Category Archives: Scholarship

Recess appointments and the framers’ understanding of advice and consent

Here’s the abstract for Nicole Schwartzberg’s What Is A ‘Recess’? : Recess Appointments and the Framers’ Understanding of Advice and Consent, 28 Journal of Law and Politics 231 (2013):

Article II, Section 2, Clause 3 of the U.S. Constitution (commonly referred to as the “Recess Appointments Clause”) confers upon the President the “Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” President Obama’s January 2012 recess appointments, made while the Senate attempted to block the President from making any recess appointments over the holiday break by holding “pro forma” sessions, raised new questions about the scope of the President’s power to avoid Senate confirmation. Can the Senate successfully prevent the President from making a recess appointment by convening every three days for sessions, even when no business is actually conducted?

Although a growing literature has sought to address this question, surprisingly little attention has been paid to the Framers’ intent when they incorporated the Recess Appointments Clause into our Constitution, in part due to the absence of legislative history accompanying the provision. This Article argues that while there is little direct evidence of the Framers’ intent concerning the Recess Appointments Clause, attending to adjacent provisions of the Constitution that require the Senate’s advice and consent, such as the Appointments Clause and the Treaty Clause, sheds light on the scope of unilateral power the Framers intended the clause to confer on the Executive Branch.

Examining the history of the Appointments Clause reveals that the Framers modeled the Senate’s role after the practice of advice and consent that existed in the Commonwealth of Massachusetts under British rule prior to the federal Constitutional Convention. That model prized an active role for the Senate in restraining the Executive Branch, and interpreted the Senate’s failure to act on Executive proposals as a valid rejection of those measures. Similarly, the Treaty Clause contemplated that the Senate would serve as a firm check on the President’s power to sign multilateral agreements. The history of these adjacent constitutional provisions, this Article argues, provides compelling evidence that the recent use of “pro forma” sessions is a constitutional method in the contemporary separation of powers arsenal for the Senate to preserve its right to reject a president’s nominees.

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

Winkler’s We the Corporations: How American Businesses Won Their Civil Rights

Ronald Collins’ interview of Adam Winkler about his new book, We the Corporations: How American Businesses Won Their Civil Rights (Liveright, Feb. 27, 2018), for SCOTUSblog piqued my interest in Winkler’s new book. Here’s the blurb:

We the Corporations chronicles the astonishing story of one of the most successful yet least well-known “civil rights movements” in American history. Hardly oppressed like women and minorities, business corporations, too, have fought since the nation’s earliest days to gain equal rights under the Constitution?and today have nearly all the same rights as ordinary people.

Exposing the historical origins of Citizens United and Hobby Lobby, Adam Winkler explains how those controversial Supreme Court decisions extending free speech and religious liberty to corporations were the capstone of a centuries-long struggle over corporate personhood and constitutional protections for business. Beginning his account in the colonial era, Winkler reveals the profound influence corporations had on the birth of democracy and on the shape of the Constitution itself. Once the Constitution was ratified, corporations quickly sought to gain the rights it guaranteed. The first Supreme Court case on the rights of corporations was decided in 1809, a half-century before the first comparable cases on the rights of African Americans or women. Ever since, corporations have waged a persistent and remarkably fruitful campaign to win an ever-greater share of individual rights.

Although corporations never marched on Washington, they employed many of the same strategies of more familiar civil rights struggles: civil disobedience, test cases, and novel legal claims made in a purposeful effort to reshape the law. Indeed, corporations have often been unheralded innovators in constitutional law, and several of the individual rights Americans hold most dear were first secured in lawsuits brought by businesses.

Winkler enlivens his narrative with a flair for storytelling and a colorful cast of characters: among others, Daniel Webster, America’s greatest advocate, who argued some of the earliest corporate rights cases on behalf of his business clients; Roger Taney, the reviled Chief Justice, who surprisingly fought to limit protections for corporations?in part to protect slavery; and Roscoe Conkling, a renowned politician who deceived the Supreme Court in a brazen effort to win for corporations the rights added to the Constitution for the freed slaves. Alexander Hamilton, Teddy Roosevelt, Huey Long, Ralph Nader, Louis Brandeis, and even Thurgood Marshall all played starring roles in the story of the corporate rights movement.

