Monthly Archives: November 2011

Sorting Ohio Tax Claims, Due Process, and the Role of Data

I was recently reading a report issued by the Ohio Department of Taxation regarding ways to fix the backlog of cases experienced by the Board of Tax Appeals (the “BTA”) and it raised some thoughts about narrowly tailoring laws to fit goals and the potential role of data in decision-making. In short, Ohio cut funding to the BTA just when the economic downturn, the collapse in the housing market, and the rise in anti-tax sentiment conspired to give the BTA a record number of taxpayers appealing the valuation of their property (and therefore the amount of their property taxes) — smart move Ohio. The report attempts to offer solutions to this problem.

The report offers up a number of recommendations you might expect — such as the use of technology to be more efficient. My problem with the report is that its centerpiece solution is a “small claims” process for residential valuation appeals, which eliminates many due process protections (e.g., right to appeal, discovery, introduction of new evidence) in exchange for expediency. The report claims this is nothing new, citing the similar practice of treating claims differently based on a specific dollar amount (e.g., claims disputing less than $50,000) but the department is overlooking a very important difference.

I am not a due process expert but it would seem that a statute discriminating against taxpayers with smaller amounts in dispute is closely related to the goal of directing simple claims to a streamlined process (it assumes small amounts correlate to simple claims). However, discriminating against taxpayers with residential taxpayers in favor of commercial or industrial taxpayers is not as focused in that it makes the assumption that residential valuations claims are less complex (an assumption which I think is less well-grounded). For example, a taxpayer disputing a millions of dollars in valuation or a controversial new tax law will have less rights than a taxpayer with a commercial property who is disputing $5000 in valuation.

This is also an example where good legal data and metrics could aid in decision-making. Assuming a due process challenge was made and a court needed to decide which statutory method is a more closely tailored to to the government’s goal (i.e., sort claims by dollar amount or sort claims by property type), actual data showing what factor most closely correlates with complex legal issues would be enormously useful to the court. My own sense that dollar amount is a safer assumption is itself an assumption — I would rather see real statistical evidence to back this up.

Scholarly Citation Ranking in the Legal World

Lance Fortnow over @ the Computational Complexity blog had a post about a couple of minor items which mentioned that Google Scholar Citations is now open to all. This got me thinking about the application of these types of services to the legal field. Google Scholar Citations and other similar services (see Fortnow’s examples at Microsoft, ACM, and DBLP) track all the papers of academic authors, allowing users to see how well-published and influential someone is by how often they are cited. I always thought the legal field could use something like this both on the academic side in law reviews and journals but also on the judge side by tracking court opinions. I have been planning a project along these lines to test several ideas and apply some existing ideas in the context of legal data.

One of the main reasons I think the legal field would find this useful, besides another area in which lawyers could compete with one another, is that the in law often undue influence is given to the prestige of certain schools or law reviews, rather than the actual power or impact of their scholarship. While someone can complain about too much attention being given to someone’s work just because it was in the Harvard Law Review, there isn’t much of an alternative to general prestige without better tools to measure legal scholarship.

On the judge side, there have been studies and tools focused on citation networks (Shepard’s is the obvious classic example but other modern efforts have used automated systems to parse data and automatically identify the landmark cases on a particular topic for instance) but these generally have not been author-focused (i.e., as a way to assess or rank the judge as a legal scholar). Of course, one of the big difficulties is that the underlying data would have to distinguish between judges listed in a case and the judge(s) who actually authored the opinion. Although even that is a fiction in that federal judges, at least, often don’t write their own opinions (most opinions are written by clerks).

Despite the difficulties, Fortnow’s post got me thinking about this issue again.

Feedback on 21st Century Legal Informatics (Part 1)

Daniel Katz @ The Computational Legal Studies blog had a interesting post introducing the idea of 21st Century Legal Informatics (Part 1 in a series). I generally agree with his assessment that many concepts in the AI and law field have not had an impact because they have not fit into what he calls the existing library model of legal work (law is a field of humans interpreting words, words live on documents, and documents live in libraries). Katz offers a list of four principles with the goal of making improvements without trying to force radical change.

