Category Archives: Legal Research

What’s the difference between legal analytics and legal research?

From the conclusion from Law Technology Today’s Legal Analytics vs. Legal Research: What’s the Difference?:

Technology is transforming the legal services industry. Some attorneys may resist this transformation out of fear that new technologies might change how they practice law or even make their jobs obsolete. Similar concerns were voiced when legal research moved from books to computers. But that transition did not reduce the need for attorneys skilled in legal research. Instead, it made attorneys better and more effective at their jobs.

Similarly, legal analytics will not make the judgment and expertise of seasoned lawyers obsolete. It will, however, enable those who employ it to provide better and more cost-effective representation for their clients and better compete with their opponents.

— Joe

New lawyer directory: U.S. News Lawyer Directory powered by Best Lawyers

US News & World Report is partnering with Best Lawyers to release the U.S. News Lawyer Directory of lawyers who are working in private practice in the United States. The directory initially includes tens of thousands of lawyers, but eventually will cover more than 1.3 million private-practice lawyers in the United States, according to a press release. See the FAQ for details. — Joe

The administrative state, the judiciary and the rise of legislative history, 1890-1950

Drawing upon new citation data and archival research, Nicholas R. Parrillo’s Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, 123 Yale Law Journal ___ (2013) “reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user — a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.” Interesting. — Joe

A critical guide to the Fourteenth Amendment’s legislative history

From the abstract for Gregory E. Maggs’ A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment’s Original Meaning, 49 Conn. L. Rev. 1069 (2017):

Judges, lawyers, and scholars often look to the Fourteenth Amendment’s legislative history for evidence of the Amendment’s original meaning. Members of the Supreme Court, for instance, have cited floor statements, committee records, preliminary proposals, and other documents relating to the drafting and approval of the Fourteenth Amendment in many important cases. The documents containing this legislative history, however, are difficult to use. As explained in this Article, the Amendment came about through a complex process, in which Congress rejected several prior proposals for constitutional amendments before settling on a markedly different proposal that became the Fourteenth Amendment. Although the primary sources containing the legislative history are widely available online, some of them lack useful indexes and are only partially electronically searchable. In addition, statements made during the drafting and debate over the Fourteenth Amendment do not always yield clear answers to modern questions. Aggravating the situation, most lawyers, judges, law clerks, and legal scholars receive little or no instruction on how to use the documents containing the legislative history of the Fourteenth Amendment. Accordingly, they may feel unequipped either to use the legislative history to make claims about the Amendment’s original meaning or to evaluate the claims of others. Even the Supreme Court appears to have difficulty with the details. This Article seeks to improve the situation by providing a critical guide to the Amendment’s legislative history.

— Joe

The House Journal: Origin, Purpose, and Approval: CRS report

The House Journal: Origin, Purpose, and Approval (R45209, May 31, 2018) “considers the origin and purpose of the Journal as well as the procedures related to its approval. It discusses why a Member might call for a vote and why a Member might vote against the Journal’s approval. The report also examines record approval votes from 1991 to 2016 (102nd-114th Congresses), addressing trends in the frequency of these votes, the percentage of votes initiated by majority party Members, and the procedures used to call for or postpone record votes.” — Joe

Empirical analysis of Lexis and West headnotes in SCOTUS opinions from the 2009 term

“The data make clear that headnote assignments are far from scientific. In fact, they appear somewhat arbitrary, at least based on the discrepancies described in this article. Further study is warranted,” wrote Peter A. Hook and Kurt R. Mattson in Surprising Differences: An Empirical Analysis of LexisNexis and West Headnotes in the Written Opinions of the 2009 Supreme Court Term, 109 Law. Libr. J. 557 (2017). Here’s the abstract:

The number of headnotes assigned by LexisNexis and West are empirically examined for opinions of the 2009 Supreme Court Term. Additionally, Citizens United is examined in detail to determine the overlap of headnote-worthy language. Discrepancies in the number of headnotes assigned and disagreement as to headnote-worthy language call into question the rigor with which headnotes are created.