In this heated political age, nothing can be timelier than Winkler’s tour de force, which shows how America’s most powerful corporations won our most fundamental rights and turned the Constitution into a weapon to impede the regulation of big business.

Recommended. — Joe

The renaissance debate over printing English law: An intellectual history of law publishing

Here’s the abstract for The Commoning of the Common Law: The Renaissance Debate Over Printing English Law, 1520-1640, 146 Univ. of Penn. Law Review 323 (1998), by Richard J. Ross:

Should the laws of England be printed? What were the likely effects of different strategies of dissemination? From the early sixteenth century through the English Revolution, these questions framed a debate among English lawyers over the propriety, advantages and risks of legal publication. Advocates of law printing envisioned national unity, godliness, and social harmony flowing from the legal press as readily as quartos and folios. Opponents, like the barrister William Hudson, warned of releasing the inner reasons and fictions of the law “to the multitude, who are apt to furnish themselves with shifts to cloak their wickedness, rather than to gain understanding to further the government of the Commonwealth.” Participating in the expansion of law publishing underway in Elizabethan and early Stuart England, lawyers questioned print’s impact on a profession heavily dependent on manuscripts and oral tradition and on a nation reading lawbooks without the interpretive conventions imbued by legal training.

This essay pursues an intellectual history of law publishing. It explores lawyers’ uncertain, divisive, and changing opinions about the effects and meanings of the legal press – their attacks, defenses, interpretations, aspirations, and warnings.

The story unfolds in four sections. The first explores the initial justification of law printing offered in Henrician England, an echo of humanist and Protestant advocacy of textual dissemination as an agent of godly order. As it dissolved obscurantism, its friends claimed, the legal press solidified obedience to kingly authority against local, seigneurial, and ecclesiastical rivals.

The second section discusses how an emerging group of latter sixteenth-century skeptics such as Hudson, the “anti-publicists,” questioned these irenic predictions about the effects of lawbooks. Disorder, degeneracy, and disunion were their counter-prophesies. Absolutist and high church conformist suspicions of “publicity” inclined anti-publicists to disapprove of revealing the law’s inner reasons and fictions. They wanted it to speak in a voice of command, not persuasion.

The third section explores the contexts engendering the debate and making plausible the disputants’ contrasting prophesies about the effects of lawbooks. Three interrelated developments stand out: the growing lay audience putting lawbooks to political uses and undermining the tacit identification of the reading public with the profession; increasing episcopal and absolutist suspicion of the unwitting dangers of licit printing; and the gradual realization within the profession of how print reshaped the control of knowledge (and hence of status and power) among themselves and between themselves and the nation.

The fourth and final section reflects on how the controversy over law printing implicated a larger change in English legal culture: the “commoning” of the common law. In reaction to the anti-publicist critique, publicists helped further the gradual redefinition of the law as a national inheritance rather than a guild or royal possession. They defended popular right of access to the inner reasons of the law, valorized lay rather than royal or guild “ownership” of the law, and brought out the latent constitutionalist implications of legal printing. In the realm of perception, they helped transform the laws of the realm of England into the laws of Englishmen.