As someone working in the field of legal publishing, I have to admit that Katz’s observations are, if not obvious, built into the DNA of a commercial publisher (sometimes to their detriment). The same forces that keep legal publishers from moving quickly and boldly in the marketplace do exactly what Katz is recommending. For example, companies often rely on mechanisms like focus groups and market research to decide on new features and products — a mechanism that by definition will only arrive at changes that fit the existing library model. Katz does list one principle that publishers often fall very short on because it involves high commercial risk, aiming high and not letting the library model constrain you.

I am sure the solution is somewhere between blazing ahead with ideas before their time and the slow creeping pace of legal publishers, but I am still not sure how we get there? Commercial publishers have built-in incentives to proceed very slowly and academics and other researchers often focus on more dramatic dramatic change-generating concepts over concepts that offer incremental improvements. So, while I agree with the solution offered by Katz, I do not see the incentives in place that will create the right environment.

The “i” in Legal Information Retrieval by Christine Kirchberger

I recently read the paper The “i” in Legal Information Retrieval by Christine Kirchberger, Esq., LL.M., M.L.I.T., a junior lecturer and doctoral candidate at Stockholm University Department of Law‘s Swedish Law and Informatics Research Institute (IRI) The paper addresses the question of what is information from a legal information retrieval perspective. After reading the paper I had a few thoughts:

  1. seeking subparts. The think the author made a good point I had not considered sufficiently before — that we are used to thinking of users searching for relevant subparts of laws but not other legal documents, such as court opinions. This made me consider the need to apply keyword metadata to court opinions at the sub-document level (e.g., parts, paragraphs) as a way to allow more targeted searching.
  2. using subparts. I think the author, however, overstates the idea about treating subparts as independent. While users may seek out topics at the subpart level, in my experience they often still use them at the whole document level for proper context. For example, an attorney may seek out the subpart of a court decision which discusses an issue of law (e.g., the admissibility of a human factors expert in a product liability case) but will still need other parts of the same decision to argue that the cited case is not factually distinguishable (e.g., the case where the expert was previously admitted involved a product used by highly trained professionals).
  3. standardization is step one. Another issue I had with the paper was the author’s argument that standardization of metadata and citations is the first step toward an improved use of metadata for both searching and interpretation. I would agree this is true in theory but is nearly impossible from a practical perspective (especially in the U.S.). The author goes on to underestimate the difficulties in standardization — suggesting the content is well-prepared and that legal documents have had a well-developed structure for decades or even centuries. In my experience on the U.S. side, nothing could be further from the truth. The author suggests standardization should occur at the national or international level, but in the U.S. the federal government would have no authority to command the states to follow a national system (see the history of the SST project to get an idea how hard it is to get the states to agree to a voluntary standard).
  4. official metadata. The author makes another point that is good in theory but not practical by suggesting that the publisher should be responsible for metadata and that it should be considered official public information. In the U.S. example, courts focus on serving the parties to the litigation not the general public reuse of the information generated and, therefore, have little incentive to provide or standardize metadata beyond what is necessary to resolve the court action. Also, the fact that the official body, such as the court or legislature, does not act as the publisher and cannot control who or how the information is subsequently published makes the author’s suggestion impractical.
  5. networked system of rules. Lastly, the author suggests law could become a networked system of rule and concepts. However, the author’s understanding seems to make more sense in the context of a civil law system but not as much in common law systems (which is more a history-based system of rule by analogy). In many common law situations, the rule itself is often not clearly known to be stated as a rule.

Overall, I think the paper failed to take into account what is practical in the real world, rather than what theoretically makes sense. Without some understanding of what is practical, the paper is of limited value.

Future Vision for a MIT School of Law

Daniel Katz @ The Computational Legal Studies blog recently posted an interesting slide presentation on a proposal for what a 21st Century legal education program might look like. Katz sets up the presentation as a proposal for a MIT School of Law. Although it is an interesting topic and the slides will certainly get you thinking about the future of the the profession and how we might educate new professionals, the slides provide very few details. Katz, however, promises a paper will be coming soon on SSRN.

The Questionable Virtue of Simplicity

There was an interesting round of posts recently on statements by Republican nominee hopefuls Rick Perry and Herman Cain, both whom cited the number of words in the U.S. Tax Code as a problem. Rick Perry said the Code was about 3 million words, while Cain said it was 10 million words. An article in Slate tried to settle who was correct (in short, it is closer to 3 million but its about 9 million with the regulations included) but failed to address the more interesting question, does the number of words really matter? Clearly, Perry and Cain were implying that the number of words indicated that the Tax Code is overly complicated.

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