Google Search Can Find Anything…Except The Law
How judges make it difficult for us to know the law
Google recently became the largest jobs board. Just like that. When you have access to everything on the Web and you have excellent tools for searching the Web, you can find anything. Add some structure, and you become the biggest and best. Google is just about the biggest and best when it comes to search.
Lawyers like to qualify everything, so you may think I added “just about” out of lawyerly caution. I didn’t. I added it because Google goes bust when we ask it to search for the law.
I was a litigator in one of my prior lives. As a junior litigator, I had the pleasure of running to court for temporary restraining orders. A TRO is a form of extraordinary relief — you can get a TRO even when the other party is not in court, as long as you have given them adequate notice. Judges are reluctant to grant them, for obvious reasons.
The first step in getting a TRO is knowing the standard for getting a TRO. This is a basic research question and the answer is simple, but varies from jurisdiction to jurisdiction. For example, the standard for a TRO in your local federal court may be different than the standard in your local state court.
I am in Michigan, so I asked Google “what is the standard for a temporary restraining order in Michigan?” Any law school graduate could give you the answer in under 10 minutes. Google flunked (Google Scholar was worse).
It gave me an article about civil restraining orders (something you might seek to protect you from an abusive partner), several pleadings that mentioned temporary restraining orders, and some old articles discussing TROs.
Why is it so difficult for Google to answer this question? Legal research is difficult for many reasons. Even the Big 3 (Fastcase, LexisNexis, Westlaw) have a difficult-to-close gap between what we want and what they can do. I’m going to focus on one reason you may have suspected, but no one talks about: judges.
Judges And The Legal Research Barrier
Justice Elena Kagan and Chief Justice Roberts have received praise for their writing styles. Ross Guberman, author of the blog Legal Writing Pro once said:
Both Roberts and Kagan write in the finest traditions of the Solicitor General’s Office, where Roberts once worked as Deputy and which Kagan now leads. In case after case, that office produces some of the best legal writing in the nation, attaining that rare combination of surgically precise argument and brisk, fresh prose.
Justice Kagan’s writing skills went with her to the Supreme Court. We would think that those selected for the Court would all have superb writing skills. Being on the Court is the apex of one’s career as a lawyer and by the time they ascend to the Court, Justices have had decades of writing experience.
Sadly, for those who must plow through the opinions and apply the law, legal writing misses the mark. As entertaining as it may be to read an opinion by the late Justice Scalia, it is painful to find the law in the prose.
This judicial barrier to finding the law exists, as you might expect, at all levels of federal and state courts. Supreme Court Justices are fun to pick on, but not members of a unique club.
At this point, we could dive into the many ways judges muck up the works. Fun, but not productive. The simple fact is that judicial opinions are, collectively, the psychedelic swirls in a Jackson Pollock painting. Each decision represents a splatter somewhere on the canvas. Up close, we can separate, if not make sense, of the splatters. Step back, and you hope the splatters together make a picture.
Extracting from the picture a set of rules that explains the yellow, orange, green, and black dots and swirls has befuddled scientists and lawyers. You must find the reasoning, the rule, and separate them from the facts. Then you must find a way to sort out how the reasoning supports the rule. And then, of course, apply the rule to the facts.
Look at a case highlighted by a first-year law student and you will see something that resembles the Pollock painting (a bit more pink and blue in the student’s work, but that is a function of highlighter colors).
Remember, then, that AI in law is not solving the argument analysis challenge. AI will not untangle the parts of the case and put them together in a structured presentation. AI certainly will not sort out “Footnote Four” of United States v. Carolene Products Company. AI will find Carolene Products Company (on a good dat). Footnote Four is still your problem.
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About: Ken is a speaker and author on innovation, leadership, and on the future of people, process, and technology. On Medium, he is a “Top 50” author on innovation, leadership, and artificial intelligence. You can follow him on Twitter, connect with him on LinkedIn, and follow him on Facebook.