Lawfare’s Litigation Documents & Resources Related to Trump Executive Order on Immigration is an archive of court filings and related resources surrounding Trump’s three travel ban executive orders. — Joe
Category Archives: Legal Research
SCOTUS Notes is the newest crowdsourcing project under the Zooniverse platform originated at the University of Minnesota. “In this project, members of the public transcribe handwritten notes from U.S. Supreme Court justices. Unlike members of Congress, justices cast their votes in complete privacy during weekly conference meetings. Only justices are allowed in the Chief Justice’s conference room when they discuss, deliberate, and make initial decisions on cases that focus on some of the nation’s most pressing legal issues. The only record of what has been said, and by whom, is provided by the handwritten personal notes the justices themselves take during conference. These crucial documents detail the discussions and debates that took place in thousands of cases spanning multiple decades.”
The project is seeking volunteers. Interesting. H/T to beSpacific. — Joe
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
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.
What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law?
For an answer to the post title’s question, see Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I, 65 Stanford Law Review 901 (2013) and Part II, 66 Stanford Law Review ___ (2014) by Abbe R. Gluck and Lisa Schultz Bressman. Here’s the abstract for Part I:
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.
Recommended. — Joe
From the abstract for Christopher J. Walker’s Inside Agency Statutory Interpretation, 67 Stanford Law Review 999 (2015):
This Article looks inside the black box of agency statutory interpretation in the rulemaking context. The Article reports the findings of a 195-question survey of agency rule drafters at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (the Federal Communications Commission and the Federal Reserve). Of the 411 officials sent the survey, 128 responded, and their answers shed considerable light on the tools and approaches they use to interpret statutes and draft regulations. The findings uncovered challenge some theories on agency interpretation while reinforcing others. As Congress, courts, and scholars gain more insight into how federal agencies use the canons, legislative history, and judicial deference doctrines in agency statutory interpretation, the relationship between Congress and federal agencies should improve, as should the judicial branch’s ability to monitor and faithfully constrain lawmaking by regulation.
From the introduction to Lisa DeLuca’s Presidential research resources: A guide to online information, College & Research Libraries News, v. 79, n. 2, p. 93, Feb. 2018:
This article highlights the breadth of freely available digital collections of presidential documents. These repositories are excellent resources for presidential, political science, history, and foreign relations research. From the resources listed in this article, librarians can choose multiple starting points for student and faculty research inquiries for primary and secondary sources that include handwritten documents by the founding fathers, interview transcriptions, digitized documents, and photographs, to name a few. This article does not contain public opinion, election, or media content sources, which are an important component of presidential research.
H/T to beSpacific. — Joe
Here’s the abstract for Adam Steinman’s very interesting article simply titled Case Law, Boston University Law Review, Vol. 97, No. 1947, 2017:
Although case law plays a crucial role in the American legal system, surprisingly little consensus exists on how to determine the “law” that any given “case” generates. Lawyers, judges, and scholars regularly note the difference between holdings and dicta and between necessary and unnecessary parts of a precedent-setting decision, but such concepts have eluded coherent application in practice. There remains considerable uncertainty about which aspects of a judicial decision impose prospective legal obligations as a matter of stare decisis and to what extent.
This Article develops a counterintuitive, but productive, way to conceptualize case law: the lawmaking content of a judicial decision should be only those decisional rules that the court states explicitly and that can be framed in the form (If P, then Q). Future courts would not, however, be required to reconcile their decisions with other findings, conclusions, or reasons that the precedent-setting court offers. Although these other elements of a judicial decision could remain influential, they would not impose binding obligations as a matter of hierarchical stare decisis.
This rule-centered approach would allow judicial decisions to clarify the law when such clarifying rules are justified and desirable, but otherwise leave the slate clean for courts to confront unresolved questions in future cases with the full participation of future litigants. As to the concern that judicially announced rules may sweep too broadly, this Article’s approach would leave future courts free to develop distinguishing rules in a way that serves many of the same purposes as the conventional understanding of how cases may be distinguished, but that reduces the risk of disingenuous distinctions, enhances rather than muddies case law’s clarifying benefits, and avoids conceptual and definitional problems inherent in the current approach. This Article’s framework also helps to resolve a host of other difficult puzzles relating to judicial decision-making, including the controversy surrounding unpublished opinions, the stare decisis effect of decisions that lack a majority opinion, and how to identify and resolve tensions within case law.
