Learning theory and legal research

This chapter from Teaching legal research briefly discusses three major theories of learning – behaviourism, social cognition and experiential learning – and highlights the findings in the context of teaching legal research skills.

The behavourist school of thought

According to this school, the focus of learning is a change in behaviour. The foundations of what has been termed classic behaviourism lie in Pavlov’s work with dogs which had been conditioned to salivate on hearing a bell they had learned to associate with the provision of food. The learning here may be characterised merely as a stimulus-response relationship.

Another behaviourist researcher, Frederic Skinner (1954), demonstrated that the behaviour of rats and pigeons could be shaped through the provision of reward in terms of food, and described the concept of ‘positive reinforcement’. The learning here may be characterised as response-reward/reinforcement, which occurs incrementally leading to a change in behaviours.

It is important to remember that this research was performed on animals, not human beings, yet the results of the research were applied to learning by humans. The theory asserts that learning should be:

• highly structured
• consist of small sequential steps
• include feedback and reinforcement rewards
• structured so that mastery of one level was necessary before moving onto the next level
• teacher-centred

The theory is useful in situations where there is only one way of undertaking a task, such as navigating the correct route within databases, pushing the correct buttons, working to a protocol. It is applied in chapter 4, in the demonstration and workbook models of session design. Illustration 4 ( an extract from a student handout I used in the 1990s), available at the bottom of the page, exemplifies the mechanical nature of this theory in practice. Typically, this type of session is a ‘bolt-on’ to the law curriculum and not ‘embedded’; that is, whilst the learner has acquired a mechanistic skill in using the database, the legal information discovered during this session is not carried over into other parts of the curriculum and re-purposed. The exercise questions are merely ends in themselves.

The limitations of the theory are obvious – it deals only with changes in behaviour, not changes in intellectual processes and our ways of thinking. It does not assist in modelling how we learn through understanding. So, for example, the theory cannot assist in modelling the deeper understanding we try to inculcate in students of, say, how to select an appropriate source for the particular research query to hand.

The social cognition school

As a result of the narrow and simple stimulus-response theory of the behaviourists, theories of social cognition developed to deal with the complexity of human behaviour and learning. Perhaps the best known exponent was Jean Piaget (1950). Followers of this school try to explain how our awareness of the outside world is internalised either through assimilation (or fitting ideas into our minds) or accommodation (by changing our existing understanding). Understanding the solution to a problem comes only through internalising and gaining an insight into the whole picture, not just the individual components. Cognitive learning theory maintains that learning should:

• focus on meaning and understanding
• involve active participation and enquiry
• involve problem solving
• be resource rich
• require the teacher to set problems and tasks

This approach has application in legal research skills training, for we are often concerned with trying to convey the concept of structures and categories and how components fit together. So, rather than teach students by rote how to search a single database, we ought to convey principles about information search techniques and motivate students through lesson design, timing in the year and integration of subject matter with other parts of the curriculum, to pursue the testing of those principles across a range of sources.

An important element of the theory in practice is that learners should discover skills at their own speed and in a supported environment. Cognitivist researchers, such as the Russian Lev Vygotsky (1978), place emphasis on learner potential rather than achievement. Their findings have led to an increased role for supported learning using techniques such as scaffolding, group work, and guidance and coaching. Scaffolding is where the tutor continually adjusts the content of their help in response to the learner’s performance, moving gradually to a point where the learner has acquired independent problem solving skills.

This technique clearly has application in our information skills teaching, where the end goal of our work is the independent legal researcher. We need to appreciate that each of our learners is starting from a quite different level of knowledge, and that we ought to be creating learning situations which will assist, stimulate and carry forward each learner with equal efficacy. This is touching on lesson delivery techniques such as managing the learning experience and facilitation skills for workshops, which are outside the scope of this guide (see Preface).

Another aspect of the theory is the importance of interaction between learners. Learners learn extremely effectively from one another. This should inform our design of lessons and tasks. In group learning, where students are split into ‘teams’ to carry out learning, they are learning from one another. In peer learning a new dimension is added – that the results of the work of individuals or the group are reviewed and commented on by other members of the class. So, an essay or oral presentation of the findings of a piece of work undertaken by an individual or a group of individuals is reviewed by their colleagues applying assessment criteria provided by the tutor – criteria similar to those which will be used by the tutor when assessing performance of the skill under examination conditions. The criteria might include such elements as:

• thoroughness of research as evidenced in material cited verbally or contained in the bibliography
• appropriate use of standards for citations and referencing
• appropriate layout for the bibliography

Through the application of the assessment criteria to the work of their colleagues students understand better the qualities and standards tutors are seeking. Of course, there has to be much preparation by tutors to ensure peer review is carried out in an appropriate and supportive way.

I have seen both peer and group learning techniques used in legal research skills classes on the Bar Vocational Course and, for undergraduate training, the theory is applied by tutors in classes at Cardiff University which immediately follow the research element of basic law undergraduate training (see Davies and Jackson, 2005).

Experiential learning

The concept of experiential learning explores a cyclical pattern of learning from experience through reflection and conceptualisation to action and so on to further experience. This process is most widely known through Kolb’s learning cycle (Kolb, 1984):

Diagram 1: Kolb’s learning cycle

The principle is that ideas are formed and re-formed through a cycle of experience. The learning process starts with a concrete learning experience; the learners need time to reflect on what they have learnt by drawing up theories and processing the new ideas through ‘abstract conceptualisation’. During the final stage, ‘active experimentation’, learners use the theories they have drawn up to test and solve problems.

