An alum’s requiem for Whitter Law School

On Above the Law, Jill Switzer, a Whitter Law School alum who has been an active member of the State Bar of California for 40 years, writes what she describes as “a very personal memorial to a school that had really died some years ago, although it didn’t know it then.” She adds “[t]he appalling disregard for educating law students and getting them ready for practice is shameful. Students are on their own. As I saw Whittier’s bar results drop over the decades, I cringed and mourned the death of the kind of education I had received.” — Joe

Westlaw v Lexis v Bloomberg Law (video)

Here’s West Law Story, the law revue version of competition between gangs … I mean between West, Lexis and Bloomberg Law. Just a little Friday fun.  — Joe

Libraries became public institutions during an era much like ours

It was during an era much like ours when the public library became an American institution, according to Barbara Fister in How Libraries Became Public (Inside Higher Ed, April 26, 2017):

I find it intriguing that the American public library grew out of an era that has many similarities to this one – the last quarter of the 19th century, when large corporations owned by the super-rich had gained the power to shape society and fundamentally change the lives of ordinary people. It was also a time of new communication technologies, novel industrial processes, and data-driven management methods that treated workers as interchangeable cogs in a Tayloristic, efficient machine. Stuff got cheaper and more abundant, but wages fell and employment was precarious, with mass layoffs common. The financial sector was behaving badly, too, leading to cyclical panics and depressions. The gap between rich and poor grew, with unprecedented levels of wealth concentrated among a tiny percentage of the population. It all sounds strangely familiar.

From the conclusion of the Inside Higher Ed article:

This [19th century constructive] response to turbulent social stress would be unimaginable today. President Trump’s proposed budget completely defunds the Institute of Museum and Library Services and cuts LSTA grants to local libraries. Our new FCC commissioner has cut out a program that made internet access affordable for resource-poor schools and libraries, rolled back privacy protections so ISPs can get into the targeted advertising game, and now is attacking net neutrality rules so that our telecoms will be able to favor their content and limit access to competitors’ – or to sites that aren’t run by deep-pocket corporations.

What made the vision of “free to all” so attractive in the late 19th century? Why now do we have to pay for “free” information services with our privacy and, ultimately, our freedom? And, given this dismal state of affairs, why do free public libraries persist?

— Joe

A general approach to predicting SCOTUS behavior

Summarizing their work, Daniel Katz, Michael Bommarito and Josh Blackman wrote in A General Approach for Predicting the Behavior of the Supreme Court of the United States:

[W]e offer the first generalized, consistent and out-of-sample applicable machine learning model for predicting decisions of the Supreme Court of the United States. Casting predictions over nearly two centuries, our model achieves 70.2% accuracy at the case outcome level and 71.9% at the justice vote level. More recently over the past century, we outperform an in-sample optimized null model by nearly 5 %. Among other things, we believe such improvements in modeling should be of interest to court observers, litigants, citizens and markets. Indeed, with respect to markets, given judicial decisions can impact publicly traded companies, as highlighted in [Katz DM, Bommarito MJ, Soellinger T, Chen JM. Law on the Market? Evaluating the Securities Market Impact of Supreme Court Decisions 2015], even modest gains in prediction can produce significant financial rewards.

Here’s the abstract:

Building on developments in machine learning and prior work in the science of judicial prediction, we construct a model designed to predict the behavior of the Supreme Court of the United States in a generalized, out-of-sample context. To do so, we develop a time evolving random forest classifier which leverages some unique feature engineering to predict more than 240,000 justice votes and 28,000 cases outcomes over nearly two centuries (1816-2015). Using only data available prior to decision, our model outperforms null (baseline) models at both the justice and case level under both parametric and non-parametric tests. Over nearly two centuries, we achieve 70.2% accuracy at the case outcome level and 71.9% at the justice vote level. More recently, over the past century, we outperform an in-sample optimized null model by nearly 5%. Our performance is consistent with, and improves on the general level of prediction demonstrated by prior work; however, our model is distinctive because it can be applied out-of-sample to the entire past and future of the Court, not a single term. Our results represent an important advance for the science of quantitative legal prediction and portend a range of other potential applications.

