Category Archives: Legal Research Instruction

What happens when five Supreme Court justices can’t agree?

What Happens When Five Supreme Court Justices Can’t Agree? (LSB10113, Apr. 5, 2018) begins by discussing the current doctrinal framework for determining what opinion should govern when no opinion commands a majority vote. The Sidebar then explores the facts and issues involved in Hughes before examining Hughes’s potential impact. — Joe

CRS on theories, tools and trends in statutory interpretation

From the introduction to Statutory Interpretation: Theories, Tools, and Trends (R45153, Apr. 5, 2018):

The two main theories of statutory interpretation — purposivism and textualism — disagree about how judges can best adhere to this ideal of legislative supremacy. The problem is especially acute in instances where it is unlikely that Congress anticipated and legislated for the specific circumstances being disputed before the court. While purposivists argue that courts should prioritize interpretations that advance the statute’s purpose, textualists maintain that a judge’s focus should be confined primarily to the statute’s text.

Regardless of their interpretive theory, judges use many of the same tools to gather evidence of statutory meaning. First, judges often begin by looking to the ordinary meaning of the statutory text. Second, courts interpret specific provisions by looking to the broader statutory context. Third, judges may turn to the canons of construction, which are presumptions about how courts ordinarily read statutes. Fourth, courts may look to the legislative history of a provision. Finally, a judge might consider how a statute has been—or will be—implemented. Although both purposivists and textualists may use any of these tools, a judge’s theory of statutory interpretation may influence the order in which these tools are applied and how much weight is given to each tool.

This report begins by discussing the general goals of statutory interpretation, reviewing a variety of contemporary as well as historical approaches. The report then briefly describes the two primary theories of interpretation employed today, before examining the main types of tools that courts use to determine statutory meaning. The report concludes by exploring developing issues in statutory interpretation.

— Joe

Nourse’s Misreading Law, Misreading Democracy

Here’s the blurb for Victoria Nourse’s Misreading Law, Misreading Democracy (Harvard UP, 2016):

American law schools extol democracy but teach little about its most basic institution, the Congress. Interpreting statutes is lawyers’ most basic task, but law professors rarely focus on how statutes are made. This misguided pedagogy, says Victoria Nourse, undercuts the core of legal practice. It may even threaten the continued functioning of American democracy, as contempt for the legislature becomes entrenched in legal education and judicial opinions. Misreading Law, Misreading Democracy turns a spotlight on lawyers’ and judges’ pervasive ignorance about how Congress makes law.

Victoria Nourse not only offers a critique but proposes reforming the way lawyers learn how to interpret statutes by teaching legislative process. Statutes are legislative decisions, just as judicial opinions are decisions. Her approach, legislative decision theory, reverse-engineers the legislative process to simplify the task of finding Congress’s meanings when statutes are ambiguous. This theory revolutionizes how we understand legislative history—not as an attempt to produce some vague notion of legislative intent but as a surgical strike for the best evidence of democratic context.

Countering the academic view that the legislative process is irrational and unseemly, Nourse makes a forceful argument that lawyers must be educated about the basic procedures that define how Congress operates today. Lawmaking is a sequential process with political winners and losers. If lawyers and judges do not understand this, they may well embrace the meanings of those who opposed legislation rather than those who supported it, making legislative losers into judicial winners, and standing democracy on its head.

— Joe

CRS on eight methods of constitutional interpretation

“When exercising its power to review the constitutionality of governmental action, the Supreme Court has relied on certain ‘methods’ or ‘modes’ of interpretation—that is, ways of figuring out a particular meaning of a provision within the Constitution. This report broadly describes the most common modes of constitutional interpretation; discusses examples of Supreme Court decisions that demonstrate the application of these methods; and provides a general overview of the various arguments in support of, and in opposition to, the use of such methods of constitutional interpretation” is how Modes of Consitutional Interpretation (March 15, 2018 R45129) starts its overview of methods of constitutional interpretation.