Interesting. — Joe

Developing a taxonomy of lies under the First Amendment

From the abstract for Alan K. Chen & Justin F. Marceau, Developing a Taxonomy of Lies Under the First Amendment, 89 U Colorado Law Review 655 (2018):

In previous work, we argued that the First Amendment limits the power of government to regulate lies that, paradoxically, promote the democracy and truth-finding functions of free speech. See Alan K. Chen & Justin Marceau, High Value Lies, Ugly Truths, and the First Amendment, 68 VAND. L. REV. 1435 (2015). In doing so, we claimed that the Supreme Court had previously protected lies solely to avoid chilling truthful speech, and not because they might have intrinsic value in our constitutional democracy. In that work, we did not fully address a related question – under what circumstances are lies subject to valid government regulation because they cause material harm or yield material gains to the speaker. What harms and benefits count to disqualify a lie from first Amendment coverage? Contemporary controversies about the role of falsehoods in our democracy, ranging from investigative deceptions to facilitate undercover investigations by activists on both the left and the right, to a Presidential campaign filled with claims that both major party candidates were liars, to an apparent epidemic of fake news stories on social media, suggest that there exists some urgency to further define the contours of the First Amendment’s protection of lies.

The Supreme Court’s fractured decision in United States v. Alvarez offers some clues, but does not elaborate sufficiently to explain the boundaries of constitutional protection for lies. For instance, Justice Kennedy’s plurality opinion distinguished laws that regulate lies because those falsehoods cause some form of “legally cognizable harm” from laws that regulate lies without reference to such harms. In addition, Justice Kennedy notes that one of the flaws of the Stolen Valor Act was that it did not limit criminal liability to those who lied about military honors to gain a “material advantage.” Similarly, in his concurring opinion, Justice Breyer observed that the saving feature of most statutory and common law provisions prohibiting lies was that they typically require “proof of injury.” But these limiting principles are stated at too great a level of generality to be useful. All lies cause some harm to the listener or produce some benefit to the speaker. The harm or benefit might often be largely abstract, symbolic, or psychological, but there is still a harm or a benefit. Indeed, all of the Court’s opinions in Alvarez acknowledge there is some harm associated with lies told about earning military honors, including a general dilution of the prestige associated with such honors, and there was some benefit to Alvarez in telling the lie to his local, political constituents. Yet six of the current eight Justices agreed that the lie in question fell within the protections of the First Amendment.

In this article, we explore what the Alvarez Court did not. We set out some general parameters to guide courts in determining whether the harms or gains resulting from a particular lie are sufficiently material to justify excluding the lie from First Amendment coverage. Some cases are easy even under existing doctrine, before and after Alvarez. Perpetrating a fraud to persuade a person to give away money unequivocally causes both harm to the victim and material gain to the speaker, both of which provide a sufficient state interest to allow punishment of the lie. But do other types of more intangible benefits to the liar count as material gains under Alvarez? A lie might bring a feeling of satisfaction from having fooled another. What if lying makes one feel better about her place in the world? What if it enhances one’s political agenda, providing benefits to one’s psyche and self-esteem? May the state proscribe a lie that leads to information used in an award-winning piece of investigative journalism because it yielded a material gain to both author and publication? What about a lie that generates favorable publicity, which then leads to more donations to an advocacy group with which the liar is affiliated? And in the context of political campaigns, what about a lie designed to get a voter to favor a particular candidate or ballot measure? For that matter, should lies on political topics receive more or less protection because of the context? Does the motive for the lie matter? Is a lie designed to produce truth within the ambit of free speech doctrine even if it causes harm or produces benefits to the liar?

Ultimately, we argue that many lies will be protected even though they will produce some benefit to the speaker and some harm to the listener. Lies that are consistent with the values and goals of free speech will receive the most protection. Some benefit-producing and harm-causing lies that are largely worthless, as with the lie in Alvarez, will also be protected. There may need to be a middle category of lies that receive some protection, but may be regulated as long as the state meets some form of intermediate scrutiny. And those lies that cause tangible harm or produce material benefits in contexts that are divorced from the underlying purposes of free speech theory will not be protected, and indeed not covered by the First Amendment at all.

