Category Archives: Legal Research Instruction

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

A more rigorous approach to case briefing

In A More Rigorous Approach to Teaching the Reasoning Portion of Case Analysis: A Key to Developing More Competent Law Students, Edwin S. Fruehwald argues that LR&W programs superficially teach students how to analyze a holding for case briefing assignments. Fruehwald presents a more rigorous approach to case analysis, by including in the reasoning section the types of reasoning (rule-based reasoning, reasoning by analysis, distinguishing cases, policy-based reasoning, synthesis) a judge is using and how the judge employs these types of reasoning to obtain the holding. Recommended for 1Ls. — Joe

Should, and if so, how should legal research and writing instruction be integrated in law schools?

Check out Liz McCurry Johnson’s brief article, Teaching Legal Research and Writing in a Fully Integrated Way. Here’s the abstract:

This Article outlines the past model of legal research and writing at Wake Forest School of Law, the problems it presented and the redesign methods implemented over the course of two academic years. It details student evaluations and evidence of better student learning when legal writing and research is taught together, in an integrated fashion, rather than in two paralleling courses. Most importantly, this Article provides evidence to support an argument that legal research should never be taught outside the context of a legal writing, or a doctrinal, problem set. Collaboration among faculty is the key to successful student learning.

— Joe

Just in time for incoming 1Ls: Learning how to read and write legal citations

Alexa Chew’s Citation Literacy adds a new chapter to LR&W pedagogy. Here’s the abstract:

New lawyers and law students spend a lot of time worrying about legal citation. But most of that time is spent worrying about the wrong thing—formatting. The primary purpose of legal citation is to communicate information to the reader. Thus, legal citations are integral parts of the legal documents that lawyers read and write. But rather than viewing citation as communication, law students, and the new lawyers they become, tend to view it as a formatting sideshow dictated by the Bluebook or other citation style guides. This view is both inaccurate and counterproductive.

I argue that the reason for this detrimental and misplaced focus on citation form is because law schools do not teach what I call citation literacy: the ability to both read and write legal citations. Despite the pervasive presence of citations in judicial opinions, which first-year law students spend most of their time reading, pondering, and discussing, law schools teach students only how to write citations. This “write-first” approach to teaching citation deprives legal novices of opportunities to learn to make meaning from citations as readers. Were students able to understand as readers how legal citations operate as communication, the tedious task of writing legal citations would be grounded in an intrinsic purpose rather than a seemingly arbitrary style guide. As things stand now, students must be prodded to follow citation norms for extrinsic gains, which satisfies neither student nor professor.

The citation literacy pedagogy I propose would first teach law students to study the citations in the documents they read—the edited judicial opinions they find in casebooks, the unedited judicial opinions they read in legal writing courses, and sample memoranda or briefs. To teach students to make meaning from citations, citation should be introduced concurrently with foundational lessons in legal authority. Once students understand what citations mean, they can more easily write the citation forms set forth in citation style guides and adapt that knowledge to the heterogeneity of citation forms they will encounter in practice.

Here’s the conclusion to this highly recommended article:

Legal citations play an integral role in legal analysis and legal documents, communicating important information from writer to reader about the support for the writer’s claims. Skilled legal readers incorporate that information into their understanding of the legal texts they read, making meaning from them and using them to assess the quality of legal arguments. However, the prevailing write-first citation pedagogy subverts this communicative purpose, focusing almost solely on teaching students to write citations without first teaching them to read citations. Lawyers need to be able to both read and write legal citations—to be citation literate—and law schools can advance this goal by upending the write-first citation pedagogy, which cabins citation instruction into legal writing courses and deprives students of opportunities to practice making meaning from the citations in the legal documents they read. By promoting citation literacy over citation formatting, law schools might even reduce the misery associated with legal citation and produce graduates who can adapt to whatever the future of legal citation holds.

— Joe

Is artificial intelligence causing a premature disruption in legal research?

Here’s the abstract for Jamie Baker’s 2017 A Legal Research Odyssey: Artificial Intelligence as Disruptor:

Cognitive computing is revolutionizing finance through the ability to combine structured and unstructured data and provide precise market analysis. It is also revolutionizing medicine by providing well-informed options for diagnoses. Analogously, ROSS, a progeny of IBM’s Watson, is set to revolutionize the legal field by bringing cognitive computing to legal research. While ROSS is currently being touted as possessing the requisite sophistication to perform effortless legal research, there is a real danger in a technology like ROSS causing premature disruption. As in medicine and finance, cognitive computing has the power to make legal research more efficient. But the technology is not ready to replace the need for law students to learn sound legal research process and strategy. When done properly, legal research is a highly creative skill that requires a deep level of analysis. Law librarians must infuse law students with an understanding of legal research process, as well as instruct on the practical aspects of using artificial intelligence responsibly in the face of algorithmic transparency, the duty of technology competence, malpractice pitfalls, and the unauthorized practice of law.

— Joe

Artificial intelligence and legal research instruction

Jamie J. Baker’s 2017 A Legal Research Odyssey: Artificial Intelligence as Disruptor discusses the current state of artificial intelligence as it applies to law. The article provides a background in current technological capabilities, shows how these capabilities are being used in various professions, including finance and medicine, and provides an overview of current natural language processing capabilities to discuss how the latest technological advances will realistically be applied to legal research. The article ultimately argues that law librarians must still infuse law students with sound legal research process and understanding so that they have the ability to confidently rely on algorithms in the face of various ethical duties. Here’s the abstract:

Cognitive computing is revolutionizing finance through the ability to combine structured and unstructured data and provide precise market analysis. It is also revolutionizing medicine by providing well-informed options for diagnoses. Analogously, ROSS, a progeny of IBM’s Watson, is set to revolutionize the legal field by bringing cognitive computing to legal research. While ROSS is currently being touted as possessing the requisite sophistication to perform effortless legal research, there is a real danger in a technology like ROSS causing premature disruption. As in medicine and finance, cognitive computing has the power to make legal research more efficient. But the technology is not ready to replace the need for law students to learn sound legal research process and strategy. When done properly, legal research is a highly creative skill that requires a deep level of analysis. Law librarians must infuse law students with an understanding of legal research process, as well as instruct on the practical aspects of using artificial intelligence responsibly in the face of algorithmic transparency, the duty of technology competence, malpractice pitfalls, and the unauthorized practice of law.

— Joe

CRS guides for researching federal legislation

Two regularly updated research guides produced by the Congressional Research Service were updated in the last year.

Researching Current Federal Legislation and Regulations: A Guide to Resources for Congressional Staff (Feb. 6, 2017, RL33895) introduces congressional staff to selected governmental and nongovernmental sources that are useful in tracking and obtaining information on federal legislation and regulations. It includes governmental sources, such as, the Government Publishing Office’s Federal Digital System (FDsys), and U.S. Senate and House websites. Nongovernmental or commercial sources include resources such as HeinOnline and the Congressional Quarterly (CQ) websites.

Legislative History Research: A Guide to Resources for Congressional Staff (July 6, 2016, R41865) provides an overview of federal legislative history research, the legislative process, and where to find congressional documents. The report also summarizes some of the reasons researchers are interested in legislative history, briefly describes the actions a piece of legislation might undergo during the legislative process, and provides a list of easily accessible print and electronic resources.

See also, The Framing of the United States Constitution: A Beginner’s Guide on In Custodia Legis.

Useful. — Joe