On Thursday, the DOJ briefed congressional leaders and White House staffers on classified information about the FBI’s use of a confidential informant who met with Trump aides. The BBC reports the facts behind Trump’s conspiracy. — Joe
The New York Times reports that Harvey Weinstein turned himself in to New York City detectives and was arrested today on charges that he raped one woman and forced another to perform oral sex. Here is a Frontline documentary that examines the elaborate ways he and those around him tried to silence his accusers. — Joe
The complaint reportedly alleges abuses of power, denial of due process and unequal treatment and parallels claims in lawsuits by Florida Coastal School of Law and Charlotte School of Law. From the school’s press release:
Summit’s complaint claims the ABA denied the school due process as Summit sought, in good faith, to demonstrate its compliance with accreditation standards. It also alleges selective and disparate application of these standards in conjunction with disregard of material evidence. The complaint alleges further that the ABA targeted Summit under pressure from Department of Education (DOE) officials, who have since left the agency, to act against proprietary schools or risk losing its accreditation authority. These due process claims arise under the Fifth Amendment of the United States Constitution and are directly connected to the ABA’s decision to place the school on probation.
H/T to The Faculty Lounge post. — Joe
On Above the Law, Casetext CEO Jake Heller reports on research conducted by the company which uncovered that judges have a surprisingly consistent opinion of the work they see from litigators: they believe attorneys miss important cases often, and when they do, it has real consequences in the course of a litigation. Details here. — Joe
The New York Times is reporting that yesterday Facebook launched an archive of U.S. political ads that appear on the world’s largest social network, showing who paid for them and other details. From the Facebook press release:
We believe that increased transparency will lead to increased accountability and responsibility over time – not just for Facebook but advertisers as well. We’re investing heavily in more people and better technology to proactively identify abuse. But if you see an ad which you believe has political content and isn’t labeled, please report it. Tap the three dots at the top right-hand corner of the ad, select “report,” and then “it refers to a political candidate or issue.” Facebook will review the ad, and if it falls under our Political Advertising policy, we’ll take it down and add it to the archive. The advertiser will then be banned from running ads with political content until they complete our authorization process. And we’ll follow up to let you know what happened to the ad you reported. This is the tool that makes it easier for you to find problems, which we want. We invite you to report any ad so we get better, faster.
Here’s the link to the Political Ads Archive (FB login required). — Joe
From the ARL press release: “To help libraries consider what they need to do in response to the GDPR, the Association of Research Libraries (ARL) has published an issue brief on the topic by Anne T. Gilliland, scholarly communications officer for University Libraries at The University of North Carolina at Chapel Hill.”
H/T to Gary Price’s InfoDocket post. — Joe
Weekend reading: Messing with the Enemy: Surviving in a Social Media World of Hackers, Terrorists, Russians, and Fake News
Messing with the Enemy: Surviving in a Social Media World of Hackers, Terrorists, Russians, and Fake News (Harper, May 29, 2018) by Clint Watts: “A former FBI Special Agent, U.S. Army officer and leading cyber-security expert offers a devastating and essential look at the misinformation campaigns, fake news, and electronic espionage operations that have become the cutting edge of modern warfare—and how we can protect ourselves and our country against them. … Watts examines a range of social media platforms—from the first Internet forums to the current titans of Facebook, Twitter and LinkedIn—and nefarious actors—from al Qaeda to the Islamic State to the Russian social media troll farm—to illuminate exactly how they use Western social media for their nefarious purposes. He explains how he’s learned, through his successes and his failures, to engage with hackers, terrorists, and even the Russians—and how these interactions have generated methods for fighting back against those that seek to harm people on the Internet. He concludes with a snapshot of how advances in artificial intelligence will make future influence even more effective and dangerous to social media users and democratic governments worldwide. Shocking, funny, and eye-opening, Messing with the Enemy is a deeply urgent guide for living safe and smart in a super-connected world.” — Joe
A sitting president’s amenability to indictment and criminal prosecution: No caselaw for answering question but there are government memos that analyze the issue
You can read the following four memos and one brief that address a sitting president’s amenability to indictment and criminal prosecution here:
- September 1973 OLC memo (Nixon admin)
- October 1973 OSG memo (Nixon admin/Bork)
- February 1974 Watergate Special Prosecutor memo
- July 1974 Watergate Special Prosecutor SCt brief
- May 1998 OIC memo (Whitewater/Lewinsky investigation)
- October 2000 OLC memo (Clinton admin)
And for an analysis of them, see The Only Way to Find Out If the President Can Be Indicted, The Atlantic, May 23, 2018. — Joe
On May 25, 2018, Irish voters will vote on repealing Article 40.3.3 – known as the eighth amendment – which since 1983 has given unborn foetuses and pregnant women an equal right to life, in effect enshrining a ban on abortion in the country’s constitution. Following the controversy around Cambridge Analytica and its influence on the US presidential election and Brexit referendum, there has been concern that outside influence could swing the vote, in a country with just 3.2m eligible voters.
