Blawg Review #302

March 14, 2011

in Legalese, News

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Blawg Review is a weekly roundup of juicy posts from around the law blogosphere. It is hosted on a rotating weekly basis by various law blogs from around the world.

This week’s Blawg Review is happening right here at pls clarify, so naturally we’ll focus on law and language. (Let’s start with the title, which will no doubt strike my non-lawyer readers as hilarious — yo dawg, read my blawg! Yes, insiders actually refer to law blogs as blawgs.)

On to the roundup.

Language of math, math of language

Today is Annual Pi Day, a holiday declared 23 years ago by the Exploratorium, a science museum in San Fran. (Happy Pi Day.) That would be pi, the infinite number that starts with 3.14 (get it? 3/14) and never ends.

What, you may ask, does pi have to do with law, language, or legal writing? Well, nothing, but also everything. Math — like law, writing, and grammar — is defined by structure, logic, and formulae. Mathematicians talk about the grammar and language of math, and linguists talk (and write books about) the mathematics of language. Deep stuff.

As it happens, the law-language-math link was front and center in two of last week’s most-blawged subjects. 

Computerized lawyers

First, John Markoff started a kerfuffle with his NY Times story on cutting-edge e-discovery software that’s better than high-priced human lawyers at reviewing mounds and megabytes of documents. In his March 4 article, entitled Armies of Expensive Lawyers, Replaced by Cheaper Software (membership required), Markoff promoted described powerful software that goes way beyond searching for keywords:

The [software] adds an inferential layer of analysis, mimicking the deductive powers of a human Sherlock Holmes. [The] software mine[s] documents for the activities and interactions of people — who did what when, and who talks to whom.

Clearwell’s software uses language analysis and a visual way of representing general concepts found in documents to make it possible for a single lawyer to do work that might have once required hundreds. 

Personally, I’m gaga for tools like these that visualize language. The images included in the Times piece are fascinating:

            

But needless to say, the big takeaway from this article is the terrifying notion that software is about to make lawyers obsolete. Yikes. Just when The AmLaw Daily reports that law firms are seeing signs of an economic rebound. And before we’ve had a chance to recover from Watson’s powerful demonstration of computers’ superiority at another trivia-intensive endeavor.

Not surprisingly, the NY Times piece generated a spike in Xanax prescriptions 245 comments, and caused a stir in legal circles. Fear not. Team Billable Hour Law got right to work explaining why the sky is not falling quite yet. On the e-Discovery Team blog, Ralph Losey drafted a careful post whose title says it all: NY Times Discovers e-Discovery, But Gets the Jobs Report Wrong. In Losey’s view, lawyers will be repurposed, not fired, when smart software is more fully incorporated into e-discovery. Across the pond, Chris Dale struck the same reassuring tone in this post from the U.K.-based e-Disclosure Information Project. (Is it me, or does disclosure sound far more elegant and dignified than discovery? Damn those Brits.)

 I enjoyed the wildly optimistic, almost quaint, response of The Digital Advantage:

The biggest misconception today is the notion that lawyers must understand and utilize advanced technology. This, I submit, does nothing but distract lawyers from what they have been hired to do — deliver legal advice. Lawyers should focus on discovering and presenting the facts. 

Let’s hope there’s some truth to that view.

My take on the story is two-fold: First, as a former big-law associate and current consultant to many big firms, I say Hallelujah! Let the machines sort through the bazillion megabytes of documents. Let the human lawyers do the engaging, analytical work.

Second, as a language lover, I am blown away by the recent explosion of tools that use math/computers to turn words into images, and to blur the boundary between the two. I’ve blogged about beautiful, computer-generated word trees; but even the good old-fashioned sentence diagram is a great example of this phenomenon. Behold this diagram of the preamble to the U.S. Constitution (from grammar.ccc.commnet.edu):

It’s a sentence, it’s an image, and it’s downright mathematical.

Anyway, all this sophisticated detective software might end up defeating itself. Corporate evildoers who unwittingly betray emotion in email can avoid detection by using Tone-Check, software that allows users to police their own emails for subtle indicators of snarkiness, anxiety, and negativity — before they go out. (I blogged about Tone-Check when it was featured in the NY Times Magazine 2010 Year in Ideas issue. It’s genius.)

SCOTUS and the corpus

The other recent story that relates to the law-language-math link is SCOTUS’s word-parsing decision in FCC vAT&T.  The ruling, in a nutshell: although a corporation is a “person” (thanks to Citizens United), it has no right to “personal privacy.” The upshot: AT&T doesn’t get to wield its “personal privacy” rights to block the release of unflattering documents. (A for effort though, AT&T!)

The majority opinion, written by Chief Justice Roberts, is true word-nerd heaven: he writes at length about adjectives, nouns, and the nuances of meaning. The gist of his reasoning is this: because corny doesn’t mean like corn, and crabby doesn’t mean like a crab, personal doesn’t mean connected to any entity that happens to be considered a “person” under a law

Here’s where the math comes in: as Ben Zimmer explains at The Atlantic.com, the Court relied on computerized linguistic data to reach its decision about the meaning of the word personal. Relying on an amicus brief drafted by lawyer-linguist-blawger Neal Goldfarb, the court looked “beyond the authority of the dictionary” to “a new type of language authority: the corpus.”

Zimmer explains:

A corpus is an enormous collection of texts that can be analyzed for usage patterns — “like Lexis on steroids,” Goldfarb explained to the Court, referring to the legal database that the Justices are all familiar with. Using corpora (that’s the plural) compiled by Mark Davies at Brigham Young University, Goldfarb pulled up the most common nouns that the adjective “personal” can modify: “personal life,” “personal experience,” “per­sonal relationship,” “personal problem,” and so forth (including the examples Roberts would cite in his opinion). He could even zero in on the most common combinations for a particular era — in this case the 1970s, when Congress enacted the the Freedom of Information Act exemption that AT&T was wrangling over.

