Through RSS feeds and a well-organized iGoogle Home Page, I have learned about the coolest web based search tool: The Legal Language Explorer. This tool, in beta release, searches U.S. Supreme Court decisions from 1791 to 2005 for key words and phrases and then plots graphically the frequency of the word or phrase usage. It also provides a list of the cases, which can be easily and quickly accessed through hyperlinks. Although, any database search tool can provide a search list, a frequency graph is not a usual search engine tool.
Why is this so interesting and exciting? This kind of visual graphing of results gives the researcher, or really anybody interested, another layer of meaning to case law. The frequency of word/phrase usage can provide much different information than a traditional word search. Generally, it can highlight a case which may be most relevant to your interest or research as typically if the word/phrase is used frequently, the case will revolve around that issue. Specifically, if you are searching for frequency of a "turn of phrase" like the "living tree" doctrine, which has been used to describe American constitutional law interpretation, this kind of search will provide those cases or even the case, in which the term was most used and when.
What may this tell us? This may tell us that during a particular time period the Court relied heavily on this term to determine constitutional cases. It may tell us, which Justice most frequently uses the term to interpret and decide cases. It will allow us to compare why the Court does not use the term in other cases. Or why it does not use this term at all. This kind of legal research, using statistical methodology and practices in legal theory, is called Empirical Legal Theory, a fairly recent legal theory/research area. I find this a most welcome and intriguing area of legal research as it can provide a deeper meaning to legal constructs through analyses of legal bias, judicial decision making, and public opinion. The possibilities of such research touches all areas of justice and enriches our understanding of the law through different perspectives. For more information, I recommend starting with the blog I subscribe to: Empirical Legal Studies, administered by a group of academics, who write and research in the area.
Back to the Legal language Explorer. I searched for "living tree" and "living tree doctrine" and received no results, yet it is a recognized legal doctrine. However, when I searched for "living constitution", another phrase used for the same doctrine, I did receive some very interesting results. The graph produced three spikes: one case from 1963, one case from 1976, and one case from 1980.
The 1963 case, Gibson v. Florida Legislative Investigation Committee involved the Florida Legislature investigation of the N.A.A.C.P. or the National Association for the Advancement of Colored People for membership connections to "Communists." In some sense this case is the "perfect storm" of civil rights, involving discrimination of belief, race, and association. The ultimate decision in this case, reversing a lower Court decision, found such legislative intrusion was a violation of freedom of speech and association.
True, a fascinating case, but what is the significance of the search term, "living constitution"? It appears only once in the case, as a footnote referencing an academic article from the Harvard Law Review entitled Mr. Justice Black and The Living Constitution. Mr. Justice Black writes a brief concurring decision in this case and states:
In my view the constitutional right of association includes the privilege of any person to associate with Communists or anti-Communists, Socialists or anti-Socialists, or, for that matter, with people of all kinds of beliefs, popular or unpopular. I have expressed these views in many other cases and I adhere to them now.
But it is not Mr. Justice Black who refers to this Harvard review article but Mr. Justice Douglas, who writes a strongly worded concurring opinion. Although he does not directly quote from this article, he does say:
The need of a referee in our federal system has increased with the passage of time, not only in matters of commerce but in the field of civil rights as well. Today review of both federal and state action threatening individuals' rights is increasingly important if the Free Society envisioned by the Bill of Rights is to be our ideal. For in times of crisis, when ideologies clash, it is not easy to engender respect for the dignity of suspect minorities and for debate of unpopular issues.
This decision is as old as I am, 48 years, and yet the words written are as relevant and as significant today as it was then. And all of this from a legal language search!
There are other significant ideas and learning possibilities from this search but I will leave you to speculate and connect. So try this new search tool, either for your next deep research analysis or just for pure curiosity and joy of learning a new connection. You just might learn something new and interesting or even inspiring.
P.S. We need this search tool in Canada!!!