— Joe

Why Congress matters

Why Congress Matters: The Collective Congress in the Structural Constitution, 70 Florida Law Review ___ (2018) by Neomi Rao “provides a modern reconsideration of why Congress still matters by examining the “collective Congress” within the text, structure, and history of the Constitution. Like the unitary executive, the collective Congress is a structural feature of the Constitution’s separation of powers. With deep roots in political theory, the Framers created a representative and collective legislature that would provide a legitimate mechanism for bringing together the nation’s diverse interests to most effectively pursue the common good. To fully realize the benefits of collective lawmaking, the Constitution insists on the double exclusivity of the legislative power: only Congress can exercise legislative power, and Congress possesses only legislative power. The Constitution ties the ambitions of representatives and senators to Congress as an institution by prohibiting members of Congress from exercising the executive or judicial powers. This structure supports the members’ fiduciary responsibilities to the people, minimizes corruption, and reinforces the independence and integrity of the lawmaking power.

“Understanding the principles of a collective Congress provides a framework for analyzing a range of separation of powers questions, particularly those arising from the delegation of legislative power to administrative agencies. Quite simply, presidential control of administration cannot replace congressional control of legislation. Congress remains relevant in our complex modern society because it provides a unique form of accountability for ascertaining and pursuing the public good, preserving the rule of law, and protecting individual liberty. The collective Congress provides a powerful conceptual framework for understanding the scope of the Constitution’s “legislative power” and how Congress may exercise it. The administrative state blurs the line between the executive and legislative powers. The collective Congress sharpens that line and helps explain why Congress still matters in our system of government.”

— 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

The right to bear arms against one’s own lawful government

From the abstract of Edward H. Sisson’s Conduct of 153 American Founders on the Right to Bear Arms in Resistance to Their Government They Wanted to Keep, But Keep Within Bounds (Sept. 18, 2017):

What we know today as the “Second Amendment” was recommended to the then-11 States of the United States on September 25, 1789, by the 22-person US Senate and the 59-person US House of Representatives of the United States in the First United States Congress. What had these 81 individuals done, in their own lives, in arms, during the time when they acknowledged King George the Third to be their lawful king – and wanted to keep him as their king, and to keep themselves as his subjects?

Enquiring into the evidence of their words and conduct became the first research subject of this study. The researcher then saw grounds to expand the study to United States Supreme Court Justices, US Judges, US Presidents, US Vice Presidents, and US Cabinet officers. The list of individuals to examine grew from 81 to 153 persons.

The study also necessarily included examination of the kind of government that the 153 individuals thought they had had in the past, and were trying to keep for the future; examination of the individuals who were trying to change that government; and why they were trying to change that government. The study required ascertaining what was the government the 153 individuals were trying to keep, but keep within bounds, and who it was, and why, that some other group of people was trying to change the bounds of that government. This drew the study back from the actual armed resistance period of 1775-1776, to 1767 up to 1775.

The following are the results of that study. The results show that of the 153 people examined, not one opposed the right to bear arms against their own recognized lawful government, if the use of arms was to keep that government within the bounds they recognized it to have. 111 created direct, personal evidence, admissible in a hypothetical “British armed-treason trial” conducted on July 5, 1776, to convict them of having actively exercised the personal right to use personal arms against their own recognized lawful government, to keep that government within the bounds they recognized it to have. Another 8 created circumstantial evidence of the same, for a total of 119. 34 left no evidence discoverable today, in 2017, that the British could have used to convict them on July 5, 1776.

To the 119, it was not “treason,” but “restoration” they fought for, in the “resistance” period. In essence, they fought to prevent those who commanded the government from trying to change the government. The 119 fought to prevent the commanders of their government from committing treason against the very government they commanded.