— Joe

You would think that nothing else could possibly go wrong for Charlotte School of Law — but you would be wrong

Multiple stories, here and here for example, are reporting that the North Carolina AG is investigating Charlotte School of Law under the state’s civil consumer protection law. To make matters worse, the University of North Carolina system will make a recommendation to the UNC Board of Governors as to whether the school should be allowed to retain its license to operate within the state. Reports indicate the board meets next in about one month from now, where this issue will likely be discussed.  — Joe

Benchmarking the first 100 days of Donald Trump’s presidency

It’s day 98 in the Trump presidency, meaning the countdown to 100 days is almost over. The Trump administration issued multiple fact sheets earlier this week to support its claim that “[a]t an historic pace, this President has enacted more legislation and signed more executive orders than any other president in over a half century.” Quoting from President Trump’s 100 Days of Historic Accomplishments. Due note that the White House is not comparing its accomplishments with FDR’s first 100 days back in 1933.

In his NYT op-ed piece, Donald Trump’s First 100 Days: The Worst on Record, David Leonhardt recently wrote:

Here’s my reading of Trump’s start: It’s the least successful first 100 days since the concept existed. … Even if you forget about the content of his actions — whether they strengthened or weakened the country — and focus only on how much he accomplished, it’s a poor beginning. His supporters deserve to be disappointed, and his opponents should be cheered by how unsuccessful his agenda has been so far.

So which is it, 100 days of historic accomplishments or the least successful 100 days since FDR? To determine for oneself, one might want to check one or more “Trump trackers.” Both the Washington Post’s tracker and this one use Donald Trump’s Contract with the American Voter to identify and then monitor Trump’s individual promises for his first 100 days.  — Joe

Preparing for the 2017 tax reform debate

Individual and corporate income tax reform is in the wind. Here’s a OMB graphic on the sources of US federal tax revenue for reference. Note that individual income tax and corporate income tax receipts represent 57% of all federal tax revenue.

On April 26, the Trump administration released its principles of tax reform. [Text] The document is mostly a series of broad principles under three headings: Goals for Tax Reform, Individual Reform and Business Reform. Compare The Goals Of Donald J. Trump’s Tax Plan, which is hosted on Trump’s presidential campaign site and the Ways and Means Committee Republicans’ Better Way for Tax Reform.

The nonpartisan think tank Tax Policy Center has prepared a series of briefs describing the key tax code provisions Congress is likely to debate when tax reform moves to the center of public attention. The below graphic was created by the Center. — Joe

 

Analysis of blockchain applications from a political perspective

From the abstract of Marcella Atzori’s Blockchain Technology and Decentralized Governance: Is the State Still Necessary?:

The core technology of Bitcoin, the blockchain, has recently emerged as a disruptive innovation with a wide range of applications, potentially able to redesign our interactions in business, politics and society at large. Although scholarly interest in this subject is growing, a comprehensive analysis of blockchain applications from a political perspective is severely lacking to date. This paper aims to fill this gap and it discusses the key points of blockchain-based decentralized governance, which challenges to varying degrees the traditional mechanisms of State authority, citizenship and democracy. In particular, the paper verifies to which extent blockchain and decentralized platforms can be considered as hyper-political tools, capable to manage social interactions on large scale and dismiss traditional central authorities. The analysis highlights risks related to a dominant position of private powers in distributed ecosystems, which may lead to a general disempowerment of citizens and to the emergence of a stateless global society. While technological utopians urge the demise of any centralized institution, this paper advocates the role of the State as a necessary central point of coordination in society, showing that decentralization through algorithm-based consensus is an organizational theory, not a stand-alone political theory.

