Carey on Modeling Contradictions in Judicial Precedent

Matthew Carey, Esq., of Thomson Reuters has published Holdings about holdings: Modeling contradictions in judicial precedent, forthcoming in Artificial Intelligence and Law.

Click here for a preprint of the article.

Here is the abstract:

This paper attempts to formalize the differences between two methods of analysis used by judicial opinions in common law jurisdictions to contradict holdings posited by earlier opinions: “disagreeing” with the holdings of the earlier opinions and “attributing” holdings to the prior opinions. The paper will demonstrate that it is necessary to model both methods of analysis differently to generate an accurate picture of the state of legal authority in hypothetical examples, as well as in an example based on Barry Friedman’s analysis of the “stealth overruling” of Miranda v. Arizona through subsequent judicial interpretations. Because the question of whether “disagreement” and “attribution” need to be modeled separately relates to contradictions rather than to subtler interactions between holdings such as “distinguishing,” it can be answered using the simple technique of modeling holdings as propositional variables and evaluating the holdings using truth tables.

Lachance on Internet dissemination of court decisions and Stare decisis

Colin Lachance, Esq., of CanLII has an interesting new post discussing how Internet dissemination of court decisions is increasing the influence of those decisions, and may have implications for the doctrine of Stare decisis: Disrupting Stare Decisis – a.k.a. I can has internets? Slaw.ca.

Here is an excerpt:

Throughout the internet age, and across multiple domains, we have seen many examples of disruptions to longstanding traditions and to once commonly-held beliefs of propriety. Can Stare Decisis withstand the onslaught of internet memes and widespread sharing of legal information?

The question comes to mind as I watch the growing awareness and discussion surrounding the January 2013 decision of R. v. McKay of the Provincial Court of Alberta in which the judge found that a 19 year old accused had been deprived of a reasonable opportunity to retain counsel because the police provided a phone and phonebook, but not the means to Google for help.

In less than 2 weeks, the decision accumulated over 1200 page views and the pace is increasing. To put the number in context, in 2012 it took a full 12 months for the combined page view count of the 2 most viewed decisions of the Provincial Court of Alberta to generate a roughly equivalent tally.

Lower court decisions matter a great deal – to the affected litigants – but rarely do they ripple through their home province, much less the country and beyond. [...]

For more details, please see the complete post.

HT @wiselaw

Horty and Bench-Capon on A Factor-based Definition of Precedential Constraint

Professor Dr. John F. Horty of the University of Maryland Institute for Advanced Computer Studies, and Professor Dr. Trevor J. M. Bench-Capon of the University of Liverpool Department of Computer Science, have published A factor-based definition of precedential constraint, Artificial Intelligence and Law, 20, 181-214.

Here is the abstract:

This paper describes one way in which a precise reason model of precedent could be developed, based on the general idea that courts are constrained to reach a decision that is consistent with the assessment of the balance of reasons made in relevant earlier decisions. The account provided here has the additional advantage of showing how this reason model can be reconciled with the traditional idea that precedential constraint involves rules, as long as these rules are taken to be defeasible. The account presented is firmly based on a body of work that has emerged in AI and Law. This work is discussed, and there is a particular discussion of approaches based on theory construction, and how that work relates to the model described in this paper.

Lupu & Voeten on The Role of Precedent at the European Court of Human Rights: A Network Analysis of Case Citations

Yonatan Lupu of the University of California, San Diego Department of Political Science and Professor Erik Voeten of the Georgetown University School of Foreign Service, have posted The Role of Precedent at the European Court of Human Rights: A Network Analysis of Case Citations. The authors presented the paper at the 2010 Political Networks Conference, held 19-21 May 2010 at the Duke University Department of Political Science in Durham, North Carolina, USA. Here is the abstract of the paper:

While political scientists have become increasingly interested in the output of international courts, they have paid little attention to the manner by which these courts justify their decisions and develop legal norms. We address these issues through a network analysis of European Court of Human Rights (ECtHR) citations. We argue that, like domestic review courts, the ECtHR uses its legal justifications at least in part to convince “lower” (domestic) courts of the legitimacy of its judgments. Several empirical observations are consistent with this view. First, country-specific factors do not determine the case-law on which the Court relies. Instead, it cites precedent based on the legal issues in the case. Second, the Court is more careful to embed judgments in its existing case law with respect to the more politically sensitive decisions. Third, the court embeds its judgments in case-law more when the respondent government is from a common law legal system where the courts traditionally rely more on similar justifications. In all, we conclude that the ECtHR by and large uses case law to justify its decisions in a way that is similar to domestic review courts. Finally, we highlight the utility of applying network analysis to further study the development of international legal norms.

Thanks to Professor Voeten for the URL of the paper.

Sloan on Informal En Banc Review & the Erosion of Stare Decisis in the Federal Courts of Appeals

Professor Amy E. Sloan of University of Baltimore School of Law has published The Dog that Didn’t Bark: Stealth Procedures and the Erosion of Stare Decisis in the Federal Courts of Appeals, forthcoming in Fordham Law Review. Here is the abstract:

“Informal en banc review is a procedural expedient that nine of the thirteen federal circuits use to circumvent the requirements of formal en banc review. Panels invoke informal en banc review to take actions normally reserved for the full court sitting en banc. The circuits that use informal en banc review say the procedure is to be used rarely. In practice, however, the frequency of informal en banc review is significant when compared with formal en banc review. Informal en banc review is more efficient than formal en banc review, but the efficiency benefits come at a price. Informal en banc review is used arbitrarily. Courts often hide informal en banc actions in footnotes, which diminishes the transparency of their actions and makes research difficult. Informal en banc review appears to be used disproportionately in criminal cases, and in all cases in which it is used, it deprives the parties of the opportunity to participate in the decisional process because it is an internal court procedure that panels invoke sua sponte. The procedure can also damage judicial collegiality by depriving minority-view judges of opportunities to present their views. Informal en banc opinions inject uncertainty into the system of precedent because their precedential status is unclear. Further, informal en banc review can result in poor decision making when changes to the law are based on incomplete information. This Article explores informal en banc review in depth, tracing its history and use. It then analyzes the advantages and disadvantages of informal en banc review and proposes procedures to ensure that it is used only on legitimate terms.”