— Joe

The Bill of Rights in the early state courts

Here’s the abstract for Jason Mazzone’s The Bill of Rights in the Early State Courts, 92 Minnesota Law Review 1 (2007):

The Bill of Rights originated as a constraint only on the federal government. As every law student learns, therefore, in the 1833 case of Barron v. Baltimore, the Supreme Court dismissed a Fifth Amendment takings claim against a state. This Article shows, however, that early state courts regularly invoked and applied the provisions of the Bill of Rights in reviewing state law and state executive action. Barron meant only that the federal courts would not apply the provisions of the Bill of Rights to the states. State courts could decide independently to apply those provisions against their own state governments, and the jurisdictional limits of the 1789 Judiciary Act shielded those state court decisions from Supreme Court review. Largely forgotten today, state court applications of the Federal Bill of Rights against state government represented a vibrant body of constitutional law in the early Republic. Restoring this history challenges the conventional account that states were mostly unconstrained until ratification of the Reconstruction-era amendments, and that only in the mid-twentieth century did courts begin to protect adequately the rights of individuals. Instead, early constitutional law was multifaceted, sophisticated, and innovative, with a diverse set of jurists invoking and applying an array of constitutional rules to keep government at all levels in check.

The history of the Federal Bill of Rights in the early state courts points also to some deficiencies of modern constitutional law. Compared to the antebellum era, constitutional law today is radically consolidated. Among other things, state courts cannot extend federal constitutional protections beyond the limits the Supreme Court itself sets; this leaves individuals with fewer places to turn to protect their rights. Consolidation is also inconsistent with federalism. The historical practice of allowing state courts leeway to interpret independently the Federal Constitution reflected the importance of state courts in our constitutional design and the benefits that accrue to the system as a whole when individual state courts are able to make different choices. In addition, consolidation has weakened state constitutional law, as developed and applied by the state courts. Incorporation of federal constitutional protections, as defined by the Supreme Court, has displaced state constitutional law as the principal source of individual rights. Rather than decide independently what provisions of their own state constitutions mean, state courts have tended to hew to the Supreme Court’s understandings of analogous provisions in the Federal Constitution. State courts have lost their voices under the Federal Constitution and they have fallen out of practice speaking under their state constitutions. Finally, consolidation helps account for the enormous tension that is characteristic of our current regime when federal constitutional rights are, ultimately, dependent upon the decisions of the Supreme Court.

— Joe

The ideological origins of the rule of law

From the abstract for Peter J. Hill, The Ideological Origins of the Rule of Law (Apr. 20, 2018):

The background conditions for the emergence of the rule of law are important but underdeveloped. This paper traces more fully the relationship between the concept of human equality and the development of the rule of law. It presents evidence that the Jewish and Christian concept of all human beings as God’s image bearers is an important contributor to the rule of law in Western civilization. The formulation of universal human equality was not, however, a sufficient condition for the emergence of the rule of law. It took centuries of articulation in different institutions and social settings. It only reached full fruition when it was joined with an understanding of appropriate political systems as expressed by political theorists such as Locke, Montesquieu, and Madison.

— Joe

Failures of American methods of lawmaking

In Failures of American Methods of Lawmaking in Historical and Comparative Perspectives (Cambridge UP, Mar. 8, 2018), James R. Maxeiner takes on the challenge of demonstrating that historically American law makers did consider a statutory methodology as part of formulating laws. In the nineteenth century, when the people wanted laws they could understand, lawyers inflicted judge-made, statute-destroying, common law on them. Maxeiner offers the cure for common law, in the form of sensible statute law. Building on this historical evidence, Maxeiner shows how rule-making in civil law jurisdictions in other countries makes for a far more equitable legal system. Sensible statute laws fit together: one statute governs, as opposed to several laws that even lawyers have trouble disentangling. In a statute law system, lawmakers make laws for the common good in sensible procedures, and judges apply sensible laws and do not make them. This book shows how such a system works in Germany and would be a solution for the American legal system as well. — Joe

Presidential impeachment in partisan times

In Presidential Impeachment in Partisan Times: The Historical Logic of Informal Constitutional Change, 51 Connecticut Law Review __ (2018), Stephen M. Griffin argues that “prior scholarship has largely ignored the historical context and thus the real lessons of the three most prominent instances in which Congress attempted to impeach and convict a president: those of Andrew Johnson, Richard Nixon, and Bill Clinton. The essay then goes beyond these historical episodes to make a contribution to the ongoing debate in constitutional theory over theories of informal constitutional change.

