Eugene’s interesting post about the use of pop lyrics in judicial opinions and law reviews reminded me of something I wrote a long time ago (November 1995, to be precise). It was actually written in response to a suggestion made by none other than our own Eugene Volokh, who once had offhandedly remarked that it would be interesting to see what you could find in Lexis or Westlaw if you searched for pop lyrics . . . I was writing a monthly column for the American Lawyer, on Internet law, at the time, and seized on the idea. I reread it after seeing Eugene’s post, and, a bit to my surprise, think it’s held up pretty well, so here it is.
“Technolog! & (Meaning /3 Life)”
David G. Post, American Lawyer, November 1995
I assume that even the technophobes among my readers are familiar with online full-text searching for legal precedent, and would admit, however grudgingly, that this system represents at least something of an advance over previously-available methods, and that it has transformed legal practice (just as the development of the previously dominant method, the West Digest system, represented a profound advance over prior solutions to this information gathering problem and itself helped to transform American law).
If you do not actively partake of the pleasures on online searching, however, you may not be aware of the availability of a rather remarkable tool: “natural language” search engines which the commercial database providers (e.g., Lexis and Westlaw) have implemented in recent years. Natural language searching allows you to use, as your search query, an English sentence describing your problem, to which the search program applies a kind of “fuzzy logic” to determine the cases or other documents most likely to be relevant to your question (which are then presented to you in order of decreasing assumed relevance). For example, if you want to know “Does the Interstate Commerce Clause prohibit a State from imposing a ‘Use Tax’ on Out-of-State Purchases,” you simply type the phrase in as written, and your search retrieves a set of cases that the search algorithms has determined are most relevant to the question — in this example, cases such as Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, Associated Industries of Missouri v. Lohman, Director of Revenue of Missouri, 114 S. Ct. 1815, and the like.
But if this technology is so smart, I wondered, perhaps it can really help us plumb the darker, more mysterious, more inscrutable questions that have long pre-occupied philosophers and poets. Inspired by the recent fanfare surrounding the opening of the Rock and Roll Hall of Fame, I decided to put the technology to the ultimate test–to see if it could help us glimpse how the US Supreme Court has been grappling with the truly profound issues of our time.
For example, can we look to the Court for guidance in understanding “how many roads a man must walk down, before you call him a man?” Indeed we can. Running this search on the Supreme Court database using both Lexis’ “Freestyle” and Westlaw’s “Westlaw is Natural” features — and, as Dave Barry likes to say, I am not making this up — I realized that the Court has considered this question on a number of occasions. Lexis pointed me immediately to Dred Scott v. Sandford, 60 US 393, discerning in over 100 pages of dense legalese the true holding of the case: States cannot call certain men “men” irrespective of the number of roads they may have walked down. (Lexis also pointed me towards the Telephone Cases, 126 US 1, apparently interpreting my question as one asking whether the monopoly granted to AT&T impermissibly interferes with the right to actually “call” such a man a man).
(Interestingly, Westlaw directed me in a different, though equally fruitful, direction; the first case presented for my consideration was Terry v. Ohio, 392 US 1– a reference, of course, to its holding that the number of roads that a man may walk down is subject to limitations based upon the reasonable suspicions of law-enforcement personnel. Mr. Dylan, I would assume, will be gratified to learn that this question has been put to rest.
Emboldened by the success of this initial attempt, I decided to press on. Who, in fact, wrote the Book of Love? The Court’s teachings here are somewhat more controversial. The highest relevancy ranking on this query was obtained by A Book Named ‘John Cleland’s Memoirs of a Woman of Pleasure’ et al. v. Atty. General of Massachusetts, 383 US 413, an indication, perhaps, of both the Court’s rather narrow view of the meaning of “love,” and the precarious position of the Book of Love within the First Amendment. Book of Love authorship was also addressed in Ginzburg v. US, where the editor of Eros magazine was unsuccessful in his attempt to persuade the Court that his particular publication qualifies for Book of Love status.
But why, then, do fools fall in love? This question has apparently never been squarely presented to the Court, although cf. Jenkins v. Georgia, 418 US 153 (“community standards” should be applied to this question) and Shearson/American Express et al. V. McMahon, 482 US 220, 253 (at least as far as Securities Act is concerned, “Congress did not take away from the citizen ‘his inalienable right to make a fool of himself,’ it simply attempted to prevent others from making a fool of him,” quoting L. Loss, Fundamentals of Securities Regulation 36 (1983)).
Do you wanna dance under the moonlight? See Barnes v. Glen Theatre, Inc., 401 US 560 (holding that should you choose to engage in such activity, it will be considered expressive conduct “within the outer perimeters of the First Amendment”).
Is there a song in my heart? This unearthed a particularly interesting trove of material, from the obvious (Campbell v. Acuff-Rose, 114 S.CT.. 1164, the “2 Live Crew” case, holding that the fair use privilege may apply if the song in your heart is a parody of earlier copyrighted efforts) to the intriguing (Wallace v. Jaffree, 472 US 38, the “moment of silence” case, holding that if the song in your heart is of a religious character, the State may not, consistent with the Establishment Clause, require you to sing it, even to yourself), to the deeply mysterious (Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 115 S.CT.. 2338, holding [?] that the organizers of the St. Patrick’s Day parade may choose to prohibit the singing of certain songs but may not exclude individuals who hold particular songs exclusively in their heart).
And finally — entering the query “what is the meaning of life?” pulled up, appropriately enough, both Furman v. Georgia, 408 US 238 (holding the death penalty unconstitutional), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.CT.. 2791 (upholding the constitutional right to abortion) — which, when you think about it, may indeed represent the closest that the Court has ever come to thinking about this question (though whether the Court has answered the question, and what that answer might be, I leave for others to determine).
There may actually be serious issues lurking behind all of this: new forms of search technology undoubtedly, over time, influence the way the law develops and the way that it is understood, by bringing certain materials to the fore (and making other materials harder to unearth. The West Key Number system, for example, is an almost Platonic conception of ideal legal categories, and was at least partially self-perpetuating inasmuch as the decision to file a case under one category necessarily made it more likely that it would be cited as precedent for a one set of questions while simultaneously making whatever light it might shed on other legal questions — light that the indexers in Minneapolis may not have been able to detect — far harder to uncover. As natural language searching becomes more widespread, might we not want to know more about the underlying technologies, at least to enable us to assess the ability of these tools to find truly “relevant” material?
But let’s leave the serious questions for another day. For now, I hope it is enough to have given you ammunition the next time your teenager has the temerity to suggest that you are not working on anything really interesting or, like, really important.