— Joe

Algorithmic performance of legal tasks will save time but time-savings will be less significant than popular accounts suggest

The title of this post is one of the main conclusions Dana Remus and Frank Levy reach in Can Robots Be Lawyers? Computers, Lawyers, and the Practice of Law. Here’s the abstract:

We assess frequently-advanced arguments that automation will soon replace much of the work currently performed by lawyers. Our assessment addresses three core weaknesses in the existing literature: (i) a failure to engage with technical details to appreciate the capacities and limits of existing and emerging software; (ii) an absence of data on how lawyers divide their time among various tasks, only some of which can be automated; and (iii) inadequate consideration of whether algorithmic performance of a task conforms to the values, ideals and challenges of the legal profession.

Combining a detailed technical analysis with a unique data set on time allocation in large law firms, we estimate that automation has an impact on the demand for lawyers’ time that while measureable, is far less significant than popular accounts suggest. We then argue that the existing literature’s narrow focus on employment effects should be broadened to include the many ways in which computers are changing (as opposed to replacing) the work of lawyers. We show that the relevant evaluative and normative inquiries must begin with the ways in which computers perform various lawyering tasks differently than humans. These differences inform the desirability of automating various aspects of legal practice, while also shedding light on the core values of legal professionalism.

Recommended. H/T to Jeffrey Brandt’s Growing AI Redux post. — Joe

Law librarian’s role regarding AI applications in legal research, legal practice and education

“Artificial intelligence (AI) and its legal practice applications are grabbing headlines in the legal industry. Ever since the early success stories of IBM Watson, the legal press has been buzzing with articles that debate whether AI is a threat or hope and whether AI will transform, disrupt, revolutionize, or even remake the legal industry. … Now it’s time to focus on the law librarian’s role regarding AI applications in legal research and aiding practitioners in minimizing potential risks due to AI utilization,” write Sherry Xin Chen and Mary Ann Neary in Artificial Intelligence, Legal Research and Law Librarians, AALL Spectrum (May-June 2017) at 17. And that is exactly what the authors do.

In this very interesting article the authors conclude:

Having a general understanding of database algorithms offers a glimpse into the inner workings of AI and makes it possible for attorneys and law librarians to evaluate and correct possible mistakes created by an AI program. Law librarians need to maintain their role in the information cycle as instructors, experts, knowledge curators, and technology consultants as AI is implemented in legal
practice and education.

Recommended. — Joe

Perhaps not as easy as first thought: Court blocks part of Trump’s sanctuary cities executive order

A federal judge on Tuesday blocked enforcement of part of President Donald Trump’s executive order to deny federal funding to sanctuary cities that refuse to help the government detain and deport immigrants. The court issued a nationwide injunction to block enforcement of Section 9(a) of E.O. 13768, Enhancing Public Safety in the Interior of the United States, 82 Fed. Reg. 8799 (Jan. 30, 2017), the provision that would allow the federal government to withhold funding from sanctuary jurisdictions. Text of Decision. For an analysis, see Steven D. Schwinn’s Constitutional Law Prof Blog post.

Prior to the court ruling, the administration’s latest effort to clamp down on sanctuary jurisdictions came on April 21st when the DOJ sent letters to nine jurisdictions demanding proof of compliance with 8 USC 1373. According to the DOJ press release:

The letters remind the recipient jurisdictions that, as a condition for receiving certain financial year 2016 funding from the Department of Justice, each of these jurisdictions agreed to provide documentation and an opinion from legal counsel validating that they are in compliance with Section 1373. The Department of Justice expects each of these jurisdictions to comply with this grant condition and to submit all documentation to the Office of Justice Programs by June 30, 2017, the deadline imposed by the grant agreement.

The piecemeal implementation of Trump’s executive order, should it ever be enforceable, is the topic of Sanctuary Jurisdictions and Select Federal Grant Funding Issues: In Brief (March 16, 2017, R44789). This report discusses questions that might be raised regarding the implementation of Trump’s EO 13768 by federal grant-making agencies on the impact of federal grant funding for designated sanctuary jurisdictions. The CRS report observes

Because of the complexity of implementing a centralized policy such as the EO through the decentralized structure of federal grants administration practices, there is uncertainty in determining the impact of the EO on federal grant funding for sanctuary jurisdictions. The impact could be affected by the discretion exercised by the Attorney General and the Secretary [of Homeland Security] in defining a “federal grant,” determining which programs are exempted because of providing necessary funding for law enforcement purposes, and determining what constitutes a “sanctuary jurisdiction.” The impact of the EO on federal grant funding could also be affected by how federal grant awarding agencies utilize discretion in administering the grant programs, including review of eligibility and conditioning federal grant awards.