Here’s the abstract for Topic Modeling the President: Conventional and Computational Methods, George Washington Law Review, Forthcoming, by J. B. Ruhl, John Nay and Jonathan M. Gilligan:
Law is generally represented through text, and lawyers have for centuries classified large bodies of legal text into distinct topics — they “topic model” the law. But large bodies of legal documents present challenges for conventional topic modeling methods. The task of gathering, reviewing, coding, sorting, and assessing a body of tens of thousands of legal documents is a daunting proposition. Recent advances in computational text analytics, a subset of the field of “artificial intelligence,” are already gaining traction in legal practice settings such as e-discovery by leveraging the speed and capacity of computers to process enormous bodies of documents. Differences between conventional and computational methods, however, suggest that computational text modeling has its own limitations, but that the two methods used in unison could be a powerful research tool for legal scholars in their research as well.
To explore that potential — and to do so critically rather than under the “shiny rock” spell of artificial intelligence — we assembled a large corpus of presidential documents to assess how computational topic modeling compares to conventional methods and evaluate how legal scholars can best make use of the computational methods. The presidential documents of interest comprise presidential “direct actions,” such as executive orders, presidential memoranda, proclamations, and other exercises of authority the president can take alone, without congressional concurrence or agency involvement. Presidents have been issuing direct actions throughout the history of the republic, and while they have often been the target of criticism and controversy in the past, lately they have become a tinderbox of debate. Hence, although long ignored by political scientists and legal scholars, there has been a surge of interest in the scope, content, and impact of presidential direct actions.
Legal and policy scholars modeling direct actions into substantive topic classifications thus far have not employed computational methods. This gives us an opportunity to compare results of the two methods. We generated computational topic models of all direct actions over time periods other scholars have studied using conventional methods, and did the same for a case study of environmental policy direct actions. Our computational model of all direct actions closely matched one of the two comprehensive empirical models developed using conventional methods. By contrast, our environmental case study model differed markedly from the only other empirical topic model of environmental policy direct actions, revealing that the conventional methods model included trivial categories and omitted important alternative topics.
Our findings support the assessment that computational topic modeling, provided a sufficiently large corpus of documents is used, can provide important insights for legal scholars in designing and validating their topic models of legal text. To be sure, computational topic modeling used alone has its limitations, some of which are evident in our models, but when used along with conventional methods, it opens doors towards reaching more confident conclusions about how to conceptualize topics in law. Drawing from these results, we offer several use cases for computational topic modeling in legal research. At the front-end, researchers can use the method to generate better and more complete model hypotheses. At the back-end, the method can effectively be used, as we did, to validate existing topic models. And at a meta-scale, the method opens windows to test and challenge conventional legal theory. Legal scholars can do all of these without “the machines,” but there is good reason to believe we can do it better with them in the toolkit.
Interesting. — Joe
From Senate Rules Restricting the Content of Conference Reports (Nov. 27, 2017 RS22733):
Two Senate rules affect the authority of conferees to include in their report matter that was not passed by the House or Senate before the conference committee was appointed. Colloquially, such provisions are sometimes said to have been “airdropped” into the conference report. First, Rule XXVIII precludes conference agreements from including policy provisions that were not sufficiently related to either the House or the Senate version of the legislation sent to conference. Such provisions are considered to be “out of scope” under long-standing Senate rules and precedents. Second, Paragraph 8 of Rule XLIV establishes a point of order that can be raised against “new directed spending provisions,” or provisions in a conference report that provide specific items of appropriations or direct spending that were not committed to the conference committee in either the House or Senate versions of the legislation. Both of these restrictions can be enforced on the Senate floor if any Senator chooses to raise a point of order against one or more provisions in a conference report.
The process for disposing of either a Rule XXVIII or a Rule XLIV point of order allows the Senate to strike “out of scope matter” or “new directed spending provisions” from the conference report but agree to the rest of the terms of the compromise. It is not in order, however, for either chamber to alter the text of a conference report, and therefore the process converts the text of the conference compromise minus the “new matter” or “new directed spending provisions” into an amendment.
