This 50-state survey of U.S. e-cigarette regulation was prepared by the Tobacco Control Legal Consortium at the Public Health Law Center at Mitchell Hamline School of Law, and the Public Health and Tobacco Policy Center. The information is based on a survey of current state statutes (plus Washington, D.C.) pertaining to e-cigarettes in the following areas: definition of “tobacco product,” taxation, product packaging, youth access/other retail restrictions, and smoke-free air legislation. Some links go to legislative websites because the laws have not yet been codified or are not otherwise available. The survey is current to Sept. 15, 2018.

Published on LLRX, this guide by Marcus Zillman is a comprehensive listing of free privacy applications, tools and services that users may implement across multiple devices. These applications are from a range of sources that include small and large tech companies as well as subject matter specific websites, consumer industry groups and organizations. The focus of this article is on leveraging the latest technology and information that allows users to: (1) identify privacy issues and (2) implement privacy protections specific to their requirements, that span email, phone calls, chats, text messages, web browsing, computer drives and files, networks, collaboration spaces, and your photos.

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.

Interesting.

Here’s the abstract for William Baude & Jud Campbell, Early American Constitutional History: A Source Guide (Oct. 31, 2018): “This is a concise guide to source materials relevant to late 18th-century and early 19th-century constitutional history in the United States, often with accompanying reflections about using these sources in historical and legal scholarship. The guide aims to be useful to those who are just entering the field as well as to more established historians and lawyers who want to keep up with newly available sources.” Recommended.

Lawrence Solum’s Legal Theory Lexicon series has been a regular feature on his Legal Theory Blog. “Persuasive Authority” is a recent installment. “This time the Lexicon is focusing on the idea of persuasive authority. The basic idea is intuitive: the reasoning in a decision can persuade even if it does not bind. But what does that mean? How does the persuasion work? This Lexicon entry investigates those questions. As always, the Legal Theory Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.” Recommended.

Compared to other search services, Westlaw and Westlaw Edge always produce more search output with prefiltering searches compared to executing the exact same searches in postfiltering mode. No other tested search services did that. Those services (Bloomberg Law and Lexis) always posted the same number of results regardless of search mode. So why does prefiltering Westlaw-Westlaw Edge searching produce more hits than postfiltering searching?

Kevin Rothenberg tested Westlaw’s search algorithm for answers after confirming this insight from Susan Nevelow Mart’s The Algorithm as a Human Artifact: Implications for Legal [Re]Search. The black box that is Westlaw defeated Rothenberg’s efforts: “clearly, I do not understand some important aspect of West’s search algorithm,” wrote Rothenberg in Prefiltering vs. Postfiltering: Which is the Best Method for Searching? AALL Spectrum Nov.-Dec. 2018 at 36 [recommended but paywalled].

I wonder if the West Search development team would shed some light on this unique phenomenon. Perhaps CRIV can ask. (I doubt Thomson Reuters would provide an illuminating look inside West Search’s black box.)

Randy J. Kozel has posted Special Justifications, 33 Constitutional Commentary 471 (2018), on SSRN. Here is the abstract:

The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices have described as fundamental.

Policy and Legislative Research for Congressional Staff: Finding Documents, Analysis, News, and Training (R43434, Mar. 28, 2018)  “is intended to serve as a finding aid for congressional documents, executive branch documents and information, news articles, policy analysis, contacts, and training, for use in policy and legislative research. … This report is not intended to be a definitive list of all resources, but rather a guide to pertinent subscriptions available in the House and Senate in addition to select resources freely available to the public. This report is intended for use by congressional staff and will be updated as needed.”

John B. Nann and the late Morris L. Cohen (both of the Lillian Goldman Law Library, Yale Law School) have published The Yale Law School Guide to Research in American Legal History with Yale University Press. From the publisher’s blurb:

The study of legal history has a broad application that extends well beyond the interests of legal historians. An attorney arguing a case today may need to cite cases that are decades or even centuries old, and historians studying political or cultural history often encounter legal issues that affect their main subjects. Both groups need to understand the laws and legal practices of past eras. This essential reference is intended for the many nonspecialists who need to enter this arcane and often tricky area of research.

Here’s the abstract for Dimitrios Kyritsis, Interpreting Legislative Intent (Sept. 4, 2018):

Recent developments in the philosophy of language have revived philosophical interest in statutory interpretation. In particular, they have lent renewed support to the idea that legislative intent is a factual notion that determines the content of statutory law. The aim of this paper is to criticize this kind of ‘factual’ view of legislative intent. To this effect it contrasts it to a more moralized understanding of legislative intent, whereby legislative intent is interpretively construed through the mediation of moral considerations that justify the legislature’s having an impact on our legal rights and duties. It contrasts them at two levels, First, by how they can account for the so-called principle of legality in UK law, a canon of statutory construction, whereby courts should presume that Parliament did not intend to act in violation of human rights unless it specifically says so. Second, by interrogating the underpinnings of the factual and moralized view in political philosophy and more specifically the theory of practical authority. It concludes that the factual view misunderstands the authority assigned legislatures in systems that employ canons of statutory construction like the principle of legality. Because legal authority in those systems is shared between the legislature and courts, the legislature cannot claim to rule by say-so. In order to calculate its contribution to the law, we need to know much more than social facts about what it intended to communicate in enacting a statute.

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.