In May, Google announced a ban on all ads relating to the referendum and Facebook announced that it was blocking all foreign referendum advertising. However, Facebook is still a major factor in this campaign. In an attempt to build a picture of how both sides of the referendum are using Facebook to influence voters, the Transparency Initiative Referendum has been examining adverts, including boosted posts, that have appeared in the feeds of 600 Irish-based Facebook users. For a report on the study, see The Guardian’s How Facebook is influencing the Irish abortion referendum. — Joe
Two snips from David Frakt’s Admissions, Accreditation and the ABA: An Analysis of Recent Law School Lawsuits, The Faculty Lounge, May 23, 2018:
Recently, the ABA has been sued by Western Michigan University Thomas Cooley School of Law, and two InfiLaw schools: Florida Coastal School of Law and the defunct Charlotte School of Law. In addition, the ABA was named as a co-defendant along with InfiLaw and Charlotte School of Law in an amended complaint filed in a fraud lawsuit by a former Charlotte law professor and a Charlotte law student. These lawsuits allege that the ABA has failed in its duties as a law school accrediting agency in a variety of ways.
With any luck, these lawsuits will bring about changes to the ABA’s accreditation practices so that the accreditation process is more transparent, consistent and fair for all law schools. In the meantime, it will be interesting to see if the ABA continues to assertively enforce Standard 501(b) by taking action against other schools … or whether instead, the lawsuits cause the ABA to back off.
Recommended. — Joe
The General Data Protection Regulation (GDPR) is a regulation in EU law on data protection and privacy for all individuals within the European Union. It also addresses the export of personal data outside the EU. The GDPR aims primarily to give control to citizens and residents over their personal data and to simplify the regulatory environment for international business by unifying the regulation within the EU. It was adopted on April 14 2016, and after a two-year transition period, becomes enforceable on May 25 2018. Any company that stores or processes personal information about EU citizens within EU states must comply with the GDPR, even if they do not have a business presence within the EU.
What types of privacy data does the GDPR protect?
- Basic identity information such as name, address and ID numbers
- Web data such as location, IP address, cookie data and RFID tags
- Health and genetic data
- Biometric data
- Racial or ethnic data
- Political opinions
- Sexual orientation
Kelly LeBlanc’s Europe’s GDPR to Set New Standards in Data Protection and Privacy Law focuses on the GDPR’s over-arching purpose and mission, common misconceptions, and the road to compliance. Recommended. — Joe
A new study maps abortion facilities across the United States. The study found that 27 major cities are more than 100 miles from their nearest abortion provider and dubs areas in the South and Midwest as “abortion deserts.” For a summary, see this Mother Jones report.
H/T to Reproductive Rights Prof Blog. — Joe
Here’s the abstract for Nicole Schwartzberg’s What Is A ‘Recess’? : Recess Appointments and the Framers’ Understanding of Advice and Consent, 28 Journal of Law and Politics 231 (2013):
Article II, Section 2, Clause 3 of the U.S. Constitution (commonly referred to as the “Recess Appointments Clause”) confers upon the President the “Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” President Obama’s January 2012 recess appointments, made while the Senate attempted to block the President from making any recess appointments over the holiday break by holding “pro forma” sessions, raised new questions about the scope of the President’s power to avoid Senate confirmation. Can the Senate successfully prevent the President from making a recess appointment by convening every three days for sessions, even when no business is actually conducted?