This technology could play a serious role in the future of statutory interpretation. Here’s a glimpse, from The Atlantic.com:

Many blawgers, not to mention bloggers, have had their say about the AT&T opinion and its word-nerd author, Chief Justice Roberts. To name but a few:

  • Neal Goldfarb, on his blog LAWnLINGUISTICS, pointed to evidence that the Court relied on his amicus brief.
  • Garrett Epps wrote a deliciously creative article/post at The Atlantic.com, ultimately finding the opinion too focused on “picking apart words,” which is “not really the most important thing judges do.”
  • Michael Dorf, blogging at Dorf on Law, found the opinion “a bit too textualist for [his] taste.”
  • Neal Goldfarb responds that intensive textual analysis is not inherently “textualist,” and that getting the language issues right is always important in statutory interpretation. 

On becoming a prostitute

Precise word definitions were central in another eminently blawgable story, albeit a grittier one. The San Francisco Weekly reported on its crime blog that the California Supreme Court case heard oral argument recently on the linguistic and philosophical question of when one becomes a prostitute. Under state law, someone who encourages a person to become a prostitute is a panderer, or pimp. In defending Jomo Zambia against pandering charges, his attorney argued that he was not pandering when he tried to recruit an undercover cop posing as a working prostitute. Her linguistic logic: a pimp can’t encourage someone to become a prostitute if she already is one. As the author noted:

if a prostitute, by definition, always remains a prostitute under the law after she accepts money for sex, then Zambia wins. He didn’t make anybody “become” something she wasn’t already, as the logic goes.

Not surprisingly the story, provocatively titled ‘Pimp’ Is a Bitch to Define for California Supreme Courthas been bouncing around ever since. I love that the Supreme’s erudite decision shares common ground with this less lofty case, and that AT&T and (alleged) street pimp Jomo Zambia are pursuing similar legal strategies.

                     =        

 

These next two issues are not specific to legal writing, but I hereby deem them blawg-review-worthy. The first is about lawyers and their toys; the second is about plain old (non-legal) writing.

iWant to write off my iPad 2

The new iPad, released last Friday, is already a hit in the blawg world. Jeff Richardson, who writes the dauntingly thorough and authoritative iPhone J.D. blog, lauds the thinner, faster, easier-to-hold, more presentation-friendly, funner-for-whole-family iPad as the greatest thing since sliced beignet. His love letter post, written before the device was even released, is entitled Why lawyers will love the iPad 2.

(Here’s what I love: despite his obvious passion for all things Apple, iPhone J.D. has not yet reported on his experience of actually using the iPad 2, even though it was released last Friday, because … it’s Mardi Gras! This guy has the work-life balance thing down.)

The end of an era: NY Times turns off “On Language”

On plain old non-legal writing: The NY Times unceremoniously cancelled the Magazine’s On Language column after 30+ years. (I thought Ben Zimmer was doing a bang-up job filling the ginormous shoes of William Safire.) The response has been heartbroken and indignant. Go ahead, join the Facebook page, you know you want to: Keep “On Language” in the New York Times.

Legal writing roundup

Now back to my little corner of the blawgosphere: three last posts on legal writing.

FirstThe Legal Skills Prof Blog brings us this misery-loves-company report, based on a March 3 WSJ article: ”Like law schools, business schools are now under pressure from employers to improve the writing skills of their graduates.” The post quotes from the WSJ piece, colorfully titled Students Struggle for Words: Employers Place More Emphasis on Writing Amid Employer Complaints. As Legal Skills Prof notes:

It’s also interesting that even in this tech-heavy economy, the ability to communicate effectively through the written word is still so highly prized by employers.

Gen X, take note.

Second, Mark Herrmann’s regular Above the Law column, Inside Straight, ventures into legal writing, offering a few examples of good and bad introductions to briefs. Herrmann’s column is regularly treated to endless (mostly unwarranted) abuse from ATL’s mean-spirited regular commenters, so I am loath to say anything negative. But I can’t help mentioning that the comma in the title (Classic, Bad Introductions) needs to go: Classic Bad Introductions makes much more sense.

This third post relates not only to legal writing but also back to pi. (It’s an infinite loop.) Just as pi is an infinite number, some legal documents seem endless, at least to their unfortunate readers. The Seventh Circuit has recently made clear that pi-like briefs will not be tolerated.

Martha Nell of the ABA Journal reported, in a widely read article, that the court recently spanked a lawyer for exceeding the 14,000-word limit (by 4,000 words). (Nell hat-tipped How Appealing and Above the Law; I saw the story on the Law Librarian Blog.) The court wasn’t just blowing hot air: it summarily dismissed the lawyer’s appeal. In a scathing opinion written by none other than Judge Posner, the court derided the lawyer’s “rambling” writing and expressed disbelief at his claim that he “inadvertently” exceeded the limit. Ah, I love the smell of freshly brewed schadenfreude in the morning.

Ramble at your own risk.

Japan

In closing, I’ll touch on news that actually matters. Many blawgs, including the ABA Journal and The China Law Blog, have covered last week’s disaster in Japan. With the rest of the world, I pray that things don’t go way downhill from here. In case you’re wondering (I was), tsunami is in fact a Japanese word: it’s a combination of two words: tsu (harbor) and nami (wave). 

If you’re looking to help, Charity Navigator offers useful guidance on which organizations will make the best use of your donation.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

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