From the abstract for Ryan Doerfler, Can a Statute Have More Than One Meaning? 94 New York University Law Review ___ (2019, Forthcoming):
What statutory language means can vary from statute to statute, or even provision to provision. But what about from case to case? The conventional wisdom is that the same language can mean different things as used in different places within the United States Code. As used in some specific place, however, that language means what it means. Put differently, the same statutory provision must mean the same thing in all cases. To hold otherwise, courts and scholars suggest, would be contrary both to the rules of grammar and to the rule of law.
This Article challenges that conventional wisdom. Building on the observation that speakers can and often do transparently communicate different things to different audiences with the same verbalization or written text, it argues that, as a purely linguistic matter, there is nothing to prevent Congress from doing the same with statutes. More still, because the practical advantages of using multiple meanings — in particular, linguistic economy — are at least as important to Congress as to ordinary speakers, this Article argues further that it would be just plain odd if Congress never chose to communicate multiple messages with the same statutory text.
As this Article goes on to show, recognizing the possibility of multiple statutory meanings would let courts reach sensible answers to important doctrinal questions they currently do their best to avoid. Most notably, thinking about multiple meanings in an informed way would help courts explain under what conditions more than one agency should receive deference when interpreting a multi-agency statute. Relatedly, it would let courts reject as false the choice between Chevron deference and the rule of lenity for statutes with both civil and criminal applications.
Paul Hellyer’s Evaluating Shepard’s, KeyCite, and BCite for Case Validation Accuracy, 110 LLJ 449 (2018)(paywalled), “evaluates and compares how accurately three legal citators (Shepard’s, KeyCite, and BCite) identify negative treatment of case law, based on a review of 357 citing relationships that at least one citator labeled as negative. In this sample, Shepard’s and KeyCite missed or mislabeled about one-third of negative citing relationships, while BCite missed or mislabeled over two-thirds. The citators’ relative performance is less clear when examining the most serious citator errors, examples of which can be found in all three citators.” Recommended.
H/T to Jason Wilson. His recent Linkin post calls attention to Kevin Bennardo, Abandoning Predictions, 16 Legal Communication & Rhetoric ___ (2019 Forthcoming). Here’s the abstract for this interesting essay:
Analytical documents are a hallmark of the law school legal writing curriculum and of the practice of law. In these documents, the author usually applies a body of law to a set of facts and reaches a conclusion. Oftentimes, that conclusion is phrased as a prediction (“The court is likely to find…”), and many academics even refer to analytical documents as “predictive” document types. If that describes you, this Essay’s goal is to convince you to change your ways.
Simply put, there is a difference between conducting a legal analysis and predicting the outcome of a legal dispute. If the author of an analytical document has only conducted a legal analysis, they have no business claiming that they can predict the outcome of the dispute. That distinction should be recognized in the teaching of analytical document genres and should be conveyed by legal professionals in their communication of legal analyses.
From the abstract for Zahr Said & Jessica M. Silbey, Narrative Topoi in the Digital Age, 68 Journal of Legal Education ___ (Forthcoming):
Decades of thoughtful law and humanities scholarship have made the case for using humanistic texts and methods in the legal classroom. We build on that scholarship by identifying and describing three “narrative topoi” of the twenty-first century – podcasts, twitter and fake news. We use the term “topos” (from the Greek meaning “place”) and its plural, “topoi,” to mean “a literary commonplace” and “general setting for discussion” in the context of literary forms. Like an identifiable genre, narrative topoi are familiar story paths for audiences to travel. These narrative topoi live in contemporary popular culture and are products of digital technology’s capacity to share and shape communication in new ways that draw on older narrative conventions and forms. In a law school, drawing on new narrative topoi can reorient legal analysis through inquiry into twenty-first-century problems of language, narrative form, authenticity, and audiences. Legal educators may also highlight historical continuity between cultural and legal history and today’s forms and experiences, foregrounding issues central to legal skills, such as analogic reasoning, advocacy, counseling, and factual analysis. We address all of these points while exploring particular examples of these narrative topoi of our digital age.
For his Legal Theory Lexicon, Georgetown Law’s Lawrence B. Solum has added an entry that provides a basic introduction to theories of statutory interpretation and construction with an emphasis on the three most basic approaches to statutory interpretation (textualism, intentionalism, and purposivism).
Kevin P. Tobia has posted Testing Original Public Meaning (Nov. 6, 2018). Here’s the abstract:
Various interpretive theories recommend using dictionaries or corpus linguistics to provide evidence about the “original public meaning” of legal texts. Such an interpretive inquiry is typically understood as an empirical one, aiming to discover a fact about public meaning: How did people actually understand the text at the time it became law? When dictionaries or corpora are used for this project, they are empirical tools, which might be reliable or unreliable instruments. However, the central question about these tools’ reliability remains unanswered: Do dictionaries and corpus linguistics reliably reflect original public meaning?