H/T to Legal Skills Prof Blog. Interesting. — Joe

New edition of the law librarian’s bible now available

Kendall Svengalis has published the 2018 edition of his Legal Information Buyer’s Guide & Reference Manual. Updates include:

  • Fifty eight (58) additional pages of material, now totaling 1,019 pages
  • More than 90 new treatises, reference titles, and other product reviews (Chapter 27)
  • Enhanced bibliographies of legal treatises in 67 subject areas, including 77 titles on Legal Research and Writing, with new, used, electronic, and West Monthly Assured Print Pricing on more than 2,700 titles in all (Chapter 27)
  • Enhanced bibliography of legal reference titles (Chapter 22)
  • Updated bibliographies of state legal resources and research guides, including the cost of CALR offerings (Chapter 28)
  • Completely updated bibliographic data for all covered titles
  • Completely updated cost and supplementation figures through 2018, with supplementation figures through 2017 (and 2018 for Matthew Bender).
  • Completely updated cost spreadsheet for supplemented titles (Appendix G)
  • Completely updated charts and tables reflecting 2017 annual reports and pricing data
  • Completely updated sample Westlaw and Lexis costs (Chapter 25)
  • Completely updated sample CALR costs for all vendors (Chapter 25)
  • Completely updated spreadsheet of published state statutory codes
  • Recent industry developments and acquisitions, including profit margins (Chapter 2)
  • Updated information on Fastcase and Law360
  • Cumulative supplementation cost data going back 25 years — all at your fingertips — to guide your acquisitions and de-acquisitions decisions
  • Special alerts of egregious price and supplementation cost increases in recent years

Order here. Strongly recommended. — Joe

Casetext CEO: Your judge knows you are bad at legal research

On Above the Law, Casetext CEO Jake Heller reports on research conducted by the company which uncovered that judges have a surprisingly consistent opinion of the work they see from litigators: they believe attorneys miss important cases often, and when they do, it has real consequences in the course of a litigation. Details here. — Joe

 

Is legislative history unconstitutional?

According to Victoria Nourse, The Constitution and Legislative History, 17 University of Pennsylvania Journal of Constitutional Law 313 (2014), the answer is “no.” From the conclusion of Nourse’s article:

It is time to retire the all-or-nothing 1980s debate about the constitutionality of legislative history. These arguments have been generally ignored by the vast majority of judges and the Supreme Court. New developments in the theory of statutory interpretation, including decision process theory, help to sharpen the critique of legislative history but at the same time retire the constitutional questions as they have been posed. When applied to legislative rules and proceedings, the arguments against the constitutionality of legislative history, are not supported by the text, history or structure of the Constitution.

— Joe

The emergence of ‘computer science and law’ as the new legal paradigm for law and policy practice

Here’s the abstract for James Miller’s The Emergence of ‘Computer Science and Law’: The New Legal Paradigm for Law and Policy Practice in the Computational Age of Algorithmic Reasoning and Big Data Practice (2018):

Some thirty years ago “law and economics” emerged as a new paradigm of legal reasoning by providing new legal resolutions to a set a problems that were particularly suited to the application of economics in the legal process. Today algorithms and data, software-based systems, and technology solutions like blockchain both stress existing legal practice and offer new avenues for solving legal problems. This paper proposes that the rise of “computer science and law” as a new legal paradigm is emerging in ways that leverage and respond to the application and ability of computer science knowledge and reasoning to answer novel and venerable legal problems.

The paper’s analytic approach maps the boundaries of law and computer science in this new paradigm, against the stressors that necessitate new approaches with the value of technology solutions already revolutionizing other sectors. The paper answers questions such as what is persuasive or explanatory about law, what social function does it serve, and how is legal reasoning distinctive from philosophy, sociology, economics, and computer science? Following this analytic approach, the paper presents the current evolution of legal pedagogy, practice, and expectations and contributes to a deeper comparative understanding of how law can serve important social goals.

