Are we teaching what they will use?

Here at Stanford we haven’t shown our students Shepard’s in print in at least a decade.  And we have long since stopped using the digests in print as well.  So it was good to see these decisions validated in an article from the latest issue of Mississippi College Law Review, “Are We Teaching What They Will Use? Surveying Alumni to Assess Whether Skills Teaching Aligns with Alumni Practice,” by Sheila F. Miller.

The article wasn’t surprising to me, except the evident reluctance by law school alumni to use low-cost tools made available to them, namely Casemaker and Fastcase.

As can be seen from the frequency of usage chart, Lexis and Westlaw continue to be the most popular choices for online research. This finding is not significantly different depending on the size of firm, or year of graduation. This data is similar to a 2007 survey of Chicago lawyers in which 87% of attorneys surveyed who had practiced for zero to five years did “most” of their research in Lexis or Westlaw.   Casemaker provides free research for members of both the Ohio and Indiana Bar Associations. 43 Yet, only 16.9% of respondents used Casemaker often, very often, or always, and only 13.5% used it at least sometimes. This was a surprising number given the number of the respondents in small offices. In the follow-up interviews there was some criticism of Casemaker. For example, attorneys stated Casemaker is “too slow” and Casemaker is “not as easy as Westlaw, and I have an unlimited subscription for Ohio law.”

From Footnote #43:

Fastcase provides basically the same service for some other states, and we asked in the survey about Fastcase as well. The numbers were so low on Fastcase use that I did not include them in the tables of results.

Defining definitions

 

Here’s a new article by a law librarian about statutory definitions:

Price, Jeanne Frazier. “Wagging, not barking: statutory definitions,” 60 Cleveland State Law Review 999-1055 (2013).

And here’s its abstract:

 

 

Legislative text is distinguished by the frequency with which it specifies the meaning of the words it employs. More than 25,000 terms are defined in the United States Code alone. In few other contexts is there a perceived need to so carefully and repeatedly clarify meaning. This Article examines the roles played by definitions in a reader’s understanding and application of a legislative text; it demonstrates that the effects of defining are not as straightforward as we might assume. The discussion is framed by the distinction between legislation as a communication vehicle and as an instrument of governance. In some cases, definition serves predominantly a communicative purpose; it clarifies the speaker’s intent. But at other times the legislative definition empowers; it serves a performative function, investing groups of individuals or instances with rights or obligations. The Article suggests that a better understanding of the effect of definition on a reader’s interaction with a text, coupled with an appreciation of the different roles served by definition, will enable legislators to draft more useful definitions and enable interpreters to better apply those definitions.

 

PSSST . . . Wanna Buy a Law?

From the December 5 – December 11, 2011 issue of Bloomberg Businessweek:

Psst . . . Wanna Buy a Law?

“When a company needs a state bill passed, the American Legislative Exchange can get it done” p. 66

How the American Legislative Exchange Council turns a bill into many, many, many laws.

By Brendan Greeley and Alison Fitzgerald.

Illustrations by Luke Best

The American Legislative Exchange Council, a nonprofit based in Washington, brings together state legislators, companies, and advocacy groups to shape “model legislation.” The legislators then take these models back to their own states.  About 1,000 times a year, according to ALEC, a state legislator introduces a bill from its library of more than 800 models.  About 200 times a year, one of them becomes law.  The council, in essence, makes national policy, state by state.

How to Use Legislative History to Teach Grammar

Anyone teaching the importance of legislative history in legal research need only point to a single punctuation mark: the mighty comma.  As a disclaimer, I strive to put my years of Latin classes to good use, but do not profess to be punctuationally-perfect.  (Interestingly, the Romans did not use modern punctuation, but I digress…)   One thing I do know, however, is that other people’s grammatical shortcomings sure can wreak a lot of havoc… making them a great teaching tool.

This past week, I was researching a state statute that, among many other things, imposed conditions on persons who had committed a “felony or misdemeanor crime of domestic violence.”  At first blush, one would read this to mean that the conditions apply to persons involved in domestic violence felonies and misdemeanors.  Get this:  That provision actually governs anyone who commits either a “felony” or a “misdemeanor crime of domestic violence.”  In other words, we should really be reading a comma into the statute between “felony” and “misdemeanor” where the legislators neglected to put one!

Uncovering the latent comma was not easy.  News articles referred to the imposition of the conditions on felons, but without citing the supporting statutory clause.  Secondary sources referred to conditions emanating from the “domestic violence clause” of the statute, failing to illuminate that the clause also covers all felonies.  Case law cited the statute as creating certain conditions, but decided matters on other grounds.