This paper develops a novel method to assess this question. It begins by examining the public meaning of modern terms. It compares people’s judgments about meaning to the verdicts that modern dictionaries and corpus linguistics deliver about (modern) public meaning. Eight experimental studies (total N = 1,327) reveal systematic divergences among the verdicts delivered by ordinary concept use, dictionary use, and corpus linguistics use. For example, the way in which people today apply the concept of a vehicle is systematically different from the way in which people apply the modern dictionary definition of a “vehicle” or the modern corpus linguistics data concerning vehicles. Strikingly similar results arise across levels of legal expertise; participants included 999 ordinary people, 230 “elite-university” law students (e.g. at Harvard and Yale), and 98 United States judges. These findings provide evidence about the reliability of dictionaries and corpus linguistics in estimating modern public meaning. I argue that these studies also provide evidence about these tools’ reliability in estimating original public meaning, in historical times.
The paper develops both the positive and critical implications of these experimental findings. Positively, the results reveal systematic patterns of the use of dictionaries and corpora. Corpus linguistics tends to generate prototypical uses, while dictionaries tend to generate more extensive uses. This discovery grounds normative principles for improving the use of both tools in legal interpretation. Critically, the results support five argumentative fallacies that arise in legal-interpretive arguments that rely on corpus linguistics or dictionaries. More broadly, the results suggest that two central methods of determining original public meaning are surprisingly unreliable. This shifts the argumentative burden to public meaning originalism and other theories that rely upon these tools; those theories must provide a non-arbitrary account of these tools’ use and a demonstration that such methods are, in fact, reliable.
Michael A. Livermore, et al. have posted Law Search as Prediction (Nov. 9, 2018). Here’s the abstract:
The process of searching for relevant legal materials is fundamental to legal reasoning. However, despite its enormous practical and theoretical importance, law search has been given inadequate attention by scholars. In this article, we define the problem of law search, examine its normative and empirical dimensions, and investigate one particularly promising computationally based approach. We implement a model of law search based on a notion of search space and search strategies and apply that model to the corpus of U.S. Supreme Court opinions. We test the success of the model against both citation information and hand-coded legal relevance determinations.
From the abstract for Nancy J. White, Legal Analysis: There’s a Template for that! 2 ALSB Journal of Business Law & Ethics Pedagogy ___ (Forthcoming):
Legal analysis is often one of the more difficult skills to teach undergraduate and first-year law students. This skill, related to what is called “legal frame working” in law school, is needed by law students and lawyers, to analyze legal issues and requires the user of the legal framework to have a detailed understanding of the law. This same level of skill is not taught at the undergraduate level, but a basic understanding increases critical thinking and helps undergraduate students conceptualize how the law is used. This paper describes a simplified method for introducing the skill of legal analysis to undergraduate students and first-year law students using a legal analysis template developed by the author.
Zillman’s A Quick Guide to Searching the Web, LRRX Sept 9, 2018, provides an explanation of four Internet search techniques: 1) Search Engines, 2) Indexes and Directories, 3) Intuitive Search and 4) Custom Search and Deep Web Search. “The intent of this guide,” writes Marcus Zillman, “is to broaden your search horizons so that searching the web will intuitively become easier, more focused and more effective.” Recommended.
JSTOR’s Research Basics course no longer requires registration and has moved from the Moodle platform to the LibGuide platform. While designed to help early college and college-bound students learn academic research skills, the course can be useful for teaching law students how to do secondary law research.
H/T to Gary Price’s InfoDocket post.
“Every day, critics of the American president decry his penchant for “false or misleading claims,” while he and his supporters fire back with accusations of “fake news.” It’s no wonder those of us who teach are worried more than ever about information literacy,” wrote David Gooblar in How to Teach Information Literacy in an Era of Lies, Chronicle of Higher Education (July 24, 2018). Gooblar believes that professors in every discipline should make teaching information literacy a priority. He provides ways to incorporate information literacy into various courses.
H/T Information Today. — Joe
From the abstract for Alexa Z. Chew’s Citation Literacy, 70 U. Ark. L. Rev. 869 (2018):
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.
