Category Archives: Legal Research Instruction

A psychological perspective on algorithm aversion

Berkeley J. Dietvorst, The University of Chicago Booth School of Business, Joseph P. Simmons, University of Pennsylvania, The Wharton School, and Cade Massey, University of Pennsylvania, The Wharton School, Algorithm Aversion: People Erroneously Avoid Algorithms after Seeing Them Err, Journal of Experimental Psychology: General (forthcoming).

Abstract: Research shows that evidence-based algorithms more accurately predict the future than do human forecasters. Yet, when forecasters are deciding whether to use a human forecaster or a statistical algorithm, they often choose the human forecaster. This phenomenon, which we call algorithm aversion, is costly, and it is important to understand its causes. We show that people are especially averse to algorithmic forecasters after seeing them perform, even when they see them outperform a human forecaster. This is because people more quickly lose confidence in algorithmic than human forecasters after seeing them make the same mistake. In five studies, participants either saw an algorithm make forecasts, a human make forecasts, both, or neither. They then decided whether to tie their incentives to the future predictions of the algorithm or the human. Participants who saw the algorithm perform were less confident in it, and less likely to choose it over an inferior human forecaster. This was true even among those who saw the algorithm outperform the human.

The Algorithm as a Human Artifact: Implications for Legal {Re}Search

Here’s the abstract for Susan Nevelow Mart’s very interested article The Algorithm as a Human Artifact: Implications for Legal {Re}Search (SSRN):

Abstract: When legal researchers search in online databases for the information they need to solve a legal problem, they need to remember that the algorithms that are returning results to them were designed by humans. The world of legal research is a human-constructed world, and the biases and assumptions the teams of humans that construct the online world bring to the task are imported into the systems we use for research. This article takes a look at what happens when six different teams of humans set out to solve the same problem: how to return results relevant to a searcher’s query in a case database. When comparing the top ten results for the same search entered into the same jurisdictional case database in Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel, and Westlaw, the results are a remarkable testament to the variability of human problem solving. There is hardly any overlap in the cases that appear in the top ten results returned by each database. An average of forty percent of the cases were unique to one database, and only about 7% of the cases were returned in search results in all six databases. It is fair to say that each different set of engineers brought very different biases and assumptions to the creation of each search algorithm. One of the most surprising results was the clustering among the databases in terms of the percentage of relevant results. The oldest database providers, Westlaw and Lexis, had the highest percentages of relevant results, at 67% and 57%, respectively. The newer legal database providers, Fastcase, Google Scholar, Casetext, and Ravel, were also clustered together at a lower relevance rate, returning approximately 40% relevant results.

Legal research has always been an endeavor that required redundancy in searching; one resource does not usually provide a full answer, just as one search will not provide every necessary result. The study clearly demonstrates that the need for redundancy in searches and resources has not faded with the rise of the algorithm. From the law professor seeking to set up a corpus of cases to study, the trial lawyer seeking that one elusive case, the legal research professor showing students the limitations of algorithms, researchers who want full results will need to mine multiple resources with multiple searches. And more accountability about the nature of the algorithms being deployed would allow all researchers to craft searches that would be optimally successful.

Recommended. — Joe

Lexis Advance Show Me How video series

Lexis has 50 short 1-3 minute how-to video tips for key Lexis Advance® features on its Show Me How YouTube channel. The videos cover everything from document and navigation tools to segments to terms and connectors use in Lexis Advance. The YouTube channel page text notes that some of the video demonstrate how-to tips for the latest enhancements to Lexis Advance. Recommended. — Joe

Docket-based research needed to find “submerged precedent”

“[S]ubmerged precedent pushes docketology in an uncharted direction by identifying a mass of reasoned opinions—putative precedent and not mere evidence of decision-making—that exist only on dockets,” writes Elizabeth McCuskey (Toledo) in Submerged Precedent, 16 Nevada Law Journal ___ 2016 (forthcoming)[SSRN]. Professor McCuskey adds “[s]ubmerged precedent thus raises the specter that docket-based research may be necessary in some areas to ascertain an accurate picture of the law itself, not just trial courts’ administration of it.” Here the abstract for this very interesting article:

This article scrutinizes the intensely individual, yet powerfully public nature of precedent, inquiring which decisions are made available for posterity in the body of precedent and which remain solely with their authors and the instant parties. At its broadest level, this article investigates the intricate relationships among precedent, access, and technology in the federal district courts, examining how technology can operationalize precedent doctrine.