Modes of constitutional interpretation covered by the report are:

  1. Textualism
  2. Original Meaning
  3. Judicial Precedent
  4. Pragmatism
  5. Moral Reasoning
  6. National Identity
  7. Structuralism
  8. Historical Practice

— Joe

Susan Nevelow Mart’s Results may vary in legal research databases published in ABA Journal

“Call me naive,” wrote Bob Ambrogi about the conclusions reached by Susan Nevelow Mart in her excellent research found in The Algorithm as a Human Artifact: Implications for Legal {Re}Search, “but I would have thought that entering the identical search query on, say, both Westlaw and Lexis Advance would return fairly similar results.” I was somewhat shocked that Bob hadn’t realized what law librarians have known for 40 years, an insight made even more important since WEXIS implemented “black box” searching because it won’t release proprietary information about the construction of their search algorithms.

Perhaps the editors of the ABA Journal thought their readers might also be naive because the Journal published a summary of Nevelow Mart’s research results in the March issue. See Results may vary in legal research databases by Susan Nevelow Mart. Here’s a snip:

At first glance, the various legal research databases seem similar. For instance, they all promote their natural language searching, so when the keywords go into the search box, researchers expect relevant results. The lawyer would also expect the results to be somewhat similar no matter which legal database a lawyer uses. After all, the algorithms are all trying to solve the same problem: translating a specific query into relevant results.

The reality is much different. In a comparison of six legal databases—Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel and Westlaw—when researchers entered the identical search in the same jurisdictional database of reported cases, there was hardly any overlap in the top 10 cases returned in the results. Only 7 percent of the cases were in all six databases, and 40 percent of the cases each database returned in the results set were unique to that database. It turns out that when you give six groups of humans the same problem to solve, the results are a testament to the variability of human problem-solving. If your starting point for research is a keyword search, the divergent results in each of these six databases will frame the rest of your research in a very different way.

Highly recommended. This ABAJ article should be assigned reading for law school students — all law school students, not just 1Ls taking their LRW courses. — Joe

The duty of technology competence in the algorithmic society

Comment 8 to Model Rule 1.1: Maintaining Competence

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

From the abstract of Jamie Baker’s Beyond the Information Age: The Duty of Technology Competence in the Algorithmic Society, 69 South Carolina Law Review ___ 92018):

While law has generally been slow to adapt to technological change, the ABA Model Rules of Professional Conduct amended the Duty of Competence language to include a Duty of Technology Competence. This duty requires lawyers to keep abreast of “changes in the law and its practice, including the benefits and risks associated with relevant technology.” A majority of states have now adopted this new Duty of Technology Competence, but there is little guidance on its current reach. The guidance documents mainly discuss the duty in terms of eDiscovery, electronic storage, social media, and the cloud. As society moves beyond the Information Age to the Algorithmic Society, this duty should extend to the competent use of artificial intelligence and algorithms in law. As such, it behooves the legal academy to prepare lawyers for ethical practice in this brave new world.

Recommended. — Joe

Using information literacy to become practice-ready for legal research and writing

Using Information Literacy to Prepare Practice-Ready Graduates by Ellie Margolis and Kristen Murray is “an attempt to find a new way to think about how to prepare law students to be ‘practice ready’ for the legal research and writing tasks they will face as they enter law practice, and how to equip them with the skills they need to communicate with older generations of lawyers while adapting to new and evolving technologies. In essence, recent law school graduates must be ambassadors of technology, simultaneously able to communicate with lawyers who may not be conversant in, or even understand, the new technologies taking over law practice and able to use those new technologies to be effective lawyers. This article traces the paths that led to the current state of technology in law practice, and discusses ways educators might rethink what it means to be ‘practice ready’ in this environment.” — Joe

Beyond the text but not beyond the law: The law of legal interpretation

From the abstract for The Law of Interpretation, 130 Harvard Law Review 1079 (2017), by William Baude and Stephen E. Sachs:

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document’s meaning or a drafter’s intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting legal rules. These rules tell us what legal materials to read and how to read them. Like other parts of the law, what we call “the law of interpretation” has a claim to guide the actions of judges, officials, and private interpreters — even if it isn’t ideal. We argue that legal interpretive rules are conceptually possible, normatively sensible, and actually part of our legal system.