Although a growing literature has sought to address this question, surprisingly little attention has been paid to the Framers’ intent when they incorporated the Recess Appointments Clause into our Constitution, in part due to the absence of legislative history accompanying the provision. This Article argues that while there is little direct evidence of the Framers’ intent concerning the Recess Appointments Clause, attending to adjacent provisions of the Constitution that require the Senate’s advice and consent, such as the Appointments Clause and the Treaty Clause, sheds light on the scope of unilateral power the Framers intended the clause to confer on the Executive Branch.
Examining the history of the Appointments Clause reveals that the Framers modeled the Senate’s role after the practice of advice and consent that existed in the Commonwealth of Massachusetts under British rule prior to the federal Constitutional Convention. That model prized an active role for the Senate in restraining the Executive Branch, and interpreted the Senate’s failure to act on Executive proposals as a valid rejection of those measures. Similarly, the Treaty Clause contemplated that the Senate would serve as a firm check on the President’s power to sign multilateral agreements. The history of these adjacent constitutional provisions, this Article argues, provides compelling evidence that the recent use of “pro forma” sessions is a constitutional method in the contemporary separation of powers arsenal for the Senate to preserve its right to reject a president’s nominees.
From the US District Court for the Southern District of New York’s holding in Knight First Amendment Institute v. Trump, 17-Civ-5205, May 23, 2018:
Turning to the merits of plaintiffs’ First Amendment claim, we hold that the speech in which they seek to engage is protected by the First Amendment and that the President and Scavino exert governmental control over certain aspects of the @realDonaldTrump account, including the interactive space of the tweets sent from the account. That interactive space is susceptible to analysis under the Supreme Court’s forum doctrines, and is properly characterized as a designated public forum. The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the President’s personal First Amendment interests.
Ars technica and the Washington Post report that Amazon is actively courting law-enforcement agencies to use a cloud-based facial-recognition service called Rekognition that can identify people in real time. Rekognition is already being used by the Orlando Police Department and the Washington County Sheriff’s Office in Oregon, according to documents the ACLU obtained under Freedom of Information requests. The ACLU and more than two dozen other civil rights organizations called on Amazon CEO Jeff Bezos to stop selling the face-recognition services to government agencies. — Joe
Compelling Presidential Compliance with a Judicial Subpoena (LSB10130, May 4, 2018): “Special Counsel Robert Mueller reportedly warned President Trump’s lawyers in a March meeting that if the President declined to participate in a voluntary interview, Mueller could issue a subpoena compelling the President’s testimony before a grand jury. The alleged exchange raises the question of whether a sitting President, consistent with the separation of powers and Article II of the Constitution, may be required to comply with a subpoena for his testimony as part of an ongoing criminal investigation.”
H/T to beSpacific. — Joe
According to Victoria Nourse, The Constitution and Legislative History, 17 University of Pennsylvania Journal of Constitutional Law 313 (2014), the answer is “no.” From the conclusion of Nourse’s article:
It is time to retire the all-or-nothing 1980s debate about the constitutionality of legislative history. These arguments have been generally ignored by the vast majority of judges and the Supreme Court. New developments in the theory of statutory interpretation, including decision process theory, help to sharpen the critique of legislative history but at the same time retire the constitutional questions as they have been posed. When applied to legislative rules and proceedings, the arguments against the constitutionality of legislative history, are not supported by the text, history or structure of the Constitution.
Here’s the abstract for Sergey Feldman, Kyle Lo and Waleed Ammar’s Citation Count Analysis for Papers with Preprints (May 14, 2018):
We explore the degree to which papers prepublished on arXiv garner more citations, in an attempt to paint a sharper picture of fairness issues related to prepublishing. A paper’s citation count is estimated using a negative-binomial generalized linear model (GLM) while observing a binary variable which indicates whether the paper has been prepublished. We control for author influence (via the authors’ h-index at the time of paper writing), publication venue, and overall time that paper has been available on arXiv. Our analysis only includes papers that were eventually accepted for publication at top-tier CS conferences, and were posted on arXiv either before or after the acceptance notification. We observe that papers submitted to arXiv before acceptance have, on average, 65\% more citations in the following year compared to papers submitted after. We note that this finding is not causal, and discuss possible next steps.
H/T to Gary Price’s InfoDocket post. — Joe