Reporting for The Street, Kinsey Grant reports that Facebook is preparing to monetize its Instant Articles: “Instant Articles hosts news pieces on Facebook’s mobile app. Instead of operating a subscription service itself to get users on the Instant Articles, Facebook is said to be implementing a paywall after 10 articles on the app. Once a user hits 10 pieces from a particular publisher in a month, Facebook will send him or her to the publisher’s site to sign up for a subscription.” — Joe
Sanctuary jurisdictions will only receive DOJ criminal justice grant funds if cities and states cooperate in detaining undocumented immigrants
On July 25, 2017, the DOJ announced that it will no longer award criminal justice grants to cities and states that refuse to cooperate with federal agents in detaining undocumented immigrants. Here’s the text of the press release:
The Department of Justice today posted a solicitation for the Edward Byrne Memorial Justice Assistance Grant Programs (“Byrne JAG”). Recipients for FY 2017 will be notified of new conditions of their grants that will increase information sharing between federal, state, and local law enforcement, ensuring that federal immigration authorities have the information they need to enforce immigration laws and keep our communities safe.
“So-called ‘sanctuary’ policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes,” Attorney General Jeff Sessions said. “These policies also encourage illegal immigration and even human trafficking by perpetuating the lie that in certain cities, illegal aliens can live outside the law. This can have tragic consequences, like the 10 deaths we saw in San Antonio this weekend. As part of accomplishing the Department of Justice’s top priority of reducing violent crime, we must encourage these ‘sanctuary’ jurisdictions to change their policies and partner with federal law enforcement to remove criminals. From now on, the Department will only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities. This is consistent with long-established cooperative principles among law enforcement agencies. This is what the American people should be able to expect from their cities and states, and these long overdue requirements will help us take down MS-13 and other violent transnational gangs, and make our country safer.”
The DOJ policy will take effect in FY 2017. — Joe
BuzzFeed’s Dominic Holden is reporting that the DOJ filed an amicus brief in Zarda v. Altitude Express, No. 15-3775, at the US Court of Appeals for the Second Circuit that argues that Title VII of Civil Rights Act of 1964 does not cover sexual orientation and only applies if men and women are treated unequally. Details and the text of the DOJ brief at The Justice Department Just Argued Against Gay Rights In A Major Federal Case. — Joe
In a recent Brookings white paper, several legal scholars took an in-depth look at the Foreign Emoluments Clause and the constitutional violations that result from President Trump’s continuing acceptance of benefits from foreign powers. This white paper, The Domestic Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump, takes a similar look at the Domestic Emoluments Clause, discussing the text and history of the Clause, how it should be interpreted, and what it means in the context of President Trump’s vast business holdings.
Based on this examination, the Constitutional Accountability Center concludes that President Trump is likely violating one of the Constitution’s most important provisions—a safeguard designed to prevent corruption and self-dealing in our highest office. And that should not be allowed to continue. — Joe
In a recent 3 Geeks post Greg Lambert promotes the use of law library ChatBots to answer routine patron service questions from library users like “what’s my password?” See Now I Want a ChatBot. Not a bad idea as long as law library ChatBots are required to join AALL (and pay the cost of full membership). 😉 — Joe
Google has retired the instant search feature it introduced in 2010 where search results will populate a page as a user typed. No more. The reason for this is that 50% of searches are on mobile devices where the feature makes no sense. I wonder if anyone will notice. More details are at The Verge and Search Engine Land. —Mark
In light of President Trump’s recent threat to ban transgender individuals from serving in the military, perhaps someone will have the courage to give him this featured CRS report. Granted, Trump is not known for reading anything more substantial that a one page bullet-pointed sheet of paper but … .
Here’s the opening paragraph to Diversity, Inclusion, and Equal Opportunity in the Armed Services: Background and Issues for Congress (Oct. 13, 2016, R44321):
Diversity, inclusion, and equal opportunity are three terms that are often used interchangeably; however, there are some differences in how they are interpreted and applied between the Department of Defense (DOD) and civilian organizations. DOD’s definitions of diversity and equal opportunity have changed over time, as have its policies toward inclusion of various demographic groups. These changes have often paralleled social and legal change in the civilian sector. The gradual integration of previously excluded groups into the military has been ongoing since the 19th century. However, in the past few decades there have been rapid changes to certain laws and policies regarding diversity, inclusion, and equal opportunity in the Armed Forces. Since 2009, DOD policy changes and congressional actions have allowed individuals who are gay to serve openly, recognized their same-sex spouses as dependents for the purpose of military benefits, opened all combat assignments to women. On June 30, 2016, DOD announced the end of restrictions on service for transgender troops.