The Supreme Court Mapping Project, produced by Baltimore Law prof Colin Starger, gives one a way to analyze and predict developments in Supreme Court doctrine with simple visual charts that cover 1st, 4th, 5th, 8th and 14th Amendment doctrine as well as the commerce power, patents, civil procedure, and more. The software allows users to create sophisticated, interactive maps of Supreme Court doctrine by plotting relationships among majority, concurring and dissenting opinions. With the software, users can both visualize how different lines of Supreme Court opinions have evolved and employ animation to make interactive presentations. Very interesting.

Vincent is “the first AI-powered intelligent legal research assistant of its kind. Only Vincent can analyze documents in two languages (English and Spanish) from 9 countries (and counting), and is built ready to incorporate content not only from vLex’s expansive global collection, but also from internal knowledge management resources, public sources and licensed databases simultaneously. How does Vincent do it, you ask? Well, it’s been trained on vLex’s extensive global collection of 100 million+ legal documents, and is built on top of the Iceberg AI platform.” For more information, see this vLex blog post.

H/T to Bob Ambrogi for calling attention to BYU Law’s Law and Corpus Linguistics Technology Platform. The platform, which is open to all to use at no cost, has three corpora:

  1. Corpus of Founding Era American English, a collection spanning 1760 to 1799 that contains nearly 100,000 documents from the founders, ordinary people and legal sources, and that includes letters, diaries, newspapers, non-fiction and fiction books, sermons, speeches, debates, legal cases and other legal materials.
  2. Corpus of Supreme Court of the United States, a collection of all Supreme Court opinions in the United States Reports though the 2017 term (with the 2018 soon to be added).
  3. Early English Books Online (EBO), Eighteenth Century Collections Online (ECCO) corrected by the Text Creation Partnership (TCP) Evans Bibliography (University of Michigan).

— Joe

Save the date for TRG’s webinar on Data Analytics for Lexis, Westlaw and PACER: New Ways to Address Old Problems Using SmartRecharge. This webinar will demonstrate how Smart Recharge is utilized to:

  • Improve Cost efficiency of on-line resources
  • Create awareness of what end-users access
  • Address potential billing issues before they arise

Panelists:

  • Steve Lastres – Director of Knowledge Management Services, Debevoise & Plimpton
  • Patricia Barbone – Director of Library Services, Hughes Hubbard & Reed LLP
  • Daniel Pelletier – Director of Knowledge and Research Services, Kramer Levin Naftalis & Frankel LLP

Moderator: Leigh Walters – Chief Revenue Officer, TRG Screen

Data Analytics for Lexis, Westlaw and PACER

Date: 25 September 2018

Time: 12:00 ET / 17:00 London / 18:00 CET (duration: 1 hour)

— Joe

From the blurb for The Social Media Privacy Legislation Desktop Reference (Seyfarth Shaw, 2016-17):

Social media and related issues in the workplace can be a headache for employers. Seyfarth Shaw LLP’s Social Media Practice Group is pleased to provide you with an easy-to-use guide to social media privacy legislation and what employers need to know. The Social Media Privacy Legislation Desktop Reference:

• Describes the content and purpose of the various states’ social media privacy laws.
• Delivers a detailed state-by-state description of each law, listing a general overview, what is prohibited, what is allowed, the remedies for violations, and special notes for each state.
• Provides an easy-to-use chart listing the states that have enacted social media privacy laws and the features of the law in all such states.
• Offers our thoughts on the implications of this legislation in other areas, including trade secret misappropriation, bring your own device issues and concerns, social media discovery and evidence considerations, and use of social media in internal investigations.

— Joe

From Ben Grunwald, Strategic Publication, 92 Tul. L. Rev. 745 (2018):

Under the standard account of judicial behavior, when a panel of appellate court judges cannot agree on the outcome of a case, the panel has two options. First, it can publish a divided decision with a majority opinion and a dissent. Panels usually do not take this route because a dissent dramatically increases the probability of reversal. The second and more common option is for the panel to bargain and compromise over the reasoning of the decision and then publish a unanimous opinion.

This Article argues that a divided panel has a third option: strategic publication. The panel can choose not to publish any opinion at all and thus sap its decision of precedential weight and insulate it from further scrutiny by higher courts. This Article also reports the results of a novel empirical analysis of case-level data on published and unpublished decisions in one federal circuit court. While it finds little empirical evidence that majority-Democrat panels in the sample engage in strategic publication, it finds evidence that majority-Republican panels do. The Article concludes by offering several policy proposals to diminish strategic publication by separating the publication decision from judicial negotiations over the merits.

— Joe

From the abstract for A Rose by Any Other Name: Understanding Judicial Decisions that Do Not Cite Precedent, 15 Journal of Empirical Legal Studies 563 (2018) by Kawin Ethayarajh, Andrew James Green and Albert Yoon:

In common-law countries, legal precedent serves as a foundation of judicial opinions. Judges cite precedent to explain their decision, and it is this use of precedent that threads one decision to another. The Supreme Court in India stands in contrast to its counterparts in other countries in that it annually decides not dozens, but thousands, of cases. Perhaps unsurprisingly, nearly half the Court’s decisions do not cite any precedent at all. This article examines this phenomenon, specifically how it affects judges’ commitment to the common law, in substance if not in form. Examining every Court decision for the period 1950–2010, we textually analyze the opinions using machine learning to determine what connection, if any, exists between cases. We find that it is possible to accurately model how the Court cites to existing precedent and that even for decisions without any citations, there is almost always at least one prior decision the Court could have cited. Our finding suggest that time and resource demands are primarily responsible for the failure to cite relevant precedent, but that the Court acts efficiently, given the constraints placed on it, in deciding in which decisions to include precedent. This research, however, leaves unanswered whether the Court provides sufficient guidance to lower courts.

— Joe