“Impeachment scholarship has been predominantly originalist. There is a large measure of consensus on the meaning of the “high crimes and misdemeanors” standard, which I call the “Hamiltonian vision.” The Hamiltonian vision is that impeachment can be used for a broad category of “political” offenses. Most scholars agree that impeachment does not require Congress to allege an indictable offense or other violation of law. Despite this scholarly consensus, the historical reality of the Johnson, Nixon, and Clinton impeachments is quite different. Contrary to prior legal scholarship, I argue that a party-political logic overwhelmed the framers’ design and created a situation in which the position that impeachment is limited to indictable offenses could not be effectively discredited.

“I use the example of impeachment to generalize about the process of informal constitutional change and understand what I call its “historical logic.” The essay goes beyond a simple reaffirmation of living constitutionalism to advocate the value of an alternative methodology called “developmental” analysis. Developmental analysis makes explicit what is implicit in most work on living constitutionalism – that it rests on a historicist approach in which institutional changes such as political parties establish new constitutional baselines which are the practical equivalent of constitutional amendments. These baselines then form the new context going forward for evaluating the constitutionality of official action.”

Interesting. — Joe

An introduction to computer-assisted legal linguistics

Computer-Assisted Legal Linguistics: Corpus Analysis as a New Tool for Legal Studies, ___ Law & Social Inquiry ___ (2017), by Friedemann Vogel, Hanjo Hamann and Isabelle Gauer introduces computer-assisted legal linguistics, an area of study ranging from computer-supported qualitative analysis of legal texts to legal semantics and legal sociosemiotics based on big data. From the article’s abstract:

Law exists solely in and through language. Nonetheless, systematical empirical analysis of legal language has been rare. Yet, the tides are turning: After judges at various courts (including the US Supreme Court) have championed a method of analysis called corpus linguistics, the Michigan Supreme Court held in June 2016 that this method “is consistent with how courts have understood statutory interpretation.” The court illustrated how corpus analysis can benefit legal casework, thus sanctifying twenty years of previous research into the matter. The present article synthesizes this research and introduces computer-assisted legal linguistics (CAL2) as a novel approach to legal studies. Computer-supported analysis of carefully preprocessed collections of legal texts lets lawyers analyze legal semantics, language, and sociosemiotics in different working contexts (judiciary, legislature, legal academia). The article introduces the interdisciplinary CAL2 research group (www.cal2.eu), its Corpus of German Law, and other related projects that make law more transparent.

— Joe

Susan Nevelow Mart’s Results may vary in legal research databases published in ABA Journal

“Call me naive,” wrote Bob Ambrogi about the conclusions reached by Susan Nevelow Mart in her excellent research found in The Algorithm as a Human Artifact: Implications for Legal {Re}Search, “but I would have thought that entering the identical search query on, say, both Westlaw and Lexis Advance would return fairly similar results.” I was somewhat shocked that Bob hadn’t realized what law librarians have known for 40 years, an insight made even more important since WEXIS implemented “black box” searching because it won’t release proprietary information about the construction of their search algorithms.

Perhaps the editors of the ABA Journal thought their readers might also be naive because the Journal published a summary of Nevelow Mart’s research results in the March issue. See Results may vary in legal research databases by Susan Nevelow Mart. Here’s a snip:

At first glance, the various legal research databases seem similar. For instance, they all promote their natural language searching, so when the keywords go into the search box, researchers expect relevant results. The lawyer would also expect the results to be somewhat similar no matter which legal database a lawyer uses. After all, the algorithms are all trying to solve the same problem: translating a specific query into relevant results.