Here’s the abstract for Jamie Baker’s 2017 A Legal Research Odyssey: Artificial Intelligence as Disruptor:
Cognitive computing is revolutionizing finance through the ability to combine structured and unstructured data and provide precise market analysis. It is also revolutionizing medicine by providing well-informed options for diagnoses. Analogously, ROSS, a progeny of IBM’s Watson, is set to revolutionize the legal field by bringing cognitive computing to legal research. While ROSS is currently being touted as possessing the requisite sophistication to perform effortless legal research, there is a real danger in a technology like ROSS causing premature disruption. As in medicine and finance, cognitive computing has the power to make legal research more efficient. But the technology is not ready to replace the need for law students to learn sound legal research process and strategy. When done properly, legal research is a highly creative skill that requires a deep level of analysis. Law librarians must infuse law students with an understanding of legal research process, as well as instruct on the practical aspects of using artificial intelligence responsibly in the face of algorithmic transparency, the duty of technology competence, malpractice pitfalls, and the unauthorized practice of law.
From the introduction of the Sunlight Foundation’s On Trump, transparency and democracy (July 20, 2017):
Over the first six months of this young presidency, President Donald J. Trump’s approach to the office has been characterized by self-interest, defiance of basic democratic norms, and often incoherent or self-contradictory communications and priorities.
In the face of historic lows in public trust in government and an increasingly polarized electorate, we’ve seen a regression to secrecy in both Congress and the White House. The change has not gone unnoticed around the globe, as our nation’s standing to defend democracy and our government’s ability to advocate for anti-corruption efforts has been precipitously eroded.
In this report, we offer a comprehensive but not exhaustive accounting of the Trump administration’s record on open government to date. More than seven months after we first considered what Trump would mean for open government, the questions we sent to the White House were never formally answered. The actions of this administration, however, speak for themselves.
Whatever transparency the President of the United States is demonstrating by speaking directly to the public on Twitter is outweighed by his refusal to disclose and divest, undermined by the opacity of their authorship, and weighted down by false claims and misleading assertions. This president publicly accused his predecessor of wiretapping his campaign with no evidence. If that’s transparency, the word itself has been devalued.
Our conclusion on the Trump administration’s record on open government at six months is inescapable: this is a secretive administration, allergic to transparency, ethically compromised, and hostile to the essential role that journalism plays in a democracy.
H/T to beSpacific. Recommended. — Joe
Microsoft responded to the negative reaction to deprecating Paint. The news is that Paint will become a downloadable app in the Store. Cue the sighs of relief from those into computer nostalgia.
The other interesting news in Tech is the Adobe announcement that the company will finally end support for Flash on December 31, 2020. Adobe will stop distribution of the Flash player at that point. Developers are encouraged to migrate to open formats such as HTML5, Web GL, and WebAssembly. There is a good analysis for what this all means for consumers and developers at the CNET news site. —Mark
Hat tip to Gary Price’s InfoDocket post for this BBC report. — Joe
Here’s the abstract for Scott Howe’s The Prospect of a President Incarcerated, 2 NEXUS 86 (1997):
This article addresses the thorny question of whether a President can be criminally prosecuted while in office or whether prosecution must await his or her departure. The piece appeared as part of a symposium of articles that focused on that issue. The authors of the other articles were Akhil Reed Amar, Brian C. Kalt, Erwin Chemerinsky, Terry Eastland, Jay S. Bybee and Eric Freedman. The conclusions of the various authors made clear that scholars are divided over whether Section 3 of Article I implies that impeachment must precede any criminal prosecution and over whether the articulation of presidential power in Article II, Section 1, combined with the doctrine of separation of powers, implies a presidential immunity from prosecution. In this article, I argue that the Constitution is not appropriately read to provide a sitting President with any temporary immunity from criminal prosecution. However, I also argue that policy arguments favor such an immunity as a matter of federal common law in the absence of Congressional action on the problem. I also argue that this common law immunity should apply to the Vice President, but not to the President’s spouse, and should extend to civil as well as criminal cases. My conclusion that the judiciary could ground immunity on its power to articulate federal common law implies as well that Congress could dominate the field in the first instance or in response to a judicial ruling.
This Wikipedia entry lists the identities of notable pardons by each president from George Washington to Donald Trump. — Joe
The Internet is abuzz with the news that Microsoft is deprecating the Paint program in the Fall Creators Update. There are a spate of articles of the “say it aint so” variety on various sites, including Slate, Gizmodo, and PCWorld, among others. Deprecated in this context means that Paint is no longer in active development. Microsoft appears to be pushing Paint 3D as the alternative. That app is available in the Microsoft Store if anyone wants to try it out.