End Note. See also this CRS report, Executive Orders: Issuance, Modification, and Revocation (April 16, 2014, RS20846) which discusses executive orders with a focus on the scope of presidential authority to execute such instruments, as well as judicial and congressional responses to their issuance, and  this LLB post for links to additional CRS reports on sanctuary jurisdictions. For additional background, see Darla Cameron’s How sanctuary cities work, and how Trump’s executive order might affect them (Washington Post, Jan. 25, 2017). — Joe

Annual subscription model for periodicals reigns supreme: Shifts to online and open access content are not causing a sea change in pricing

“The shift to digital delivery of serials content has had a profound effect on the information ecosystem” but not on pricing models report Stephen Bosch and Kittie Henderson in their LJ article, New World, Same Model: Periodical Pricing Survey 2017. “Most publishers have explored new ways of pricing their content—such as population served, FTE (full-time equivalent), tiered pricing based upon Carnegie classification, or other defining criteria—or the database model, which treats all content within an e-journal package as a database, eliminating the need for title by title reconciliation. However, in the end, the pricing conversation always seems to circle back to the revenue generated by the annual subscription model.” Here’s what the authors forecast:

The 2018 serials marketplace will continue to see steady price increases, with no indicators that this will change. Drivers in the marketplace, such as budget compression, currency fluctuation, OA, government mandates, shifts in the global political climate, new assessment and evaluation tools, and alternating patterns of the distribution of information offered by research platforms and social networks have not changed the fundamentals of the business models, and serials price inflation remains constant. Publisher and vendor consolidation will continue, and libraries will actively manage their portfolios to get the biggest return for their dollars. Annual price inflation has hovered in the 6% range since 2012. As in previous years, the 6% average price increase seen in 2017 is expected to be much the same for 2018. The mature market seems to have found the 5%–6% equilibrium a rate of increase that neither libraries nor publishers like but with which both can work.

— Joe

Register of Copyrights: ‘Why should the Librarian [of Congress] have unilateral authority over an appointment that impacts so many livelihoods in the United States?’

Currently the Register of Copyrights is appointed by the Librarian of Congress. That would change if H.R. 1695, Register of Copyrights Selection and Accountability Act of 2017, passes. The bill would make the Register position a presidential appointment with confirmation by the Senate, with 10-year term limit. It would create minimum standards for those who hold the Register of Copyrights position by requiring the officeholder to be a U.S. citizen who has professional background and experience in copyright law. Under the proposed legislation, the President will select a nominee from a list of names identified by a Congressional leadership panel that includes the Librarian of Congress.

H.R. 1695 was reported out of committee [H. Rept. 115-91] and placed on the Union Calendar on April 20th.  The Hill’s Dina LaPolt and John Meller in H.R. 1695: A vital first step towards Copyright Office modernization opine that this change makes sense:

The Register advises Congress and accordingly, Congress should have a hand in who holds this position.  It makes sense to appoint the Register via a standard nomination process involving our elected representatives, same as most other high-ranking government officials. Why should the Librarian have unilateral authority over an appointment that impacts so many livelihoods in the United States?

AALL opposes the bill, stating that our association believes it is unnecessary and would create management conflicts within the Library of Congress. But LaPolt and Meller report that two former Registers support it.

This bill is also supported by two previous Registers of Copyright, Marybeth Peters and Ralph Oman. They point out that the Act would address issues that have escalated in the relationship between the Copyright Office and the Library, which they state are “structural, not personal or political”, and explain that Congress should be able to obtain “independent copyright advice straight and true from the expert agency” rather than “filtered through the lens – and shaped by the perspective – of the head of the national library”.  Their opinion should carry great weight here—especially since they were themselves appointed unilaterally by the Librarian.

