The Trump administration and the rule of law: Legal and ethical guidance for government lawyers

From the abstract of Cornell law prof W. Bradley Wendel’s Government Lawyers in the Trump Administration:

The words and actions of candidate, President-Elect, and now President Donald Trump indicate that this Administration will aggressively seek to use state power with little regard for the rule of law. A great deal has been written about the constitutional and administrative law regulating inter- and intra-branch separation of powers. However, there is no comprehensive legal and theoretical analysis of government lawyers as lawyers, subject to regulation by state rules of professional conduct and other positive legal standards. This Article engages with numerous contested issues in the law of lawyering to provide a constructive legal and ethical conception of government legal advisors. In practical terms, it may serve as a source of guidance for lawyers in the new administration, or as a roadmap for discipline by lawyer regulators. More theoretically, it defends a conception of the rule of law as a practice of reason-giving, not dependent upon legal objectivity or determinacy.

— Joe

S.J.Res. 34: Senate votes to undo broadband privacy rules that protect user data from their Internet providers

“Republican senators moved Thursday to dismantle landmark internet privacy protections for consumers in the first decisive strike against telecommunications and technology regulations created during the Obama administration, and a harbinger of further deregulation”, wrote Cecilia Kang in her  NYT story, Congress Moves to Strike Internet Privacy Rules From Obama Era (March 23, 2017). “The measure passed in a 50-to-48 vote largely along party lines. The House is expected to mirror the Senate’s action next week.”

The measure is S.J.Res. 34. Created on March 25th, a We the People petition calls for reinstating the privacy of customers of broadband and other telecom services because S.J.Res. 34 is expected to pass in the House and be signed by President Trump. — Joe

The Trump Bubble? Tracking Trump’s impact on your investments

From the Sentieo Blog’s post titled Introducing the Sentieo Trump Tracker: Follow The President’s Impact on Your Investments: “Today, we are excited to introduce the [Sentieo] Trump Tracker. It’s a bot that constantly scans new public financial documents for mentions of President Trump. These documents include all SEC filings, conference call transcripts, investor presentations, press releases, and more. The bot instantly surfaces new mentions of Trump as soon as they’re published, while intelligent queries automatically sort them into topics like Obamacare, Mexico, and NAFTA. … Anyone interested in following the administration’s impact on public companies can engage with the Trump Tracker by checking the dedicated website, following the @trumptrackerbot Twitter account, or signing up for a daily email alert on the site.” Will we call the stock market’s recent performance the “Trump Bubble”?

On a related note, Sentieo recently analyzed over 9 million financial documents of 35,000+ companies globally for mentions of Trump and Obama during their respective campaigns. Details here. — Joe

Ranking law schools by LSAT scores: The best and the worst

It should surprise no one that Cooley Law School was ranked last in the lowest median LSAT with a score of 142 this year (The 25th percentile LSAT score for Cooley was 139). But which law schools rank in the top 12 with the highest LSAT scores? See 12 Law Schools with the highest LSAT scores (US News The Short List Blog).

Which law schools do applicants with high LSAT scores favor? See A De Gustibus Approach to Ranking Law Schools by Christopher J. Ryan Jr. and Brian L. Frye. Here’s the abstract:

The U.S. News & World Report “Best Law Schools Rankings” define the market for legal education. Law schools compete to improve their standing in the rankings and fear any decline. But the U.S. News rankings incite contention, because they rely on factors that are poor proxies for quality like peer reputation and expenditures per student. While many alternative law school rankings exist, none have challenged the market dominance of the U.S. News rankings. Presumably the U.S. News rankings benefit from a first-mover advantage, other rankings fail to provide a clearly superior alternative, or some combination of the two.

This article assumes that the purpose of ranking law schools is to help students decide which school to attend. Accordingly, it describes an approach to ranking law schools based entirely on the revealed preferences of students. Law schools admit applicants based almost entirely on their LSAT score and undergraduate GPA, and compete to matriculate students with the highest possible scores. Our de gustibus approach to ranking law schools assumes that the “best” law schools are the most successful at matriculating those students. This article concludes with a “best law schools ranking” based exclusively on the LSAT scores and undergraduate GPAs of matriculating students.

— Joe

Ensuring President Trump “shall take care that the Laws be faithfully executed:” There’s a blog for that

Take Care, a blog monitoring Trump’s adherence to the law of the land under Article II of the Constitution, has been launched and is staffed by an impressive list of contributors that includes Larry Tribe, Erwin Chemerinsky and more than 20 former Supreme Court clerks and numerous former senior Executive Branch officials. Recommended. — Joe

Books Are Violent

Everybody knows that I like cartoons.  Here is an excerpt from The Amazing World Of Gumball that urges people to read books.  I think it’s a great  Friday Fun.  Enjoy.