Put simply, the learner undertakes a task, reflects/thinks about what they have done, considers whether there are other ways of undertaking the task (an opportunity to compare and contrast) and, finally, tries the task again, but from a position backed by new experience and understanding.

Kolb’s learning cycle is an iterative process that describes learning not only as a process of receiving information and converting it to knowledge but also emphasises the importance of reflection and action. A recent variant on Kolb’s apparently closed, two dimensional cycle called the knowledge spiral has been put forward by Bawden and Robinson (2002). They argue that at the end of each cycle the learner’s knowledge has developed to a higher level of awareness and understanding. New learning thus commences at an increased elevation than originally, and so the level of understanding of the learner is gradually lifted further from the original starting point.

Sharon Markless (2004) offers valuable comment on the application of Kolb’s theory to the training of library users and, by analogy, legal researchers.

The important concepts here are that students need time to reflect on or discuss the learning they have experienced. The design of the learning should encourage them to construct knowledge (deep learning), not merely to reproduce it (surface learning).

Surface learning is concerned with content, the transmission of lots of knowledge. Librarian trainers can slip into learning by rote mode, requiring the regurgitation of facts and the passive acceptance of information by the learner rather than developing critical faculties in students. In surface learning the learning is either designed for, or the learners themselves adapt to, a purely utilitarian approach. Learners merely match their learning to the requirements of the course, simply regurgitating the information required but not retaining the new knowledge for any length of time. It is easy to fall into the trap of merely getting students to jump through particular hoops in order to find pieces of information and, on the way, hoping they pick up some deeper principles of, for example, the use of databases.

Deep learning, on the other hand, is concerned with process. Learners participate in activities, in problem solving, summarising and digesting new information to fundamentally change the way they think about and use information.

Those involved with vocational law courses will know that there is increasing use of the ‘reflective journal’ concept in learning. It admirably illustrates Kolb’s principles. On the Bar Vocational Course, for example, students attend classroom-based instruction in the basic skills of advocacy and court procedure, which is followed by making a number of visits to local courts to observe the proceedings. Each student creates a personal journal or diary of what they saw and reflects on how it confirms or is at variance with the classroom-based work. They are also encouraged to reflect on the advocacy they have observed as a way of improving their own level of performance in the skill.

The same Kolb learning cycle principles lie behind the assessment requirements for legal research on the Bar Vocational Course and Legal Practice Course. They require students to submit a research trail, indicating the research strategy with reflective comments on the value of the sources employed.

The concept of personal development planning (PDP) is starting to gain ground in higher education (see chapter 3, section 1). It may be appropriate to include reflections on information literacy and legal research skills in the PDP structure. Legal research skill is learned steadily over a period of time, and as the student reflects on their performance in individual research exercises the process of reflection and self critique should assist improvement in their performance of the skill.

Our legal research skills training should aim to go beyond surface learning and encourage deeper understanding. This is best achieved through embedding the skill within the law curriculum. The concept of information literacy (see chapter 1, section 4 and chapter 3 section 1) holds out the greatest hope that legal research skills training will apply and students benefit from deep learning.

Learning theory provides insights into the way people learn. As will be seen in chapter 6 learning theory needs to be taken into account when designing training using not only paper but e-learning materials. With e-learning, the tutor is not there in person to support the learning process. Appropriate learning with periods of reflection needs to be built into e-learning. The online transmission of contents or sets of closed, mechanistic questions is not likely to engage, challenge or lead to deep learning.

Summary

Three major theories of learning have been discussed. The application of behaviourist theories to legal research skills teaching is limited. Elements of social cognition theory have direct application in the way in which lessons and tasks should be designed to encourage interaction between learners. This will be taken further in chapter 4. Team working and peer learning, including techniques such as students applying assessment criteria to the work of their colleagues, will provide students with greater insight into what is meant by good legal research skills. Kolb’s experiential learning theory and the emphasis on learners having the opportunity to reflect on what they have done has influenced the design and delivery of vocational law courses. Deeper understanding of legal research skills is best achieved through embedding the skill within the law curriculum. How this may be achieved is explored in the next chapter.

References

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• Bawden D and Robinson L (2002) ‘Promoting literacy in a digital age: approaches to training for information literacy’ Learned Publishing 15(4): 297-301 (quoted in S Andretta (2005) Information literacy: a practitioner’s guide Oxford: Chandos)
• Davies J and Jackson C (2005) ‘Information literacy in the law curriculum: experiences from Cardiff’ The Law Teacher 39(2): 150-160
• Kolb D (1984) Experiential learning Englewood Cliffs: Prentice Hall
• Markless S (2004) ‘Teaching your users: what you really need to know’ Legal Information Management 4(4): 221-225
• Piaget J (1950) The psychology of intelligence London: Routledge & Kegan Paul
• Skinner B (1954) ‘The science of learning and the art of teaching’ Harvard Educational Review 24: 88-97
• Vygotsky L (1978) Mind in society: the development of higher psychological processes London: Harvard University Press

Last Modified: 4 June 2010