The paper begins with a definitional section. Descriptions from jurisprudence and legal theory provide a baseline of how philosophy and social sciences differentiate “law” from other disciplines, based on the nature of the reasoning, justifications, outcomes and knowledge that law entails. Leveraging what is distinctive about legal reasoning and knowledge, a historical review of computer and data science and artificial intelligence provides a view of the evolution of reasoning and knowledge is modeled using software to accomplish tasks relevant to law.

The paper explores how legal practice is evolving to challenges and opportunities posed by computational systems. The paper reviews the “legalhacker” movement that began as a software programming and policy advocacy effort and other “computation law” examples of innovations in law and policy practice, and focus on technology policy issues. A survey of new legal pedagogy focused on teaching data science, software programming and other technical skills reveals a roadmap of computer science skillsets and techniques that are a current focus for legal educators. Review and comparisons of the information technology response of “legaltech” with “fintech” IT innovations focused on finance or other sectors will reveal the relative trends and strengths observed in the space.

Finally, two analytic approaches are proposed for evaluating the strength of new technology tools and law and policy practice approaches. A set of key features identify metrics for evaluating automating legal reasoning systems ability to predict, explain, and defend legal decisions. A roadmap of technical skills and areas of focus for new law and policy practitioners provide a useful rubric for development of new practice groups, outsourcing and IT strategies, and legal training focused on “computer science and law” practice.

Whether the challenge of legal practice in administrative law with comment dockets numbering in the tens of millions, protecting fundamental legal principles in practices using complex software systems controlling the fate of defendants, or improving and expanding access to law and policy services, the paper describes the expanding role of computer science and law and a path forward for legal practitioners in the computational age.

Interesting. — Joe

Should the courts use corpus data sua sponte for statutory interpretation?

Here’s the abstract for Daniel Tankersley’s Beyond the Dictionary: Why SUA Sponte Judicial Use of Corpus Linguistics Is Not Appropriate for Statutory Interpretation (Feb. 1, 2018):

In interpreting statutory language, judges have often turned to the “ordinary meaning” canon, which calls for statutory terms to be given their obvious meaning where the text is clear and unambiguous. To solve any perceived ambiguities in language, judges have historically turned to dictionaries. Because of the lack of consistency of this approach, in both results and methodologies, many legal scholars and judges have looked to other methods of arriving at the elusive “ordinary meaning” of statutory terms.

One of these emerging methods, which has been endorsed by many legal scholars and a few judges, is corpus linguistics. Corpus linguistics is the analysis of language through analysis of a database (corpus) of real-world text. By analyzing statutory terms in databases of naturally-occurring context (across multiple genres), many legal scholars and judges believe a term’s ordinary meaning can be objectively and empirically shown.

This article will argue that, while corpus linguistics may have its place in the legal field, judges should not raise corpus data sua sponte in judicial opinions. To make this argument, the article will describe the many inconsistent methodologies that come about when legal scholars and judges have utilized and analyzed corpus data, in order to illustrate how the deceptively empirical data generated by the corpus is a uniquely dangerous tool for statutory interpretation. The article will also lay out some procedural objections, grounded in judicial notice and the adversarial process.

— Joe

Google launches “Talk to Books” semantic-search tool

Ask Google’s new semantic-search tool “Talk to Books” a question and the tool will return a list of books that include information on that specific question. How? An AI-powered tool will scan every sentence in 100,000 volumes in Google Books and generate a list of likely responses with the pertinent passage bolded. Give the new tool a test drive here. — Joe

Federal and state bill drafting guides

At the federal level, see House Office of Legislative Counsel, Legislative Drafting Guide and Style Manual. For a 50-state survey, see this compilation of resources produced by the National Conference of State Legislatures. — Joe

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

A best practices guide to integrating social science methodologies to improve corpus design and analysis

From James Cleith Phillips and Jesse Egbert’s Advancing Law and Corpus Linguistics: Importing Principles and Practices from Survey and Content-Analysis Methodologies to Improve Corpus Design and Analysis __ BYU Law Review __ (2017): “The nascent field of law and corpus linguistics has much to offer legal interpretation. But to do so it must more fully incorporate principles from survey and content analysis methodologies used in the social sciences. Importing such will provide greater rigor, transparency, reproducibility and accuracy in the important quest to determine the meaning of the law. This paper highlights some of those principles to provide a best-practices guide to those seeking to perform law and corpus linguistic analysis.” — Joe