The reality is much different. In a comparison of six legal databases—Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel and Westlaw—when researchers entered the identical search in the same jurisdictional database of reported cases, there was hardly any overlap in the top 10 cases returned in the results. Only 7 percent of the cases were in all six databases, and 40 percent of the cases each database returned in the results set were unique to that database. It turns out that when you give six groups of humans the same problem to solve, the results are a testament to the variability of human problem-solving. If your starting point for research is a keyword search, the divergent results in each of these six databases will frame the rest of your research in a very different way.

Highly recommended. This ABAJ article should be assigned reading for law school students — all law school students, not just 1Ls taking their LRW courses. — Joe

Weaponizing your digital footprint because computer-based personality judgments are more accurate than those made by humans

Computer-based personality judgments are more accurate than those made by humans, PNAS January 27, 2015. 112 (4) 1036-1040, by Wu Youyou, Michal Kosinski and David Stillwell was one of the building blocks for the development of products and services sold to clients by firms like Cambridge Analytica. The study compares the accuracy of personality judgment —- a ubiquitous and important social-cognitive activity —- between computer models and humans. Using several criteria, the authors show that computers’ judgments of people’s personalities based on their digital footprints are more accurate and valid than judgments made by their close others or acquaintances (friends, family, spouse, colleagues, etc.). The study’s findings highlight that people’s personalities can be predicted automatically and without involving human social-cognitive skills. — Joe

The dictionary as a specialized corpus

Here’s the abstract to Jennifer Mascott’s The Dictionary as a Specialized Corpus, B.Y.U. L. Rev., 2018 Forthcoming:

Scholars consider reliance on dictionary definitions to be the antithesis of objective, big-data analysis of ordinary meaning. This Article contests that notion, arguing that when dictionaries are treated as a specialized database, or corpus, they provide invaluable textured understanding of a term. Words appear in dictionaries both as terms being defined and as terms defining other words. Examination of every reference to a contested term throughout a dictionary’s definitional entries of other words may substantially benefit statutory and constitutional interpretation. Because dictionaries catalog language, their use as a specialized corpus provides invaluable insight into the ways a particular word is used in relation to terms throughout the English language. Such evidence provides a crucial interpretive launchpad, even for corpus-based researchers looking for a collection of possible word meanings to analyze in a database of ordinary-language documents.

— Joe

Judicial activity increasing dramatically according to empirical inquiry of Supreme Court oral arguments

The New Oral Argument: Justices as Advocates, 94 Notre Dame Law Review ___ (2019) by Tonja Jacobi and Matthew Sag “conducts a comprehensive empirical inquiry of 55 years of Supreme Court oral argument, showing that judicial activity has increased dramatically, in terms of words used, duration of speech, interruptions made, and comments proffered. The Court is asking no more questions of advocates; instead, the justices are providing conclusions and rebutting their colleagues. In addition, the justices direct more of their comments and questions to the side with whom they ultimately disagree. Furthermore, “losing” justices, be it ideological camps that are outnumbered on the Court or dissenters in specific cases, use oral arguments to push back against the dominant group, reasserting an opposing narrative through oral argument. These forms of judicial behavior constitute advocacy, rather than judging. These are not trends that have gradually emerged over time: rather, we predict and establish that oral arguments changed dramatically in 1995, in response to the rapidly growing political polarization in Congress and the public at large. Partisan division, anger at political opponents, and disappearing middle ground all affect not only political players, but shape how Supreme Court justices behave at oral argument, the one public part of the Court’s decision-making process.” — Joe