Back in the good old days of the 1980’s when I was a big law firm research librarian (instead of a bean-counting library administrator I have become), I would “push” or proactively supply attorneys resources unsolicited because I thought they may need the information for pending matters we had worked on together. Usually, the material provided was relevant and welcomed. “Push research” as explained by Casetext’s Jake Heller applies artificial intelligence to what amounts to be the electronic footprints of researchers to alert, update and supply resources to the end user sometimes unsolicited as I had done. By the sound of it, AI-engineered “push research” would perform a far better job of providing unsolicited pertinent information than the typical legal research librarian of the 1980s. On ATL, see Jake Heller, Push Research: How AI Is Fundamentally Changing The Way We Research The Law. Recommended. — Joe
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
In a major coup for both the LexBlog network and Fastcase, Fastcase has integrated the LexBlog network’s bloggers commentaries into Fastcase 7. Now, a Fastcase searcher can access contemporary analysis on legal developments in addition to linkage to HeinOnline’s library of legal periodicals. “We’re pushing hard to add the best secondary sources for our members,” said Fastcase CEO Ed Walters. “The LexBlog network is a platform for some of the nation’s leading experts in law to report and synthesize legal news and developments. And the collection of every day’s LexBlog posts reads like the most compelling legal newspaper in America.” Quoting from Bob Ambrogi’s LawSite’s post. — Joe
One of the highlights of the American Association of Law Libraries (AALL) conference in Austin this year was the Innovation Tournament which pitted three librarians’ tech innovations against each other. With two prizes, each worth $2,500, up for grabs, the competition was pretty tough. There was a scanning project management innovation, a Virtual Reality presentation preparedness tool, and an innovative ChatBot for legal information assistance. The ChatBot really caught my attention as something that I would love to test out on a local level. — Greg Lambert, Now I want a Chatbot, 3 Geeks and a Law Blog, July 27, 2017
Now Greg, you and I can test drive a new chatbot that walks a user through a basic reference interview. According to In Custodias Legis, the new chatbot can connect a user to primary legal sources, law library research guides and foreign law reports. The chatbot can also respond to a limited number of text commands. Go to the Law Library of Congress Facebook page to try the chatbot.
H/T to Gary Price’s InfoDocket report. — Joe
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:
Another button shows a list of opinions that expressed related concepts along with the Point text:
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
From the announcement:
The Federal Courts Web Archive, recently launched by the Library of Congress Web Archiving Team and the Law Library of Congress, provides retrospective archival coverage of the websites of the federal judiciary. … These sites contain a wide variety of resources prepared by federal courts, such as: slip opinions, transcripts, dockets, court rules, calendars, announcements, judicial biographies, statistics, educational resources, and reference materials. The materials available on the federal court websites were created to support a diverse array of users and needs, including attorneys and their clients, pro se litigants seeking to represent themselves, jurors, visitors to the court, and community outreach programs.
This collection includes the websites of the U.S. Supreme Court, U.S. Courts of Appeals, U.S. District Courts, and U.S. Bankruptcy Courts. This collection also includes the sites of the federal judiciary’s specialty courts, including the U.S. Court of Federal Claims, U.S. Court of International Trade, U.S. Tax Court, U.S. Court of Appeals for Veterans Claims, and U.S. Court of Appeals for the Armed Forces.
H/T to Gary Price, InfoDocket. — Joe
From the press release:
An expansion of Violation Tracker, the first public database of corporate crime and misconduct in the United States, now makes it possible to access details of cases ranging from the big business scandals of the early 2000s during the Bush administration through those of the Trump administration to date. Violation Tracker, produced by the Corporate Research Project of Good Jobs First, is available at no charge.
Violation Tracker’s entries, which come from more than 40 federal regulatory agencies and the major divisions of the U.S. Justice Department, cover a wide array of civil and criminal offenses, including: violations of environmental, workplace safety, drug safety, consumer product safety, and transportation safety regulations; banking, securities, and accounting fraud; price-fixing; collective bargaining and fair labor standards violations; employment discrimination; False Claims Act cases; foreign bribery; money laundering; and corporate tax evasion. Cases handled solely by individual U.S. Attorney offices and by state agencies will be added later.
H/T to Gary Price’s InfoDocket post. — Joe
ASU Ross-Blakley Law Library librarians Tara Mospan and Leslie A. Pardo created a Deferred Action for Childhood Arrivals (DACA) LibGuide. The guide has sections on the history of DACA, recent DACA developments, a list of local agencies offering DACA assistance, and a list of national advocacy groups. — Joe