Theory and empiricism inform these inquiries. Drawing from a sample of district court decisions on Grable federal question jurisdiction, the study presented here identifies and explores the phenomenon of “submerged precedent” – reasoned opinions hidden on court dockets, and not included in the Westlaw or Lexis databases. The study detailed here found that submergence may obscure as much as 30% of reasoned law on Grable federal questions from the view of conventional research.

This article investigates the structural and institutional forces behind submergence, as well as its doctrinal implications. By effectively insulating some reasoned opinions from future use by judges and practitioners, the phenomenon of submerged precedent threatens to skew substantive law and erode the precedential system’s animating principles of fairness, efficiency, and legitimacy. Most urgently, the existence of submerged precedent suggests that Congress’s mandate for public access to federal precedents in the E-Government Act of 2002 lies unfulfilled in important respects. The application of precedent theory informed by empirical observation suggests a more thoughtful approach to technology and public access to precedent.

— Joe

What is the ideal design for a basic legal research program?

In The State of Legal Research Education; A Survey of First Year Legal Research Programs or ‘Why Johnny and Jane Cannot Research’ [SSRN] Washington and Lee’s Caroline Osborne identifies the following four elements in the ideal design for a basic legal research class:

  1. A required research class of a minimum of two credits taught in the spring semester of the first year (1 credit) and the fall semester of the two-L year (1 credit).
  2. A professor with both a JD and an MLS or MIS, preferably admitted to the bar and possessing some experience in the practice of law or an equivalent level of practical experience.
  3. A grading schema equivalent to that of the first year doctrinal courses.
  4. A curriculum that includes research strategy; the fundamental resources of secondary sources, case research, statutory research and the administrative state; problem-solving; and concepts of efficiency and effectiveness.

Here’s the paper’s abstract:

Dissatisfaction with the research skills of the new associate is an oft-repeated refrain. This article explores the state of research education in the law school curriculum. Questions explored include: whether or not legal research is a required first year class; the number of semester of research instruction; the expertise of the professor; number of credits awarded for legal research, scope of the curriculum and observed challenges. Also considered is the impact of a more vigorous writing focus on research skills education. Survey data collected from the two hundred ranked law schools is used to explore these questions and as the basis for reforming research education.

Recommended. — Joe

LLSDC adds Congressional Record sources to its Legislative Source Book

From the announcement by Rick McKinney (Federal Reserve Board Law Library):

The Legislative Research Special Interest Section of the Law Librarians’ Society of Washington, D.C., Inc. (LLSDC) is pleased to announce a new addition to its Legislative Source Book entitled “Sources for the Congressional Record: Free and Commercial”. The new website contains a list with links to most all online sources for the Congressional Record, free and commercial, with dates of coverage, including the bound Record, the daily edition, the Congressional Record Index, and predecessors to the Congressional Record. Also included are brief notations about search, browse, print, and cite retrieval capabilities of the sources as well information on libraries with paper and microform issues. Finally there are a number of links to aid researchers in understanding the Congressional Record, its history, its volume numbers, and what is or is not included in the pages of the Record.

Visit LLSDC’s Legislative Source Book. — Joe

Legal Analytics, A Legal Writing Conference, and Bats Turn Into Turkeys

Yes, it’s been a while.  Between the ever present health issues and building and teaching a set of lesson plans on legal research to our first year students, it’s been tough to get back to the blog.  Well, the teaching part is essentially over until the first week of classes in January.  Let me catch up with a few things, a couple of business and one essentially fun.