The best recourse was to trace the historical progression of the clause, which I was able to do through older versions of the statute and the legislators’ own analysis.  Earlier iterations made no reference to domestic violence whatsoever, as the clause originally pertained to persons who had committed any felony.  Years later, the legislature added “or misdemeanor crime of domestic violence,” but failed to demarcate this clause with a comma that would have resolved ambiguity.  If the legislators had simply written “any felony, or misdemeanor crime of domestic violence,” I would have spent fifteen minutes on a project that instead took five hours!  (Note:  I do not require legislators to bold, italicize, or underscore the comma; any font or stylization will do!)

Do you have any grammar-related teachable moments you’d like to share?  We’d love to hear them and pass them along to our classes.  To that end, I particularly enjoyed Prof. Susan J. Hankin’s “Statutory Interpretation in the Age of Grammatical Permissiveness:  An Object Lesson for Teaching Why Grammar Matters,” which references recent literature on the subject and also offers some great case law examples to use in class.

“Statutory Interpretation in the Age of Grammatical Permissiveness: An Object Lesson for Teaching Why Grammar Matters”

“Statutory Interpretation in the Age of Grammatical Permissiveness: An Object Lesson for Teaching Why Grammar Matters”

Perspectives, Vol. 18, No. 2, Winter 2010
University of Maryland Legal Studies Research Paper No. 2009-52

SUSAN J. HANKIN, University of Maryland – School of Law

This article uses an unpublished case interpreting New York’s animal cruelty law as an object lesson to teach why grammar matters. In People v. Walsh, 2008 WL 724724 (N.Y. Crim. Ct. Jan. 3, 2008), the court’s interpretation of the statute turned, in part, on the serial comma rule (sometimes called the “Oxford comma” rule). The court followed a mandatory approach to interpret the statute’s meaning, even though most contemporary grammar and style books make such use of a comma optional. One of the many benefits of using a case example to teach why grammar matters is that it focuses students on the expectations of an important legal reader: the judge who may be using her own understanding of grammar rules to interpret language in a statute. The article explores what can happen when the legislators drafting statutes and the courts interpreting them may be operating on different sets of rules —  in this case, rules of grammar. It then uses this exploration to recommend ways of using the case and statute as a teaching tool to impress upon students, among other lessons, the importance of avoiding ambiguity in legal writing.

 

Source:  LSN Law & Rhetoric Vol. 3 No. 1,  01/04/2010

Digital Statutory Supplements for Legal Education

 

“Digital Statutory Supplements for Legal Education” 

 

C. STEVEN BRADFORD, University of Nebraska College of Law

MARK HAUTZINGER, affiliation not provided to SSRN

Law students spend hundreds of thousands of dollars each year on statute books or statutory supplements for their courses. These statutory supplements, notorious for their weight and bulkiness, are compilations of subject-specific statutes and regulations, most of which are publicly available at no charge. This article discusses the advantages of digital statute books, details how the authors created a digital statute book that was used in two securities regulation courses, and evaluates the result of that experiment.

 

Source:  LSN Law Educator: Courses, Materials & Teaching Vol. 5 No. 12, 06/19/2009

A Statute by Any Other (Non-Acronomial) Name Might Smell Less Like S.P.A.M., or, The Congress of the United States Grows Increasingly D.U.M.B

“A Statute by Any Other (Non-Acronomial) Name Might Smell Less Like S.P.A.M., or, The Congress of the United States Grows Increasingly D.U.M.B.”

Cleveland-Marshall Legal Studies Paper No. 08-151

CHRIS SAGERS, Cleveland State University – Cleveland-Marshall College of Law

While the question why we Americans name our statutes is rarely asked and not obvious, it turns out to be extremely interesting and, at least in the case discussed in this essay, illuminating. Namely, it appears to have occurred to someone on Capitol Hill that there is something to be gained by devising statute names that spell out clever acronyms. These things normally aim to be amusing or cute in some sense, and also usually serve some rhetorical purpose. A first surprise about them is their recent and shocking profusion. During the first two hundred years of the Republic there appear to have been perhaps two such statutes. In the twenty years since, there have been at least fifty-three.

But on closer examination the practice turns out to be not actually so amusing after all, and thinking about it is not just some trite diversion. This trend in its detail turns out to have something fairly sobering to say about the way our Congress has operated for some years now. It also has something to say about who our elected representatives are as people, how they see their responsibilities, and just how low their opinions of we their constituents really must be. The ugliest thing about it is that, with we Americans, this sort of thing works; American democracy, like the popular names of several recent statutes, is a joke that isn’t funny.

 

And I love footnote #2 from the article:  “Though librarians are paying attention, God bless ’em.  See Mary Whisner, What’s in a Statute’s Name?, 97 L. Lib. J. 169 (2005).

 

Source:  LSN Law & Rhetoric Vol. 2 No. 9,  02/03/2009