Watson Comes to Law

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The latest news from the world of technology suggests that advances in computation may disrupt the legal profession sooner and more broadly than I had thought. Students at the University of Toronto recently designed a new legal search tool, winning a competition for the best use of IBM’s newest computational resource, Watson.  Specially designed and programmed,  Watson challenged the best Jeopardy players in the world in 2011 – and won. IBM, however, was not aiming at world Jeopardy domination but at making money by invading other more lucrative domains. And it has already spun off a division to exploit Watson’s technology in fields as varied as medical diagnostics and aerospace engineering.

Wisely, IBM has also begun university competitions to interest students in designing new uses for Watson.  The result from Canada is Ross, an application  expressly designed for legal research.  Computerized legal research is itself nothing new, having begun over forty years ago.  Today, Lexis/Nexis and Westlaw are better known than any single law firm. But Ross has two advantages over the kind of computerized legal search most of us have known.

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The American Flag Is Particular, Exclusive, and Nationalistic. Not That There’s Anything Wrong with That.

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Broken clocks tell the right time twice daily. The academic Left does not stumble across the truth quite that often, but Matthew Guevara, a student in the University of California-Irvine’s School of Social Ecology—mission: “transformative research to alleviate social inequality and human suffering”—has. He put a resolution before a student-government committee to ban the American flag—okay, all flags, but still—as a particular, separating, and yet also a simultaneously homogenizing symbol that ought to be excluded in the name of inclusivity.

Conservatives were outraged. Multiculturalists, likely not recognizing this assault on the concept of culture, surely applauded. Lost in the din was that Guevara’s premise was right even if his conclusion wasn’t. Premise: The flag is particular and exclusive. That is the point of political identity. The font of wisdom flows as to the conclusion, namely: Not that there’s anything wrong with that.

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The Dangerous Weakness of Modern Progressivism

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Modern progressivism’s relatively weak legislative coalition explains much of the behavior of the Obama administration and the new threats it poses to our constitutional order.  As I discuss in an article just published in the City Journal, under FDR and even LBJ, the Democratic party had much more enduring power in Congress. Moreover, these administrations were not nearly so hamstrung as is the Obama administration by deficits and high government spending caused in no small measure by previous progressive experiments. Thus, previous progressive administrations could often be more forthright in the proclamation of their goals and rely on their large legislative majorities to enact and revise the central parts of their programs.

But the Obama administration needs to compensate for its relative weakness by misleading the public and exalting executive power even beyond the previous efforts of progressives.  For instance, the President’s repeated promise that you can keep your health care insurance and doctor was necessary to enact the Affordable Care Act, because in our more affluent society the great majority are happy with their health care.  As I note in the piece:

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Congressional Reforms of Excessive Executive Power: Can They Be Enacted?

Executive power has been growing.  Many people on the right have come to appreciate this growth over the last 6 years of the Obama Administration.  But the growth in recent years first began under George W. Bush.  In this area, Bush and Obama have more in common than not.

Can anything be done about this?  While it is possible that the courts could act to constrain the executive, the better way – in terms of effectiveness – would be if the Congress were to pass reforms of executive power.  But can Congress feasibly constrain the executive?  One question is whether Congress is willing to take such constraining action.  Another is whether Congress would have the power to take such action, given that the President has a veto over legislation.

If one looks at modern American history, there appear to be two situations where significant reforms of the existing power of the executive branch have been enacted. 

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Judging What?

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When judges interpret federal statutes, are they interpreting laws? What should be the obvious answer to this question is complicated by a recent book, Judging Statutes, by the Chief Judge of the United States Court of Appeals for the Second Circuit, Robert A. Katzmann. Judge Katzmann shows us how a well-informed judge approaches difficult questions of statutory interpretation. Along the way, he raises challenging questions about what contemporary statutes are.

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Obamacare Oral Argument: Still a Winner

The following post is written by Bill Levin, a friend and former colleague at the Office of Legal Counsel. Bill has been closely following the King v. Burwell litigation. For his previous posts, see here and here

How will the Supreme Court rule in King v. Burwell based on last Wednesday’s oral argument?

On Power Line, Paul Mirengoff judiciously concludes that the odds modestly favor the government: an implacable four-vote liberal bloc is potentially joined by a surprise vote from Justice Kennedy, on a theory of constitutional avoidance, plus the risk posed by Chief Justice Roberts, who said nothing one way or the other during oral argument to change the betting line.

An alternative view, argued here, is that oral argument justifies continued high optimism that the King plaintiffs prevail.

The key lies in the three-clerk hypothetical put by Justice Kagan to plaintiffs’ counsel, Michael Carvin:

JUSTICE KAGAN: [Can] I offer you a sort of simple daily life kind of example which I think is linguistically equivalent to what the sections here say that Justice Breyer was talking about? So I have three clerks, Mr. Carvin. Their names are Will and Elizabeth and Amanda. Okay? So my first clerk, I say, Will, I’d like you to write me a memo. And I say, Elizabeth, I want you to edit Will’s memo once he’s done. And then I say, Amanda, listen, if Will is too busy to write the memo, I want you to write such memo. Now, my question is: If Will is too busy to write the memo and Amanda has to write such memo, should Elizabeth edit the memo? (Laughter.)

While the exchange elicited a sharp laugh from the audience, it deserves serious post-argument comment for its wholly unfunny legal import.

What was Justice Kagan’s point in this far afield hypo, an exercise beloved of judges and the stuff of nightmares for practicing attorneys everywhere?

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Fusionism and Federalism

I spent the weekend at an excellent conference on the work of Frank S. Meyer, a leading post-war thinker of the right.  His major effort has generally been called fusionism –an attempt to marry classical liberalism and traditional conservatism. But he himself did not claim the term “fusionism”: that was a label others affixed.  He saw himself as revealing the complementary nature of liberty and tradition rather than creating a new alloy out of disparate materials.   For Meyer, liberty was the end of politics, and that fact could be apprehended by reason. But because of the constraints of human knowledge, traditions were important as  a guide for the appropriate realization of liberty. And traditions help men choose virtue when political freedom appropriately gives them that choice.

Besides its importance in reconciling liberty with tradition analytically, fusionism had and continues to have important political implications.

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To Make Men Thin

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‘Men,’ said Marx in his 18th Brumaire of Louis Napoleon, ‘make their own history, but they do not make just it as they please; they do not make it under self-selected circumstances, but under circumstances already existing, given and transmitted from the past.’ This is true, despite its provenance; indeed so obviously true that it is virtually a truism. For if it were otherwise, men would find themselves behaving in no circumstances at all, which is literally inconceivable. Circumstances are like the poor, only even more so: ye have circumstances with you always.

But it does not follow from the fact that men don’t make their history just as they please because they inherit particular circumstances (in part self-created, as our past always is) that they have no choice but to act as they do, any more than grammatical rules determine what people say. Those rules prohibit, or rather make meaningless, certain utterances, but there remain an infinite number of possible meaningful utterances.  

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Stan Evans, RIP

Stan Evans died this past week at the age of 80. Other, much closer friends have celebrated and will continue to celebrate his lasting contributions to the cause of liberty. I miss the man because he was never one for a conservative pity party; always willing and eager to go one more round; deeply serious and at the same time hilarious, at hard-to-match levels. Two memories stand out: A few years ago the Philadelphia Society invited me to give a talk on (what else?) federalism. What they didn’t tell me was that Stan would introduce me. So we sit down at…

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