The first business item is the announcement I received recently noting that Lexis has purchased Lex Machina:

Today LexisNexis announced that it has acquired Silicon Valley-based Lex Machina, creators of the award-winning Legal Analytics platform that helps law firms and companies excel in the business and practice of law.

A look into the near future. The integration of Lex Machina Legal Analytics with the deep collection of LexisNexis content and technology will unleash the creation of new, innovative solutions to help predict the results of legal strategies for all areas of the law.

With its acquisition, Lex Machina becomes part of the ongoing LexisNexis commitment to offer modern, next-generation solutions that help legal professionals work more efficiently, make better-informed decisions and drive success for their clients, practice and business.

The acquisition is described as a “prominent and fresh example of how a major player in legal technology and publishing is investing in analytics capabilities.”  I can understand that.  As we grew up with Lexis and Westlaw we were taught (or taught) the utility of field searching.  The available information in a document allowed us to search particular judges or attorneys to do our own analysis of their involvement with topics and issues.  We have the ability today to make more detailed analyses.

Expert witness reports are where Lexis and Westlaw mostly provide background information and the track record of particular witnesses.  Both companies offer comprehensive details because there is quite a market for experts in litigation.  Lex Machina is identified with analytics associated with copyright and a few other forms of intellectual property.  I can imagine Lexis and Westlaw expanding analytics for other litigation prone subjects such as medical malpractice and products liability.  I can see this as a new area of competition between the major research databases.

The second business item is a one day conference at Ohio State University:

OSU reference librarian Ingrid Mattson is co-chairing a great one-day conference for the Legal Writing Institute.  I’m sharing the announcement just in case you’d like to attend.  There are several presentations by ORALL members.

Join us in Columbus, Ohio, on December 11 for our one-day workshop, “Collaboration In and Out of the Legal Writing Classroom.” Topics include collaborating with legal writing colleagues for successful scholarship; students working together in the classroom; librarians and legal writing faculty joining forces for more effective research instruction; and connecting with casebook and clinical faculty, the community outside the law school, and university offices to provide meaningful, resource-conscious instruction.

Our workshop website, which includes program details and hotel information, can be found here. Workshop registration can be found here.

Columbus offers a number of unique experiences year round and particularly during the holiday season. Consider staying through the weekend to enjoy a dessertcoffee, or beer tour of a city with a dynamic food scene. Those who are more literary-minded will enjoy a Dickens of a Christmas and a Dickens Dinner at the historical Ohio Village. If you have an interest in politics, history, or architecture, touring the Ohio Statehouse is fun and free. A short walk from the workshop site you can explore the Billy Ireland Cartoon Library and Museum. Finally, for anyone visiting with children or who fondly remembers Jack Hannah and the Columbus Zoo on David Letterman, check out the zoo’s extraordinary holiday light tradition, Wildlights. For more information on the exciting goings-on in Columbus, visit Experience Columbus.

Columbus truly is the heart of it all. We are driving distance from places like Indianapolis, Pittsburgh, Lexington, Chicago, Charleston; and a non-stop flight away from pretty much everywhere else.
We hope to see you in December! For more information about the conference, please feel free to contact us at Kelly.864@osu.edu or Mattson.30@osu.edu.

The conference cost is a very reasonable $45 aside from any lodgings.  I’m not expecting to sample the charms of Columbus while I’m there.  I was interested in going to a Blue Jackets game but it turned out the team is on the road in Winnipeg on December 10th.  The Islanders come in to Nationwide Arena on the 12th but unfortunately I can’t stay over.

And now the fun part.  As part of the Halloween picture extravaganza, I shared costumes and decorations from a number of libraries.  One of those picture sets from Wayne State included periodicals turned into bat decorations.  Well, it seems the bats have turned into turkeys for the coming holiday.  See the pictures below.

Thanksgiving 2 Thanksgiving 3 Thanksgiving 1

Well, I hope to publish more frequently now that my major semester project is effectively over.

Mark

Libguides Are Appearing in Google Scholar Results

I’m in the middle of creating lesson plans for three introductory legal research classes to be taught to first year students by librarians next month.  That’s one reason why there has been a lack of posts in the last couple of weeks, among others.  The task is, how can I put it, time consuming.  That’s another story.