Mark

The “Answer Company” wants my feedback because I’m a “valued customer”

So this morning’s email from the Land of 10,000 Invoices said, “Thomson Reuters is conducting a survey to gather your feedback as a valued customer.” OK, what the hell. Sometimes taking a vendor survey is revealing. From the survey’s first page display comes the first question:

Thank you for taking the time to participate in our survey. The survey is brief and should take around 5-7 minutes to complete. Your opinions will help us ensure that we are providing the best possible solutions and services.

What best describes your role?

Judge

Staff Attorney

Legal Adviser

Clerk of Court

Court Administrator/Court Manager

Courtroom Clerk

IT Specialist

Management Information Systems (MIS) Director

Other (please specify) ____________

And when I specified “Law Librarian” the response I received was “We thank you for your time spent taking this survey.  Your response has been recorded.” At least the survey took less than a minute. File this under “Friday Fun from Thomson Reuters.” I was pretty sure I wouldn’t get too deep into the survey because of the listed job titles. Can’t the “answer company” manage its email lists better for targeting surveys? — Joe

One last chance for Charlotte School of Law

Placed on probation by the ABA, losing its federal loan revenues, and losing much of its tuition paying student body as a consequence, Charlotte School of Law is on the verge of collapse if it doesn’t do something to overhaul itself. The private law school has announced plans to affiliate with a northeastern university, one not yet identified, and to go non-profit. From Wednesday’s NPR  program:

“MT: How would this work?

LW: The school’s new dean, Scott Broyles, says the plan is to partner with a university in the northeast. InfiLaw, the company who now owns Charlotte School of Law, wouldn’t make academic decisions, but, instead, deal with the school’s day-to-day operations.

MT: How much of a difference would this change make? Is it a smokescreen?

LW: It’s hard to say at this point. It’s not clear how that agreement between the non-profit board and InfiLaw would work, nor how much the school would pay InfiLaw. But the plan also calls for faculty to play a bigger role in making academic decisions, starting with admissions standards.”

“MT: Is this enough to persuade the Department of Education to begin cutting federal loan checks again to Charlotte School of Law?

LW: That remains to be seen. A letter from the Department of Education in January didn’t mention the option of re-instating federal loan money to the school back. It simply noted because the school hadn’t agreed to close, students wouldn’t have their federal loans forgiven. But Broyles [the new dean] says a few things have changed since then.”

See also the ABAJ article, Can for-profit InfiLaw schools be had on the cheap, and would they be worth it? because Sterling Partners may be unloading all three of its for-profit InfiLaw System law schools, including Charlotte School of Law. — Joe

Webinar: Principles and practices of machine learning

Machine learning explores the study and construction of algorithms that can learn from and make predictions on data. SAS data scientist Patrick Hall discusses the principles of machine learning, the multidisciplinary nature of data analysis and the traditional methods used in machine learning applications in this on-demand webinar. — Joe

Cincinnati Law dean gets the pink slip two years into her first five-year contract

After rumors started circulating about a faculty no-confidence vote, the end was in sight. See TaxProf Blog for a copy of the provost’s email to the law faculty about removing the Univ. of Cincinnati College of Law dean from her post and placing her on administrative leave. — Joe

Does Trump risk violating the Foreign Emoluments clause through his interests in the Trump Organization?

In his introduction to The Foreign Emoluments Clause and the Chief Executive, Iowa Law prof Andy Grewal writes “[t]he 2016 Presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. … Donald Trump’s successful election has ignited public and scholarly interest in the Foreign Emoluments Clause and, specifically, the meaning of the term ’emolument.’” Here’s the abstract:

This article, forthcoming in the Minnesota Law Review, extensively examines whether and to what extent President Trump risks violating the Foreign Emoluments Clause through his continued interests in the Trump Organization. Numerous legal authorities show that the clause is narrower than is commonly asserted, but that serious constitutional problems will arise if President Trump becomes entangled in the organization’s business activities.