House committee markups manual

A principal responsibility of House committees is to conduct markups, to select legislation to consider, to debate it and vote on amendments to it (to mark up), and to report recommendations on passage to the House. House Committee Markups: Manual of Procedures and Procedural Strategies (R41083 Mar. 27, 2018) examines procedures and strategy related to committee markups and provides sample procedural scripts. — Joe

An evolving interpretative framework for corpus linguistics in legal interpretation

Here’s the abstract for Stephen Mouritsen’s Corpus Linguistics in Legal Interpretation. An Evolving Interpretative Framework, Journal of Language and Law, 6 (2017), 67-89:

When called upon to interpret the undefined words in a legal text, U.S. judges will often invoke a rule (or canon) of interpretation called the “plain meaning rule,” which holds that if the language of the text is clear and unambiguous, courts cannot consider any extrinsic evidence to determine what the text means. But U.S. courts have no uniform definition of what “plain meaning” actually means and no systematic method for discovering and resolving ambiguities in legal texts. Faced with these challenges, some U.S. judges and academics have recently begun to consider the use of corpus linguistics to resolve uncertainties in the interpretation of legal texts. A corpus-based approach to legal interpretation promises to increase the objectivity and predictability of decisions about the meanings of legal texts. However, such an approach also presents a number of theoretical problems that must be addressed before corpus methods can be fully incorporated into a theory of legal interpretation. This article documents this recent turn to corpus linguistics in legal interpretation and outlines some of the challenges facing the corpus-based approach to legal interpretation.

— Joe

Law and language and the European Union Case Law Corpus

From the abstract for The European Union Case Law Corpus (EUCLCORP): A Multilingual Parallel and Comparative Corpus of EU Court Judgments by Aleksandar Trklja and Karen McAuliffe:

The empirical approach to the study of legal language has recently undergone profound development. Corpus linguistics study has, in particular, revealed previously unnoticed features of the legal language at both the lexico-grammatical and discourse level. Existing resources such as legal databases, however, do not contain functionalities that enable the application of corpus linguistics methodology. To address this gap in the context of EU law we developed a multilingual corpus of judgments that allows scholars and practitioners to investigate in a systematic way a range of issues such as the history of the meaning(s) of legal term, the migration of terms between legal systems, the use of binominals or the distribution of formulaic expressions in EU legal sub-languages. As well as being the first multilingual corpus of judgments it is also the largest legal multilingual corpus ever created. Since it contains case law from two sources (the Court of Justice of the European Union and EU national courts) it is also the largest comparable corpus of legal texts. The aim of the corpus is to contribute to the further development of the emerging field of language and law.

— Joe

Corpus linguistics as a tool of legal interpretation

In Corpus Linguistics as a Tool in Legal Interpretation, Brigham Young University Law Review, 2018 Forthcoming, by Lawrence Solan and Tammy Gales “set out to explore conditions in which the use of large linguistic corpora can be optimally employed by judges and others tasked with construing authoritative legal documents. Linguistic corpora, sometimes containing billions of words, are a source of information about the distribution of language usage. Thus, corpora and the tools for using them are most likely to assist in addressing legal issues when the law considers the distribution of language usage to be legally relevant. As Thomas Lee and Stephen Mouritsen have so ably demonstrated in earlier work, corpus analysis is especially helpful when the legal standard for construction is the ordinary meaning of the document’s terms. We argue here that four issues should be addressed before determining that corpus analysis is likely to be maximally convincing. First, the legal issue before the court must be about the distribution of linguistic facts. Second, the court must decide what makes an interpretation “ordinary.” Third, if one wishes to search a corpus to glean the ordinary meaning of a term, one must decide in advance what to search. Fourth, there are different reasons as to why a particular meaning might present a weak showing in a corpus search and these need to be understood. Each of these issues is described and discussed.” — Joe