I thought I’d take a moment this afternoon and wander through Google Scholar to see what literature it contains on the process of legal research.  I did the obvious and searched the phrase “legal research.”  At about two or three pages into the search I noticed an entry for Land Use, Planning, and Zoning Legal Research Guide: Home by Vicky Gannon at Pace University.  The citation came up because the title contains the words “legal research.”  I have to admit that I had not expected a libguide to be one of the results in Google Scholar as I had not seen any prior to today.  I use Scholar a lot.  I mean, a lot.

I decided that I would try and search the word “libguide” all by itself and sure enough there were citations linking to any number of guides mixed in with the scholarly articles about the use of libguides.  Many of them were listed as [citation] which linked to an entry in either Bepress or a university commons page that in turn linked to the actual guide.  I found this all quite interesting.  Scholar apparently can be another vehicle for researchers to get to the intellectual output of a law library staff.  My suggestion is for all of you out there to give it a try.  Create some sample searches and see what happens.  I know I will.  This may be another strategy I can use in teaching or advising at the reference desk.

Mark

Ethical considerations in using visual rhetorical techniques in legal writing

Available on SSRN, Michigan Law School prof Michael D. Murray’s The Ethics of Visual Legal Rhetoric is a timely contribution to the legal writing literature. Here’s the abstract:

This Article discusses the application of visual rhetorical techniques in legal writing and the ethical questions that are raised regarding the use of these techniques. It is likely that visual rhetoric will be used in brief writing and general legal communications at an increasing rate because the research and scholarship of a wide range of disciplines — law and popular culture, cognitive studies and brain science, data visualization studies, and modern argument theory in rhetoric — indicate the communicative power of visual techniques. This fact coincides with the development of technology in the production of legal documents, and technology in the reading and reception of legal documents, that allow judges and attorneys to access full-color graphics, imbedded video, and multimedia content, and follow hyperlinks in the normal course of reading legal briefs and memoranda.

The recognition in the literature that visual rhetoric is rapid, efficient, constructive, and persuasive reveals the potential of visual rhetorical devices to serve as topics and tropes in legal discourse to construct meaning and to inform and persuade legal audiences. The visual rhetorical topics and tropes inspire inventive thinking about the law that constructs meaning, for the author and the audience. For many members of the legal writing discourse community — judges, practitioners, government agencies, and academics — the modes of persuasion of visual rhetoric can construct meaning and improve the persuasiveness of legal discourse generally in content, arrangement, and style.

Attorneys should fulfill their professional responsibility to use the best practices to represent the interests of their clients in law practice. However, the cautions of scholars as to the dangerous power of visuals to deceive or to overpower more deliberative forms of rational thought and analysis are not lightly to be dismissed. The speed and power of visuals is seductive. Visual topics and tropes are subject to abuse, and must be used ethically and with careful regard to their propriety as a tool to create meaning and inspire imagination, and not used as a tool of deception or obfuscation within the rhetorical situation at hand. I conclude that visual rhetorical devices are a proper form of legal rhetoric if they are used to construct knowledge and understanding of the meaning and message of the communication and do not mislead or prejudice the audience’s reception or understanding of the communication.

Recommended. — Joe

Westlaw Gets Into The Cloud Business, Sort Of

At least in the Academic version.  I received an email yesterday promoting new features in Westlaw for the coming academic year.  One of them is:

Share Your Uploaded Documents

This exciting new feature will let you share user uploads with professors, students, study groups, research assistants, journals and law reviews, moot court and clinics.

  • Upload your own documents into your WestlawNext® folders.
  • Add citations, hyperlinks, and KeyCite flags to online documents.
  • Annotate (add highlights and notes) to your own content.

Previously one could only designate and share items that were flagged from Westlaw content.  It certainly is an interesting play to get students and faculty to spend more time on Westlaw.  More information is in an audio tutorial here.

