11.4 Research in Emerging Areas of Law

Emerging areas of law are like uncharted territory. They're constantly changing, with few established rules to guide us. This makes research tricky, as we often lack reliable sources and precedents to fall back on.

To navigate these new legal frontiers, we need to get creative. We'll explore strategies for staying up-to-date, adapting our research methods, and evaluating sources critically. It's all about being flexible and thinking outside the box.

Staying Current with Emerging Law

Characteristics of Emerging Legal Areas

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• Emerging areas of law are characterized by rapid change, limited precedent, and a scarcity of authoritative sources, requiring legal researchers to employ adaptive strategies to stay current
• These areas often involve cutting-edge issues related to technology, science, or social developments that outpace the legal system's ability to keep up (artificial intelligence, cryptocurrency)
• The lack of established legal frameworks and the constantly evolving nature of these fields make it challenging for researchers to find reliable and up-to-date information

Strategies for Monitoring Legal Developments

• Effective strategies for monitoring legal developments in emerging areas include regularly reviewing legal news aggregators, blogs, and journals focused on cutting-edge legal topics
  • Set up RSS feeds or email subscriptions to receive updates from relevant sources (Law360, TechCrunch)
  • Dedicate time each week to browsing these sources and identifying significant developments
• Attending conferences, webinars, and workshops on emerging legal issues provides opportunities to learn from experts and engage with the latest research and analysis
  • Look for events hosted by professional associations, law schools, or think tanks specializing in emerging legal topics (Stanford CodeX, Berkman Klein Center)
  • Actively participate in discussions and network with other attendees to gain insights and perspectives
• Following thought leaders, scholars, and practitioners in emerging legal fields on social media and subscribing to their newsletters can help identify significant developments and trends
  • Identify influential figures in the field and follow them on Twitter, LinkedIn, or other platforms (Ryan Calo, Lydia Loren)
  • Sign up for their newsletters or email updates to receive curated content and analysis
• Setting up alerts for keywords, cases, and legislation related to emerging legal topics enables researchers to receive timely updates on new developments
  • Use tools like Google Alerts or Westlaw Alerts to monitor specific terms, cases, or statutes
  • Regularly review and refine alert settings to ensure they capture relevant information without overwhelming the researcher
• Collaborating with librarians, colleagues, and experts in other disciplines can expose researchers to diverse perspectives and help identify relevant sources and developments in emerging areas of law
  • Consult with law librarians who specialize in emerging legal topics and can provide guidance on research strategies and resources
  • Engage in interdisciplinary research projects or discussions with colleagues from other fields (computer science, bioethics) to gain insights into the broader context of emerging legal issues

Adapting Research for Novel Issues

Challenges of Researching Novel Legal Issues

• Novel legal issues often lack direct precedent, requiring researchers to draw analogies and distinctions between existing case law and emerging fact patterns
  • Identify relevant cases that share similar legal principles or policy considerations, even if the specific facts differ (applying traditional privacy concepts to facial recognition technology)
  • Analyze the reasoning and arguments used in analogous cases to determine their applicability to the novel issue at hand
• When faced with limited primary sources, researchers may need to rely more heavily on secondary sources, such as law review articles, treatises, and policy papers, to gain a foundational understanding of emerging legal concepts
  • Use secondary sources to identify key legal theories, arguments, and policy considerations relevant to the novel issue
  • Trace citations in secondary sources to locate additional primary and secondary authorities that may be relevant

Expanding Research Strategies

• Expanding search queries to include broader terms, related concepts, and interdisciplinary sources can help uncover relevant information and arguments when researching novel legal issues
  • Use keyword searches that encompass related legal doctrines, policy considerations, or scientific principles (search for "data privacy" and "informed consent" when researching genetic privacy issues)
  • Incorporate synonyms, alternative phrases, and discipline-specific terminology to capture a wider range of potentially relevant sources
• Researchers may need to look beyond traditional legal databases and explore sources such as government reports, scientific studies, and international law to address the unique challenges of emerging legal topics
  • Consult databases and repositories specific to the relevant field or industry (PubMed for medical research, arXiv for computer science)
  • Review international legal instruments, foreign laws, and case law to identify approaches and arguments that may be applicable to domestic legal issues
• Employing creative research strategies, such as searching for persuasive authority from other jurisdictions or using non-legal sources to support policy arguments, can help fill gaps in the available legal authority on novel issues
  • Look for court decisions, regulations, or legislative materials from states or countries that have addressed similar legal questions (examining European Union data protection laws when researching U.S. privacy issues)
  • Use social science research, economic analyses, or public opinion polls to bolster arguments about the potential impacts or policy implications of a novel legal approach

Evaluating Sources in Emerging Areas

Importance of Source Evaluation

• Evaluating the credibility and authority of sources is particularly important in emerging areas of law, where there may be a proliferation of untested or conflicting information
  • The rapid pace of change and the lack of established legal precedent can lead to a wide range of opinions and analyses, some of which may be speculative or unreliable
  • Researchers must exercise critical judgment in assessing the quality and trustworthiness of sources to ensure the accuracy and validity of their legal analysis

