitations of understanding, and failing to provide them with the skills they need to succeed. While the digital natives can certainly conquer their new landscape, they will need help equipping them to do so.
