Volume 88.2 (March 2021) 275–530

Articles

The Corpus and the Critics
Thomas R. Lee - Associate Chief Justice of the Utah Supreme Court and Distinguished Lecturer in Law at Brigham Young University J. Reuben Clark Law School, Lecturer on Law at Harvard Law School, and Lecturer in Law at The University of Chicago Law School.
Stephen C. Mouritsen - Shareholder at Parr Brown Gee & Loveless and Adjunct Professor at Brigham Young University J. Reuben Clark Law School.

Most any approach to interpretation of the language of law begins with a search for ordinary meaning. Increasingly, judges, scholars, and practitioners are highlighting shortcomings in our means for assessing such meaning. With this in mind, we have proposed the use of the tools of corpus linguistics to take up the task. Our proposals have gained traction but have also seen significant pushback.

The search for ordinary meaning poses a series of questions that are amenable to evaluation and analysis using evidence of language usage. And we have proposed to use the tools of corpus linguistics—tools for assessing patterns of language usage in large databases of naturally occurring language—to introduce transparent, falsifiable evidence on the questions at stake. Our critics raise a series of challenges, asserting that our methods test the wrong language community, pose notice problems, are inaccurate measures, and rest on certain fallacies.

We show that the criticisms are largely in error and ultimately highlight some of the main selling points of our proposed methods. We do so in reference to two canonical Supreme Court cases that have been discussed in the literature in this field (Muscarello v. United States and Taniguchi v. Kan Pacific Saipan, Ltd.) and also a more recent case (Mont v. United States). In analyzing these cases (particularly the most recent one), we also outline a framework for some proposed refinements to the methods we have advocated previously.

Competing Algorithms for Law: Sentencing, Admissions, and Employment
Saul Levmore - William B. Graham Distinguished Service Professor of Law, The University of Chicago Law School.
Frank Fagan - Associate Professor of Law, EDHEC Business School, France. 

Algorithms have found their way into courtrooms, college admission committees, and human resource departments. While defendants and other disappointed parties have challenged the use of algorithms on the basis of due process or similar objections, it should be expected that they will also challenge their accuracy and attempt to present algorithms of their own in order to contest the decisions of judges and other authorities. The problem with this approach is that people who can transparently see why they have been algorithmically denied rights or resources can manipulate an algorithm by retrofitting data. Demands for full algorithmic transparency by policy makers and legal scholars are therefore misguided. To overcome algorithmic manipulation, we present the novel solution of algorithmic competition. This approach, versions of which have been deployed in finance, would work well in law. We show how the state, a university, or an employer should set aside untested data in a lockbox. Parties to a decision then develop their respective algorithms and compete. The algorithm that performs best with the lockbox data wins. While this approach presents several complications that this Article discusses in detail, it is superior to full disclosure of data and algorithmic transparency.

The Missing Indian Affairs Clause
Lorianne Updike Toler - Olin Searle Fellow, Yale Law School’s Information Society Project.

Congressional plenary power over Native Americans sits in direct conflict with tribal sovereignty. Scholarship and case law justifying plenary power run the gamut from finding an expansive preconstitutional federal plenary power over Native Americans to narrowly reading the Indian Commerce Clause to limit congressional power to trade alone. All claim historical legitimacy, but none has been able to explain why the Indian Affairs Clause from the Articles of Confederation failed to appear in the Constitution or, conversely, why the new federal government never limited itself to regulating Indian trade. The combination of the unexplained textual shrinkage and disharmony between text and practice seems to suggest that the Framers made a mistake in drafting the Constitution.

Based on archival and forensic research, this Article concludes that the Constitution is missing an Indian Affairs Clause first by mistake, then by design. The five-member Committee of Detail, tasked by the Constitutional Convention with producing a working draft of the Constitution, seems to have accidentally omitted an Indian Affairs Clause. Inclusion of a congressional power over Indian trade and affairs was compelled by its long prehistory and a unanimous vote by the Convention, and John Rutledge as Committee chair directed James Wilson to include it in a marginal note. The evidence indicates that Wilson meant to comply with the command: not only was he personally motivated to comply, but he placed a check mark next to the Clause. However, he simply failed to include the power in his final draft. Thereafter, James Madison caught the mistake, and the Committee of Detail deigned to address its lapse by importing “Indian Tribes” into the Commerce Clause but refused to restore power over “Indian affairs,” converting an innocent mistake into a meaningful omission. None thereafter seemed to notice the disappearance of the Indian affairs power, and the omission has caused two centuries of confusion to the detriment of the tribes.

Essays

Classaction.gov
Amanda M. Rose - Professor of Law, Vanderbilt University Law School.

This Essay proposes the creation of a federally run class action website and supporting administration (collectively, Classaction.gov) that would both operate a comprehensive research database on class actions and assume many of the notice and claims-processing functions performed by class action claims administrators today. Classaction.gov would bring long-demanded transparency to class actions and, through forces of legitimization and coordination, would substantially increase the rate of consumer participation in class action settlements. It also holds the key to mitigating other problems in class action practice, such as the inefficiencies and potential abuses associated with multiforum litigation, the limited success of the Class Action Fairness Act’s notice requirement in spurring effective public oversight of class actions, and the potential for abuse inherent in cy pres settlement awards.