This Article thus reframes the theory of statutory and constitutional interpretation, distinguishing purely linguistic questions from legal questions to which language offers no unique answer. It also has two concrete implications of note. It provides a framework for analyzing the canons of interpretation, determining whether they are legally valid and how much authority they bear. And it helps resolve debates over constitutional “interpretation” and “construction,” explaining how construction can go beyond the text but not beyond the law.

Interesting. — Joe

The (Not So) Plan Meaning Rule

From the abstract for William Baude and Ryan Doerfler’s The (Not So) Plain Meaning Rule, 84 University of Chicago Law Review 539 (2017):

When should a court interpreting some statutory provision consider information besides the text—legislative history, surrounding provisions, practical consequences, the statute’s title, etc.? This might be one of the most asked questions of statutory interpretation.

One recurring answer in the Court’s cases is the “plain meaning rule,” which is something of a compromise. If the statute’s meaning is “plain,” the other information can’t be considered. If it isn’t plain, the information comes in. The rule seems to make obvious sense as an intermediate position between strict textualism and some form of pragmatism.

And yet, once we think a little more deeply about the plain meaning rule, we ought to see that its basic structure is puzzling. Information that is relevant shouldn’t normally become irrelevant just because the text is clear. And vice versa: irrelevant information shouldn’t become useful just because the text is less than clear. We can sketch some conditions under which this puzzling structure could be justified, but we highly doubt that they could justify the plain meaning rule in its current form.

— Joe

CRS report: Statutory Interpretation: General Principles and Recent Trends

Here’s a quote from the introduction to Statutory Interpretation: General Principles and Recent Trends (Sept. 24, 2014 97-589):

Interpretive methods that emphasize the primacy of text and staying within the boundaries of statutes themselves to discern meaning are “textualist.” Other approaches, including “intentionalism,” are more open to taking extrinsic considerations into account. Most particularly, some Justices may be willing to look to legislative history to clarify ambiguous text. This report briefly reviews what constitutes “legislative history,” including, possibly, presidential signing statements, and the factors that might lead the Court to consider it.

— Joe

CRS report: Introduction to the Legislative Process in the U.S. Congress

Introduction to the Legislative Process in the U.S. Congress ( Jan. 10, 2018 R42843) “introduces the main steps through which a bill (or other item of business) may travel in the legislative process—from introduction to committee and floor consideration to possible presidential consideration. However, the process by which a bill can become law is rarely predictable and can vary significantly from bill to bill. In fact, for many bills, the process will not follow the sequence of congressional stages that are often understood to make up the legislative process. This report presents a look at each of the common stages through which a bill may move, but complications and variations abound in practice.” — Joe

A logic for statutes

Sarah Lawsky’s essay, A Logic for Statutes, Florida Tax Review (forthcoming), “examines the structure of statutory reasoning after ambiguities are resolved and the meaning of the statute’s terms established. It argues that standard formal logic is not the best approach for representing statutory rule-based reasoning. Rather, the essay argues, using the Internal Revenue Code and accompanying regulations, judicial decisions, and rulings as its primary example, that at least some statutory reasoning is best characterized as defeasible reasoning — reasoning that may result in conclusions that can be defeated by subsequent information — and is best represented using default logic. The essay then addresses the practical and theoretical benefits of this alternative understanding of rule-based legal reasoning.”

Interesting. — Joe

Natural language processing and machine learning tools in HeinOnline

Check out Shannon Sabo’s two part series on HeinOnline’s implementation of natural language processing and AI: Part One and Part Two. — Joe

Can legal research be taught?