Mark

Print Isn’t Dying, It’s Just Shrinking

There is an interesting discussion going on at my library.  As others may be doing, we are considering the proper mix between print and online resources.  ABA law school accreditation Standard 606 now allows for “a core collection of essential materials through ownership or reliable access.”  It’s that last part, “reliable access,” that triggers deep soul searching of what to buy in print or what to buy as an electronic subscription.  Tempering the rule are other qualifications that state the core collection should support faculty scholarship and the curriculum, and that a collection that consists of a single format may violate Standard 606.

In this context I’ve recommended that we drop the National Reporter System, ALRs, CJS, multiple state codes, and selected treatises that are online.  This may sound radical to some.  I know that law schools and libraries are experiencing budget cuts due to lower enrollment.  That drives part of the analysis.  Another factor that bears thought is what we teach these days.  The legal writing program at DePaul started teaching all electronic research.  We experienced a drop in library visits as a consequence.  No more treasure hunts, no answering the same questions over and over at the reference desk.

I can remember how far we’ve come in electronic access.  We used to teach print resources because that’s what the legal market had out there.  Now electronic access to case law and other primary sources is ubiquitous.  At one time it was viable to teach print because the databases were based on print.  Understand the organization of print and the online version would make more sense.  That’s not so true anymore.  Online database providers no longer think in terms of echoing print other than citation and star paging.  Certainly there was a time when case law on Westlaw was organized by reporter.  Not anymore.  It’s all jurisdictional, and that seems natural now compared to looking for a database containing the Northeastern Reporter.

Look at how citators have changed.  There was a time when Shepards online would be no more current than the latest print update.  Even the CD-ROM product mirrored print.  Now everything is dynamic.  I can’t imagine why anyone would want to subscribe to the print edition at this point.  We cancelled our print copies years ago. If anything was made easier by online access, Shepards, KeyCite, and citators in general are it.  They are more complete, can be filtered, and everything is spelled out instead of interpreting symbols attached to citations.

Then there are law reviews.  I have to say how much I like Hein Online when it comes to law reviews.  Everything back to day one is there in PDF format more or less.  We still get paper copies of law reviews but discard them once they appear on Hein.  No more binding these books for the collection.  Google Scholar works as a handy index to Hein content as well as other scholarly databases.

So now the next question is what is the proper mix for print and online?  I know that some libraries have already dropped major primary resources such as reporters.  In one sense, we are behind the curve on making that set of decisions.  Never in my career had I thought I would be part of this kind of decision.  Times change.  I find that I’m not very sentimental about physical materials that no one uses at my library.

Mark

The New Lexis Advance

The new Lexis Advance interface is supposed to hit screens everywhere on September 8, at least according to this announcement from Lexis.  I can’t say enough bad things about the old (current) interface.  I hope the usability of the new interface is better, otherwise it’s back to the Lexis.com option hidden in the Research Tab.  –Mark

Another Lexis Video, and Oh My!

I found another Lexis video published today promoting LexisAdvance.  It’s available hereTry freeze-framing it around 1.46 or so.  You’ll see something like this image which I provide by way of screen capture.  All I can say is I didn’t know the United States Supreme Court published its opinions in the 4th Series of California Reports.   I wonder how long this is going to stay up?Screen Shot 2014-05-06 at 3 21 08 PM  I’ve got a bad feeling about this. — Mark

 

More On The New LexisAdvance Interface

There is a longer video from Lexis on the new LexisAdvance interface which reveals more detail about the interface.  There are obvious improvements compared to what currently exists.  I’m not convinced until trying it out.  My uncertainty has more to do with whether the functionality is conducive to work flow.  Lexis seems to think it is.  We’ll see.  As of this writing there are 423 views and no comments for the six minute video. The video is on YouTube here.  While we’re on the subject of videos, some may want to view this video concerning the LexisNexis Digital Library for Law Schools.  –Mark

Short Takes On The News: Legal Writing is Dull, Tuition War, and Academic Library Stats

If readers haven’t seen the essay on legal writing by Bryan A. Garner published in the February issue of the ABA Journal, here’s a link to it on the Journal’s web site.  It’s hard to argue with the essay that begins with these words:

Legal writing is notoriously dull, slow, cumbersome, obtuse, roundabout and pedantic. There are many reasons: (1) unnecessary jargon, (2) overreliance on abstract nouns, (3) overlong sentences, (4) overlong paragraphs, and (5) the failure to differentiate between useful and useless details.