More news in the announcement includes the removal of the 3D Builder app that Microsoft pushed in the last Windows 10 updates and the removal of the Outlook Express code lurking on the code base. I thought Microsoft would have done that years ago with the introduction of the Mail app.
Jeffrey Crouch’s The Presidential Pardon Power (UKansas, 2009) is the “first book-length treatment of presidential pardons in twenty years updates the clemency controversy to consider its more recent uses-or misuses. Blending history, law, and politics into a seamless narrative, Jeffrey Crouch provides a close look at the application and scrutiny of this power. His book is a virtual primer on the subject, covering all facets from its background in English law to current applications.” — Joe
Texas Southern University Thurgood Marshall School of Law has been publicly censured by the ABA’s Section of Legal Education and Admissions to the Bar after gender discrimination allegations from a female associate dean. Also, the ABA section found that the law school was out of compliance with standards involving admissions, education programs, academic advising and equal opportunity. Here’s the ABAJ story. — Joe
A newly disclosed legal memo from the office of Kenneth Starr, the independent counsel who investigated President Clinton, challenges the long-held opinion that presidents are immune from indictment while they are in office. The memo was made public in response to a NYT’s FOIA request. See also Charles Savage’s Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes (July 22, 2017). — Joe
This note, published in the Yale Law Journal in 1996-97, answers in the negative. Here’s the abstract for Brian Kalt’s Pardon Me?: The Constitutional Case Against Presidential Self-Pardons:
Can a president pardon himself? President Nixon thought so, and seriously considered it, and the specter of a self-pardon has been raised several times since then. But the answer is unclear.
This note makes the case against the validity of self-pardons, using arguments from the Constitution’s history, text, and structure, and from general legal principles.
In brief, the Framers either assumed that self-pardons were invalid or at most failed to consider the issue. The text they wrote does not say anything specific about self-pardons, but their failure to explicitly ban self-pardons cannot be read as a decision to allow them.
Looking at the structure of the Constitution and the government it creates, we find a general distaste for self-dealing and a specific notion of a presidency that is limited in ways that are inconsistent with allowing self-pardons.
Finally, general principles about the rule of law and against self-judging militate strongly in favor of the notion that self-pardons are invalid.
The pardon power of President Trump is getting some news coverage these days due to the Russia probe. Here’s the introduction to a CRS report titled The President’s Pardon Power and Legal Effects on Collateral Consequences, (July 26, 2016, R44571):
Article II of the U.S. Constitution vests the President with the power “to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The President’s pardon power, which derives from English custom, is an extraordinary remedy that is sought by many but received by few. The President may use his clemency authority only for criminal penalties, not civil. Moreover, he may use his clemency authority to pardon federal offenses but not state offenses.
Typically, individuals receive either a pardon or a commutation of sentence, each of which is a type of executive clemency with different legal effects. The Department of Justice in 2014 announced a clemency initiative to prioritize the applications of federal inmates seeking a commutation of sentence, which has reportedly led to an influx of petitions. A commutation of sentence generally results in a reduced sentence, either totally or partially, but such individual will still likely face collateral consequences, that is post-sentence civil penalties or disqualifications that flow from a federal conviction. In contrast, a pardon is the President’s forgiveness for commission of the offense, which removes civil disabilities and collateral consequences. However, given the evolution of jurisprudence on the President’s pardon power, some recipients of a pardon may still face legal consequences from a criminal conviction despite receiving a pardon.
This report reviews the text and jurisprudence of the Pardon Clause of the U.S. Constitution, as well as the types of pardons the clemency power includes, when pardons may be issued, and how pardons are granted. The remainder of the report analyzes the effect of a presidential pardon on collateral consequences. Also discussed in the report are some alternative ways in which a former federal felon may have his or her civil rights restored and certain legal disabilities removed absent a pardon. Lastly, the report covers what role, if any, Congress may play in defining the scope of the pardon power and its effect on collateral consequences.
Here’s a little postscript to the Apple e-book antitrust case. A failed e-book retailer BooksOnBoard (BOB) sued the publishers in 2014 for antitrust violations, essentially blaming conduct by the five Apple defendant publishers for its failure. BOB purchased e-book inventory from a third-party wholesaler and sold books at a discount via its web site.
BOB claimed that the agency model pricing scheme destroyed its ability to compete in the e-book market, among other injuries. The publishers presented evidence contradicting BOB’s claims. The move to agency model pricing actually increased revenues for BOB. The District Court opinion also mentioned factors such as the inability to link product to dedicated e-readers such as the Kindle or Nook and questionable management practices.