Yes it can but … “legal research instructors should discuss the role that legal analysis and argument play in determining the relevance of legal documents. Likewise, to the extent that legal research is taught as part of an integrated legal research and writing class, the instructor must make the connections between legal bibliography, legal analysis, and legal research clear,” wrote Paul Gatz in his RIPS Law Librarian Blog post, Can Legal Research Be Taught? Part 2: Varieties of Relevance. See also his Can Legal Research Be Taught? Part 1: The Relevance Paradox. Recommended. — Joe

The Algorithm as a Human Artifact

In what will be considered a seminal article of the 2010s in law library literature, The Algorithm as a Human Artifact by Susan Nevelow Mart, Associate Professor and Director of the Law Library, University of Colorado Law School, has been published by LLJ. From the abstract:

The results of using the search algorithms in Westlaw, Lexis Advance, Fastcase, Google Scholar, Ravel, and Casetext are compared. Six groups of humans created six different algorithms, and the results are a testament to the variability of human problem solving. That variability has implications both for researching and teaching research.

Highly recommended. — Joe

Bloomberg Law’s New Feature, Points Of Law

Bloomberg Law announced a new research feature, Points of Law, a little over a week ago.  I’ve been playing around with it using the ATV injury problem I created for teaching online legal research concepts.  In summary, An ATV rider was injured while riding on someone else’s private property without permission.  The problem called for the researcher to identify relevant cases where assumption of risk was a viable defense and collect them for later analysis.  The jurisdiction is New York.

Let me explain a little about Points of Law before I dive into my experience with it.  Bloomberg’s press release describes the feature:

Points of Law offers a more efficient way to conduct case law research.  Through the application of machine learning to Bloomberg Law’s database of 13 million court opinions, Points of Law highlights language critical to the court’s holding, links this language to governing statements of law and relevant on-point case law.

Bloomberg Law provides context – connecting keyword search results to governing statements of law – and unparalleled breadth of coverage, generating one million Points of Law from our state and federal court opinion database.

I found the press release accurate.  I used one of the sample searches I set up for the research problem, <all-terrain vehicle and assumption of risk>.  The case law I expected to see in the list of results was there.  Some of the cases, not all, had a Points of Law icon on the right side of the text.  Clicking that highlights text that the AI in the database considers to be significant.  My search highlighted what I would describe as a combination of black letter law on a keyword related topic or significant points on how the courts treat that topic.  The focus here was on assumption of risk, obviously,  as and all-terrain vehicle is not a legal concept.

Here are some example results extracted from Marcano v. City of New York, 296 A.D.2d 43, 743 N.Y.S.2d 456 (App Div, 1st Dept 2002):

Generally, the issue of assumption of risk is a question of fact for the jury.” (Lamey v Foley, 188 AD2d 157, 163-164 .)

“The policy underlying this tort rule is intended to facilitate free and vigorous participation in athletic activities.” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657 .)  [Discussing how assumption of the risk in sports is handled by the courts. – MG]

Because of the factual nature of the inquiry, whether a danger is open and obvious is most often a jury question * * *.”

What I found most interesting about using Points of Law is how viewing multiple extracts informed me about assumption of risk without requiring a lot of lengthy analysis.  Now, not all cases in the search results were useful in my context where an ATV rider was injured.  At the same time, a researcher will find what they need to know conceptually about assumption of the risk as treated by the New York Courts.  I assume that applies to other legal doctrines as well.

Another feature worth mentioning is that clicking on the highlighted phrase will open a side window that cites other cases expressing the same point of law (up to 10).  There is also a button that shows a citation map of the Point:

Bloomberg Cite Map.

Another button shows a list of opinions that expressed related concepts along with the Point text:

Bloomberg Related Points of Law

All in all, I think this is a nifty feature that researchers and litigators will actually use.  I wonder if it will integrate with any of the current general search products on the market, as in “Hey Google, find me cases in New York State that discuss assumption of risk in the context of recreational activities.”  If we now think that first year law students take the lazy route in legal research based on their Google use, just wait for the future to show up.