— Joe

SCOTUS vacates and remands decision on IDEA educational standards by SCOTUS nominee during Senate confirmation hearings

I believe this is a first. From SCOTUSblog’s Thursday round-up by Edith Roberts:

In Endrew F. v. Douglas County School District, a unanimous court ruled that the Individuals with Disabilities Education Act requires a school to offer an “individualized education program” reasonably calculated to allow the student to progress in the child’s circumstances. Coverage of the decision comes from Emma Brown and Ann Marimow in The Washington Post, who report that the court “raised the bar for the educational benefits owed to millions of children with disabilities in one of the most significant special-education cases to reach the high court in decades.” In The Wall Street Journal, Jess Bravin reports that although “the specific decision overruled was decided in 2015, the phrase the justices rejected derives from a 2008 ruling by Judge Neil Gorsuch, President Donald Trump’s Supreme Court nominee, who had been defending that very decision at a Senate Judiciary Committee hearing when word of Chief Justice Roberts’s opinion reached the Hart Senate Office Building.

NPR reports “[w]hen questioned on his record, in light of this new ruling, during his hearing today by Texas Sen. John Cornyn, [Judge Gorsuch] said ‘I was wrong, senator, because I was bound by circuit precedent, and I’m sorry.'” — Joe

Can Congress inspect income tax returns without the taxpayer’s consent?

Apparently the answer is “yes” according to Univ. of Virginia law prof and former chief of staff of the Joint Committee on Taxation, George K. Yin. Yin writes

President Trump’s continuing refusal to release his tax returns despite the contrary common practice of presidents over the last 40 years has spurred interest in finding alternative ways to obtain the information. This article describes the authority of Congress, under section 6103(f)(1) and (4)(A), to obtain, inspect, and disclose the confidential tax information of any taxpayer, including the president, without the taxpayer’s consent. The authority may be exercised by any one of three tax committees: the House Ways and Means Committee, the Senate Finance Committee, and the Joint Committee on Taxation.

For details, see Yin’s article Congressional Authority to Obtain And Release Tax Returns, 154 Tax Notes 1013 (2017). Interesting. — Joe

Want to search an out-of-date version of the National Survey of State Laws? There’s a very expensive online legal search service for that!

Westlaw carries the full text of the sixth edition of the National Survey of State Laws online. Therein lies the problem. In addition to not stating online that the sixth edition has been superceded by the much more recent seventh edition (which Westlaw is going to publish online), the compiliers of the State Laws Survey have released two updates and four (or is it five?) new chapters that are not online. Bottom line: if you are using the National Survey of State Laws on Westlaw, you are searching eight-year-old topical state laws surveys. Make a note of that, researchers, at least until the seventh edition is online.

Time for the folks in the Land of 10,000 Invoices to get the seventh edition of this valuable resource uploaded and to keep it updated once it is. Perhaps Lexis or BNA can do a better publishing job for this title.– Joe

PS: A reader has commented that the seventh edition of the National Survey of State Laws is available, apparently since Jan. 12, 2016, on HeinOnline.

After yesterday’s news, it might be time to bone up on the impeachment process (again)

Key takeaways from the CRS report Impeachment and Removal (October 29, 2015, R44260) include:

The Constitution gives Congress the authority to impeach and remove the President, Vice President, and other federal “civil officers” upon a determination that such officers have engaged in treason, bribery, or other high crimes and misdemeanors.

A simple majority of the House is necessary to approve articles of impeachment.

If the Senate, by vote of a two-thirds majority, convicts the official on any article of impeachment, the result is removal from office and, at the Senate’s discretion, disqualification from holding future office.

The Constitution does not articulate who qualifies as a “civil officer.” Most impeachments have applied to federal judges. With regard to the executive branch, lesser functionaries—such as federal employees who belong to the civil service, do not exercise “significant authority,” and are not appointed by the President or an agency head—do not appear to be subject to impeachment. At the opposite end of the spectrum, it would appear that any official who qualifies as a principal officer, including a head of an agency such as a Secretary, Administrator, or Commissioner, is likely subject to impeachment.

Impeachable conduct does not appear to be limited to criminal behavior. Congress has identified three general types of conduct that constitute grounds for impeachment, although these categories should not be understood as exhaustive: (1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.

The House has impeached 19 individuals: 15 federal judges, one Senator, one Cabinet member, and two Presidents. The Senate has conducted 16 full impeachment trials. Of these, eight individuals—all federal judges—were convicted by the Senate.

— Joe

Has West Search sacrificed comprehensiveness?

As a quick follow-up to my earlier post titled 10,000 documents: Is there a flaw in West Search? (March 20, 2017), it appears that a West reference attorney has confirmed my conclusion that Westlaw does not offer as comprehensive a searching capability as Lexis.