One of the main arguments is to place citation in footnotes rather than in the text.  The result will be a clearer writing style that communicates appreciably better.  Naturally, there is pushback in the comments.  I have to admit that reading cases, memoranda, and other legal documents when I was in law school pretty much killed most any desire on my part to read long form.  Putting it another way, I don’t read for fun at this point.  I suspect I’m not alone, which may explain why cat videos are so popular on the Internet.  I still have dreams featuring never-ending Civil Procedure I lecture where I’m trying to fathom in rem and in personam jurisdiction.

In other news, the Kansas City Star reports on the tuition war going on between the UMKC School of Law and the University Of Kansas School Of Law.  The border position of both schools between Missouri and Kansas offer options for in-state tuition rates for potential students from either state.  Yes, it’s come to this.  While we’re at it, here is the latest application statistics from the LSAC:

As of 2/7/14, there are 227,912 fall 2014 applications submitted by 32,532 applicants. Applicants are down 11.1% and applications are down 12.2% from 2013.

Last year at this time, we had 62% of the preliminary final applicant count.

Last year at this time, we had 67% of the preliminary final application count.

Not good.

Finally, the National Center for Education Statistics released its annual report on academic libraries called Academic Libraries: 2012 First LookInside Higher Ed has short commentary on the report.  – Mark

Bradley’s Advanced Internet Searching

Hat tip to Stephen Abram’s post for the below stack by Phil Bradley. — Joe

RIPS issues call for contributions to the RIPS Teach-In Kit

From the announcement:

Do you have a great lesson plan or assignment that you’d be willing to share?  How about handouts or PowerPoint slides?  If so, then we need your help!

The RIPS Teach-In Kit Committee is currently accepting submissions for the 2014 Teach-In Kit.  The Teach-In Kit is a resource where law librarians can share materials and ideas to help improve legal research instruction.  We hope you’ll consider helping out your colleagues by submitting your materials to this year’s Kit.  We invite you to send contributions as email attachments to Shawn Nevers at neverss@law.byu.edu.

Prior contributions have included course syllabi, lesson plans, research guides, assignments, lecture notes, handouts, examinations, quizzes, PowerPoint slides, tutorials and games.  Examples of past submissions can be found in kits from previous years.

The deadline for contributions is Friday, January 24, 2014. Thanks in advance for your contributions!

— Joe

What role should the legislative drafting process play in statutory interpretation?

In his recent Download of the Week post, Solum wrote “this is important research, combined with deeply interesting theorizing.” He was referring to Statutory Interpretation from the Inside – An Empirical Study of Congressional Drafting, Delegation and the Canons: Part II, Stanford Law Review, forthcoming, by Abbe R. Gluck and Lisa Schultz Bressman. Part I was published earlier this year. Here are the abstracts for both.

Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I [SSRN], 65 Stanford Law Review 901 (2013):

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.

All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how “neutral” some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.

Statutory Interpretation from the Inside – An Empirical Study of Congressional Drafting, Delegation and the Canons: Part II [SSRN]:

This is the second of two Articles relaying the results of the most extensive survey to date of 137 congressional drafters about the doctrines of statutory interpretation and administrative delegation. The first Article focused on our respondents’ knowledge and use of the interpretive principles that courts apply. This second Article moves away from the judicial perspective. Our findings here highlight the overlooked legislative underbelly: the personnel, structural and process-related factors that, our respondents repeatedly volunteered, drive the details of the drafting process more than do judicial rules of interpretation. These factors range from the fragmentation caused by the committee system; to the centrality of nonpartisan professional staff in the drafting of statutory text; to the use of increasingly unorthodox legislative procedures – each of which, our respondents told us, affects statutory consistency and use of legislative history in different and important ways. Our respondents also painted a picture of legislative staffers in a primary interpretive conversation with agencies, not with courts, and as using different kinds of signals for their communications with agencies than courts consider.