In the Not Everything is Perfect category, one case, Bierach v. Nichols, 248 A.D.2d 916, 669 N.Y.S.2d 988 (App Div, 3d Dept 1998), had one Point of Law listed but not highlighted in the text.  It was short enough that I was able to guess what was the likely text that would have been highlighted.  Oh well.  –Mark

Integrating PACER in the case method of instruction

Here’s the abstract for Teaching with PACER: Improving Understanding by Harnessing Transparency by George Kuney:

The article discusses teaching law school courses with the Public Access to Court Electronic Records (PACER) system and both student and instructor e-writing projects relating to that system.

The case method of instruction in its classic form does not capture the context and intricacies of bankruptcy practice, especially in United States Chapter 11 cases. What is often missing is the rich compilation of detail found in the mountain of filings that is a Chapter 11 case, whether large or small. These details often evidence the shifting loyalties, relationships, interests, and emotions of the participants. These dynamics are largely lost in even trial court decisions in the case, much less appellate opinions.

With the advent of national federal court adoption of the PACER system throughout the United States, however, a new resource for teaching has arrived. Over the last several years, I have been teaching Chapter 11 seminars that augment a text with a research project that uses PACER (or a similar service available in some large cases from the claims agents in the case) to provide access to the docket and substantially all the pleadings and other documents in the case. This research project allows students to research the background of the debtor company, examine what led it to seek relief under Chapter 11, and to follow the case to conclusion, through all its twists and turns, even if there are no appeals. Student reaction has been positive.

Interesting. — Joe

Approaches to incorporating research instruction into transactional skills courses

Professors Lori Johnson, Jeanne Price, and Eric Franklin discuss methods of teaching legal research skills in the context of transactional skills courses in Research Instruction and Resources in the Transactional Skills Classroom: Approaches to Incorporating Research Instruction into Transactional Skills Courses, 18 Tenn. J. Bus. L. 635 (2016).

H/T Legal Skills Prof Blog. — Joe

Using Congressional Research Service Reports in LR&W instruction

Most readers are probably aware of legislative research reports produced by the Congressional Research Service. Two come readily to mind:

But there are plenty more where those came from. Here’s just a sample of CRS reports that can provide useful background reading on the federal legislative process for the legal research component of “how a bill becomes a law.”

Bills and Resolutions: Examples of How Each Kind Is Used (Dec. 2, 2010 98-706)

The Senate’s Calendar of Business (Apr. 21, 2017 98-429)

Calendars of the House of Representatives (Mar. 2, 2017 98-437)

House Floor Activity: The Daily Flow of Business (April 16, 2008 RS20233)

Introducing a Senate Bill or Resolution (Jan. 17, 2017 R44195)

Introducing a House Bill or Resolution (Jan. 12, 2017)

Sponsorship and Cosponsorship of House Bills (Jan 12, 2017 RS22477)

Types of Committee Hearings (June 28, 2017 98-317)

Hearings in the U.S. Senate: A Guide for Preparation and Procedure (Mar. 18, 2010 RL30548)

Hearings in the House of Representatives: A Guide for Preparation and Procedure (June 13, 2006 RL30539)

“Holds” in the Senate (Jan. 17, 2017 R43563)

Enrollment of Legislation: Relevant Congressional Procedures (May 18, 2017 RL34480)

Veto Override Procedure in the House and Senate (Feb. 2015 RS22654)

How Bills Amend Statutes (June 24, 2008 RS20617)

— Joe

Kerr: How to Read a Legal Opinion: A Guide for New Law Students

Orin Kerr’s How to Read a Legal Opinion: A Guide for New Law Students, 11 The Green Bag 2d 51 (2007) celebrates the 10th anniversay of its publication in The Green Bag. It should be required reading during the first week of 1Ls’ law school careers. — Joe