In reading Mary Whisner’s (Reference librarian, Gallagher Law Library, University of Washington School of Law) research paper Comparing Case Law Retrievals, Mid-1990s and Today, Appendix B records an exchange between Whisner and a West reference attorney. Here’s the pertinent parts:

11/18/2016 01:14:35PM Agent (Anna Wiles): “Those searches seem to be maxing out.”

11/18/2016 01:14:51PM Agent (Anna Wiles): “Sometimes, the algorithm will cut off before 10,000.”

11/18/2016 01:23:26PM Agent (Anna Wiles): “If you run the search in all states and all federal, it will max out because it is a broad search.”

11/18/2016 01:23:53PM Agent (Anna Wiles): “If you narrow by a jurisdiction, the results will not max out.”

But Whisner was attempting to perform a fairly comprehensive search. Note that West Search sometimes will max out at under 10,000 documents too according to the West staffer.

More evidence that in an attempt to find the Holy Grail of legal research —  the uber precise search result — West Search may have sacrificed comprehensiveness. — Joe

What have we learned from the Web so far?

“For a researcher in the twenty-second century, it will seem unimaginable that someone studying the twenty-first century would do anything but draw heavily on the online world to tell them about peoples’ changing lives. Currently, however, the web remains an almost untapped source for research. This book aims to make a start in this direction,” write Niels Brugger and Ralph Schroeder in the Introduction to their compilation titled  The Web as History (UCL Press, 2017). Here’s the blurb:

The World Wide Web has now been in use for more than 20 years. From early browsers to today’s principal source of information, entertainment and much else, the Web is an integral part of our daily lives, to the extent that some people believe ‘if it’s not online, it doesn’t exist.’ While this statement is not entirely true, it is becoming increasingly accurate, and reflects the Web’s role as an indispensable treasure trove. It is curious, therefore, that historians and social scientists have thus far made little use of the Web to investigate historical patterns of culture and society, despite making good use of letters, novels, newspapers, radio and television programmes, and other pre-digital artefacts.

This volume argues that now is the time to question what we have learnt from the Web so far. The 12 chapters explore this topic from a number of interdisciplinary angles – through histories of national web spaces and case studies of different government and media domains – as well as an introduction that provides an overview of this exciting new area of research.

An open access PDF version of the book is available here. Recommended. — Joe

10,000 documents: Is there a flaw in West Search?

10,000 documents is an awful lot. Truly a low precision, high recall search. But sometimes, one starts off searching very broadly because Westlaw and Lexis Advance provide a “search within results” option to narrow down initial search output. While I do not perform many broad searches in Westlaw, I have never once seen a figure higher than 10,000 documents in my search results. I have, however, seen “10,000+” documents in equally broad Lexis Advance searches on the same topic.  Unfortunately 10,000 documents appears to be a search results limit in Westlaw.

If an initial search pulls up 10,000 documents in Westlaw, there is no reason to believe all Westlaw documents identified by one’s search are really all the potentially relevant documents in the Westlaw database. Searching within the initial 10,000 documents search results would be, therefore, based on a seriously flawed subset of the Westlaw database, one defined by West Search, not one’s search logic. This is not the case in Lexis Advance where a broad search may yield 10,000+ documents for searching within initial results. If this is indeed a flaw in West Search’s output, one must conclude that Lexis Advance offers more comprehensive searching of its database than Westlaw. — Joe

Gorsuch confirmation hearings gear up: “Find as much information about the new Supreme Court nominee as possible.”

“The idea for the Gorsuch Project was born after law librarians from several universities and government offices faced a similar question from their patrons: ‘Find as much information about the new Supreme Court nominee as possible.'” — From the Gorsuch Project.

The Gorsuch project “is the result of the collaborative efforts of several libraries to research and collect a comprehensive set of materials relating to the Hon. Neil Gorsuch’s career on the 10th Circuit Court of Appeals. Majority opinions, dissents, and concurrences authored or joined by Gorsuch and references to his published work and speeches are presented here.” The academic law libraries involved are located at the Univ. of Illinois College of Law, the Univ. of Richmond School of Law, the Univ. of Virginia School of Law (host site of the Project), plus the Free Law Project and the US Railroad Retirement Board contributed to the project.

See also Neil M. Gorsuch a Law Library of Congress bibliography that was last updated February 2, 2017.

H/T to Michel-Adrien Sheppard’s Slaw post. — Joe

Help! New HeinOnline Knowledge Base launched

Here. See also Bonnie Hein’s blog post. — Joe