Recommended. — Joe
In The Complete Professional: How Our New Professional Ideals for Law Students Help Us in the Legal Research and Writing Classroom, 26 Perspectives: Teaching Legal Res. & Writing 14 (2017), Michele Bradley and Nancy Oliver explain how LRW courses benefit from the aboption and implementation of the University of Cincinnati College of Law’s The Complete Professional: Professional Ideals for Law Students because it provides a common language for the Cincinnati Law community tailored to the experience of law students. — Joe
In Reading in the Digital Age: A Review of Words on Screen, 26 Perspectives: Teaching Legal Res. &
Writing 36 (2017), James Levy reviews a recent book by linguistics scholar Naomi Baron who describes the reading habits of “digital natives,” including an assessment of the pedagogical advantages and disadvantages of reading electronic text versus print. Interesting. — Joe
In A-I is a G-O, Dyane O’Leary offers her perspective on ROSS, an artificial intelligence legal research tool. Artificial intelligence is a hot button issue, and this article explores what these new platforms might offer and whether LRW professors should be teaching them. — Joe
The latest issue of “Perspectives: Teaching Legal Research and Writing” is out now. From the editor:
In this issue, our authors explore a variety of topics ranging from whether and how to introduce artificial intelligence tools into the LRW classroom, to teaching professional identity, avoiding missteps and insensitivity when using hypotheticals involving racial issues, and teaching persuasion through the use of popular movies. There’s something for everyone in an issue that reflects one of our most diverse group of topics yet.
The Editorial Board is now working on the next issue of Perspectives which will be published in the fall. Accordingly, we are looking for relatively short, highly readable articles (typically between 1,500 and 7,000 words and lightly footnoted) that address issues pertinent to the teaching of legal research and writing. Articles may focus on curricular design, instructional goals, teaching methods, assessments, and similar topics. We’re also seeking book reviews on publications (excluding textbooks) relevant to our audience. Your idea can be large or small, but if it provides a fresh and creative way to teach or learn about legal research or writing skills, we’d like to publish it. Perspectives gives you the opportunity to get published relatively quickly, add a publication credit to your resume and reach a large audience of more than 4,000 subscribers
The Editorial Board is also looking for micro essays — that is, 100 words or less — inspired by the prompt: “Will Artificial Intelligence (AI) change how or what we teach in LRW classes? What do you anticipate the impact of AI will be on teaching or learning?” We are looking to publish a range of creative responses, and we’ll even do so anonymously if asked.
The submission deadline for articles is September 1 and for micro essays it’s October 1, though the Editorial Board may decide to accept articles on a rolling basis after the deadlines depending on the circumstance. Please get in touch with a Board member if you have any questions. Author guidelines and other information regarding article submissions can be found on the Perspectives website here.
Hap tip to Scott Frey for locating introductory videos of Westlaw Edge features. The videos cover litigation analytics, WestSearch Plus, KeyCite overruling risk, and statutes compare. Recommended. — Joe
Here’s the abstract for Alyson Drake’s You Can’t Write Without Research: The Role of Research Instruction in the Upper-Level Writing Requirement, 18 Fla. Coastal L. Rev. 167 (2017):
This article examines the role legal research instruction should play in the American Bar Association’s upper-level writing requirement. It argues that, despite the importance that research plays in most types of writing that students do to fill this requirement (student journal notes/comments, seminar papers, independent research papers), there is little-to-no standardized research instruction in and across law schools. Finally, the article proposes four methods that scholarly research instruction can be incorporated into the law school curriculum by utilizing law librarians and suggests why law librarians are best suited for this type of instruction.
Here’s the abstract for Deborah N. Archer’s Political Lawyering for the 21st Century (2018):
Legal education purports to prepare the next generation of lawyers capable of tackling the urgent and complex social justice challenges of our time. But law schools are failing in that public promise. Clinical education offers the best opportunity to overcome those failings by teaching the skills lawyers need to tackle systemic and interlocking legal and social problems. But too often even clinical education falls short: it adheres to conventional pedagogical methodologies that are overly narrow and, in the end, limit students’ abilities to manage today’s complex racial and social justice issues. This article contends that clinical education needs to embrace and reimagine political lawyering for the 21st century in order to prepare aspiring lawyers to tackle both new and chronic issues of injustice through a broad array of advocacy strategies.
In On Embracing the Research Conference (2018), Alyson Drake promotes the use of the research conference in LRW courses because “the individualized formative feedback allows each student to improve in the areas in which they are struggling.” Here’s the abstract:
Research conferences are a tool that should be included in any research or writing instructor’s arsenal. In addition to have multiple pedagogical benefits for students, including providing individualized feedback and another opportunity for formative assessment, legal research conferences help students prepare for practice and comprehend that analysis is a critical part of legal research. Learning that research is an analytical exercise rather than a mechanical task will ultimately help them to be better researchers, writers, and attorneys.