The Preamble as key to interpreting the Constitution

The Preamble’s Principal Place in Constitutional Law, 91 S. Cal. L. Rev. (Forthcoming), by John W. Welch and James Heilpern “argues that the Preamble to the Constitution of the United States of America deserves a place of primacy in constitutional law, in federal judicial decision-making, and in the nation’s civic discourse. The Preamble does more than set forth general, vague aspirations. It epitomizes the particular purposes behind the adoption of the Constitution that were desperately needed to repair and replace the faltering Articles of Confederation. The Preamble’s words were specifically and methodically chosen, both in the Preamble itself and often within the body of the Constitution. Based on their prompt affirmative vote, all members of the Constitutional Convention, which drafted the version of the Constitution that was submitted to the thirteen states for ratification, readily embraced the Preamble. Some delegates later stated explicitly that it should be used as the key to interpreting the Constitution, its meanings, intentions, purposes, and limitations. Indeed, it is doubtful that the Constitution would have been ratified without the text of the Preamble prominently standing at the top of the proposed document, and the Preamble occupied a dominant and valuable position at the head of constitutional analysis throughout the nineteenth century. In 1905, however, the United States Supreme Court decided the case of Jacobson v. Massachusetts. This case has been rarely discussed at any length and is only vaguely remembered. Perhaps somewhat unwittingly, the Court used language that has been understood to relegate the Preamble to a minor, insubstantial role: ‘Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.’ The Court then went on summarily to treat the Preamble as irrelevant to the case.”

Recommended. — Joe

What are the limits of legal automation?

From the abstract for Frank Pasquale’s A Rule of Persons, Not Machines: The Limits of Legal Automation, George Washington Law Review, Forthcoming:

For many legal futurists, attorneys’ work is a prime target for automation. They view the legal practice of most businesses as algorithmic: data (such as facts) are transformed into outputs (agreements or litigation stances) via application of set rules. These technophiles promote substituting computer code for contracts and descriptions of facts now written by humans. They point to early successes in legal automation as proof of concept. TurboTax has helped millions of Americans file taxes, and algorithms have taken over certain aspects of stock trading. Corporate efforts to “formalize legal code” may bring new efficiencies in areas of practice characterized by both legal and factual clarity.

However, legal automation can also elide or exclude important human values, necessary improvisations, and irreducibly deliberative governance. Due process, appeals, and narratively intelligible explanation from persons, for persons, depend on forms of communication that are not reducible to software. Language is constitutive of these aspects of law. To preserve accountability and a humane legal order, these reasons must be expressed in language by a responsible person. This basic requirement for legitimacy limits legal automation in several contexts, including corporate compliance, property recordation, and contracting. A robust and ethical legal profession respects the flexibility and subtlety of legal language as a prerequisite for a just and accountable social order. It ensures a rule of persons, not machines.

— Joe

How do administrative agencies interpret statutes? An empirical analysis

Here’s the abstract for Amy Semet’s very interesting article, An Empirical Examination of Agency Statutory Interpretation, ___ Minnesota Law Review ___ (Forthcoming 2018):

How do administrative agencies interpret statutes? Despite the theoretical treatment scholars offer on how agencies construe statutes, far less is known empirically about administrative statutory interpretation even though agencies play a critical role in interpreting statutes. This Article looks behind the black box of agency statutory interpretation to review how administrative agencies use canons and other tools of statutory interpretation to decide cases. Surveying over 7,000 cases heard by the National Labor Relations Board (“NLRB”) from 1993-2016, I analyze the statutory methodologies the Board uses in its decisions in order to uncover patterns of how the Board interprets statutes over time. Overall, I find no ideological coherence to statutory methodology. Board members switch between textualist or purposive methods depending upon the partisan outcome sought. Indeed, Board members often use statutory methodologies to dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on vague pronouncements of policy and less on precedent or legislative history. Moreover, despite scholars arguing that agencies should interpret statutes differently than courts, in practice, this study indicates that the NLRB interprets its governing statute in similar fashion to how courts do. After analyzing the empirical data, I set forth policy recommendations for how agencies should interpret statutes. The balance required—between policy coherence, stability and democratic accountability—is fundamentally different in the context of agency statutory interpretation than for interpretation by a judicial body. Rather than acting like a court, adjudicative agencies like the NLRB should leverage their expertise to arrive at an interpretation that best effectuates the purpose of the statute. For an agency like the NLRB that makes decisions almost exclusively through adjudication this may necessitate that the agency reveal its statutory interpretation in a more transparent fashion through rulemaking.

— Joe