Most of the structural, personnel and process-related influences that our respondents emphasized have not been recognized by courts or scholars, but understanding them calls into question almost every presumption of statutory interpretation in current deployment. These findings have significance for textualism, purposivism and beyond. They undermine the claims of proponents of each theory that theirs is the most democracy-enhancing, because none makes satisfactory efforts to really reflect congressional expectations. Our findings challenge textualism’s operating assumption that text is the best evidence of the legislative bargain and suggest more relevant – but still-formalist – structural features that might do better. They reveal that although purposivists or eclectic theorists may have the right idea with a more contextual approach, many of factors on which they focus are not the same ones that Congress utilizes. With respect to delegation, for both types of theorists, Chevron now seems too text- and court-centric, in the light of our findings, to actually capture congressional intent to delegate, which has been its asserted purpose.

In the end, our findings raise the question whether the kind of “faithful agent” approach to interpretation that most judges currently employ – one aimed effectuating legislative deals and often focused on granular textual details – can ever be successful. We thus look to different paradigms less dependent on how Congress works, including rule-of-law and pragmatic approaches to interpretation. These alternatives respond to the problem of the sausage factory, but pose different challenges in light of the modern judicial sensibility’s pronounced concern with legislative supremacy.

See also the authors’ Methods Appendix for their two-part series. — Joe

When old habits refuse to die, research instructors try to improve them

Try as research instructors do, one can’t get around the fact that researchers are going to turn to Google Search. One might as well be realistic by providing detailed instruction on how to get the most out of Google Search. Christa Burns and Michael P. Sauers’ new work could be handy for this task. From the ALA Bookstore blurb:

Google Search Secrets
Christa Burns and Michael P. Sauers
Item Number: 978-1-55570-923-5
Publisher: ALA Neal-Schuman
Price: $48.00

Google can be an incredibly powerful tool for research, but the top-of-the-page results are seldom the most beneficial to library users and students, and many of the search engine’s most useful features are hidden behind its famously simple interface. Burns and Sauers reveal the secrets of effective Google searches in this invaluable resource showing how to get the most out of the service, with

  • An overview of all the tool’s search services, including Image, Maps, News, Blogs, Discussions, Scholar, Patents, and Books
  • Ready-to-use instructions on how to go beyond the simple search box and top results to get library users the answers they need, fast
  • Straightforward guidance on using filters to refine search results, with examples of common searches like images with Creative Commons licenses, news searches set for a date range or into an archive, and videos with closed captioning
  • An explanation of the bibliography manager feature of Google Scholar, which allows students and researchers to build bibliographies with ease
  • Tips for configuring Safe Search on workstations in children’s departments and schools
  • Copious screenshots walk readers through each topic step by step, making this a true how-to guide for everyone who uses Google.

— Joe

Measuring search quality

Angel Sancho Ferrer, Research & Development Director in Content & Online Services (COLS),  Wolters Kluwer, South Europe, asks “how to measure search quality?” in a recent Intelligent Solutions Blog post. From a vendor’s perspective, he writes in his lead-up to answering the question:

To measure search quality helps us to improve our market position as it let us know (a) what are we able to do or not, (b) what are our competitors able to do or not, and (c) how should we act accordingly. By identifying pain points and proof points we can compare better our quality and communicate it better.

Ferrer discusses the issue in qualitative, one may say subjective, terms (see below) without going into metrics. That being said, How to Measure Search Quality? is still recommended reading. The post can, for example, be used as an introduction to teaching legal research in both print and electronic formats.

Do note that “searching for a particular document” probably refers to a look-up search for a known document, not TR Legal’s early marketing nonsense about how WLN’s West Search was great for finding that mythical one document which addresses all issues (and hopefully in the client of the researcher’s favor). — Joe

Level_of_subjectivity_in_the_evaluation_on_search_quality2-570x286