Factors to Consider in Source Evaluation

• Key factors to consider when assessing the credibility of sources on emerging legal topics include the author's expertise, the publication's reputation, and the timeliness of the information
  • Look for authors with relevant academic credentials, professional experience, or a track record of scholarship in the specific legal area (a law professor with a Ph.D. in computer science writing about AI regulation)
  • Prioritize sources from well-established legal publications, academic presses, or reputable organizations known for their expertise in the field (a report from the Electronic Frontier Foundation on digital privacy issues)
  • Consider the date of publication and whether the source reflects the most current legal developments, technological advancements, or social trends relevant to the emerging issue
• In the absence of authoritative primary sources, researchers should prioritize secondary sources authored by recognized experts in the field, such as law professors, practitioners, and policymakers
  • Rely on treatises, practice guides, and other comprehensive works written by leading scholars or practitioners in the emerging legal area (a book on blockchain law by a partner at a prominent technology law firm)
  • Look for amicus briefs, policy statements, or congressional testimony from respected organizations or individuals with expertise in the field (an amicus brief from the American Medical Association on gene patenting)
• Peer-reviewed journals and publications from reputable legal organizations carry more weight than self-published or unverified sources when researching emerging legal issues
  • Prioritize articles published in well-regarded law reviews, specialty journals, or peer-reviewed publications in relevant disciplines (a study on autonomous vehicles in the Journal of Law and Mobility)
  • Be cautious of relying on blog posts, op-eds, or other self-published sources that may lack the same level of editorial oversight or expert review as traditional legal publications
• Researchers should consider the potential biases and motivations of sources, particularly when dealing with cutting-edge legal topics that may be subject to political or ideological influences
  • Be aware of the funding sources, institutional affiliations, or political leanings of authors or organizations producing research on emerging legal issues (a think tank funded by a particular industry or advocacy group)
  • Evaluate whether the source presents a balanced and objective analysis of the legal issue, or whether it appears to be advocating for a particular position or outcome
• Verifying information from multiple, independent sources and assessing the quality of the underlying research and analysis can help ensure the reliability of sources in emerging areas of law
  • Look for consistency across different sources in their treatment of legal principles, key facts, or policy considerations related to the emerging issue
  • Examine the methodology, data sources, and logical reasoning employed in the source's analysis to determine its soundness and persuasiveness

Synthesizing Diverse Sources for Legal Analysis

The Need for Interdisciplinary Research

• Emerging areas of law often require researchers to look beyond traditional legal sources and draw upon knowledge from other disciplines, such as science, technology, and social sciences
  • Many novel legal issues arise at the intersection of law and other fields, necessitating an interdisciplinary approach to research and analysis (examining the psychological impact of social media in developing online harassment laws)
  • Incorporating insights from diverse disciplines can provide a more comprehensive understanding of the complex factors underlying emerging legal problems and help develop effective legal solutions

Strategies for Identifying and Integrating Relevant Sources

• Identifying the key issues and questions underlying an emerging legal topic can help guide the selection and integration of relevant sources from diverse fields
  • Break down the legal problem into its component parts and identify the legal principles, policy considerations, and factual questions that need to be addressed (analyzing the technical aspects of encryption when researching law enforcement access to digital evidence)
  • Use this issue-spotting process to determine which disciplines or areas of expertise may have relevant knowledge or insights to contribute to the legal analysis
• When synthesizing research from unconventional sources, it is important to consider how the information relates to legal principles and arguments, and to draw clear connections between the sources and the legal analysis
  • Evaluate the implications of scientific findings, economic theories, or social science research for the interpretation and application of legal rules and doctrines
  • Use interdisciplinary sources to provide context, explain technical concepts, or support policy arguments, but always tie the information back to the legal issues at hand

Techniques for Effective Synthesis

• Researchers should strive to find common themes and points of convergence among diverse sources, while also acknowledging and addressing any contradictions or inconsistencies
  • Look for areas of agreement or complementarity between legal and non-legal sources that can strengthen the overall analysis and arguments (using public health research to support legal arguments for tobacco regulation)
  • Identify and reconcile any conflicting information or perspectives, and explain how the legal analysis accounts for or resolves these discrepancies
• Effective synthesis of research in emerging areas of law requires critical thinking skills to evaluate the relevance, reliability, and persuasiveness of sources in the context of the legal issue at hand
  • Assess the quality and credibility of each source, considering factors such as the author's expertise, the publication's reputation, and the strength of the underlying research or analysis
  • Determine how each source fits into the larger legal argument and whether it provides valuable insights or evidence to support the researcher's conclusions
• Presenting a well-organized, logically structured argument that integrates research from diverse sources can strengthen the credibility and persuasiveness of legal analysis in emerging areas
  • Use clear headings, transitions, and summaries to guide the reader through the analysis and show how different sources and ideas relate to one another
  • Provide explicit explanations and examples of how interdisciplinary research informs or supports the legal conclusions, rather than assuming the connections will be self-evident to the reader