What do you think? — Joe

How a network of bills become a law: What can be learned from GovTrack’s text incorporation analysis for legislative history research

A new analytical tool incorporated into GovTrack late last year reveals when provisions of bills are incorporated into other bills by way of text incorporation analysis. “Only about 3% of bills will be enacted through the signature of the President or a veto override. Another 1% are identical to those bills, so-called ‘companion bills,’ which are easily identified. Our new analysis reveals almost another 3% of bills which had substantial parts incorporated into an enacted bill in 2015–2016. To miss that last 3% is to be practically 100% wrong about how many bills are being enacted by Congress,” writes GovTrack. For details see GovTrack’s blog post and illustration of this new technique. — Joe

Source: Govtrack

Understand the blockchain in two minutes (video)

From the YouTube blurb for the below video:

Over the past decade, an alternative digital paradigm has slowly been taking shape at the edges of the internet. This new paradigm is the blockchain. After incubating through millions of Bitcoin transactions and a host of developer projects, it is now on the tips of tongues of CEOs and CTOs, startup entrepreneurs, and even governance activists. Though these stakeholders are beginning to understand the disruptive potential of blockchain technology and are experimenting with its most promising applications, few have asked a more fundamental question: What will a world driven by blockchains look like a decade from now?

— Joe

Ousted Cincinnati Law Dean Jennifer Bard sues university, seeks reinstatement

The complaint, filed late last week, asserts the interim provost and the University of Cincinnati illegally placed Jennifer Bard on administrative leave in March immediately following her response to local media reports about financial deficits at the College and faculty members’ responses to her efforts to reduce those deficits. The complaint also asserts Bard was denied due process of law under the Fourteenth Amendment when she was summarily placed on administrative leave, suffered First Amendment retaliation for speaking to the press on matters of public concern, and that the university breached both its contract with her and an agreed upon 6-month plan to restore mutual trust and communication. TaxProf Blog has the complaint.  — Joe

The threat of algorithmic entities

From the abstract of Algorithmic Entities, 95 Washington University Law Review (Forthcoming), by Lynn LoPucki (UCLA):

This Article argues that algorithmic entities — legal entities that have no human controllers — greatly exacerbate the threat of artificial intelligence. Algorithmic entities are likely to prosper first and most in criminal, terrorist, and other anti-social activities because that is where they have their greatest comparative advantage over human-controlled entities. Control of legal entities will contribute to algorithms’ prosperity by providing them with identities that will enable them to accumulate wealth and participate in commerce.

Four aspects of corporate law make the human race vulnerable to the threat of algorithmic entities. First, algorithms can lawfully have exclusive control of not just American LLC’s but also a large majority of the entity forms in most countries. Second, entities can change regulatory regimes quickly and easily through migration. Third, governments — particularly in the United States — lack the ability to determine who controls entities they charter and so cannot determine which have non-human controllers. Lastly, corporate charter competition, combined with ease of entity migration, makes it virtually impossible for any government to regulate algorithmic control of entities.

— Joe

CRS reports of the shutdown of the federal government: Causes, processes, effects, and resources

Shutdown of the Federal Government: Causes, Processes, and Effects (Sept. 8, 2014, RL34680) discussess the causes of shutdowns, including the legal framework under which they may occur; processes related to how agencies may plan for the contingency of a shutdown; effects of shutdowns, focusing especially on federal personnel and government operations; and issues related to shutdowns that may be of interest to Congress. See also, Past Government Shutdowns: Key Resources (Sept. 29, 2015, R41759) which provides an annotated list of historical documents and other resources related to several past government shutdowns. Sources for these documents and resources include the Congressional Research Service, Government Accountability Office, House and Senate Committees, Office of Management and Budget, Office of Personnel Management, and the Executive Office of the President. — Joe

Under the search bar: The web’s most valuable real estate for ads

In How Google Cashes In on the Space Right Under the Search Bar (NYT, Apr. 23, 2017), Daisuke Wakabayashi wrote, “[w]hen Google’s parent company, Alphabet, reports earnings this week, the internet giant’s big profits are expected to demonstrate yet again that the billboard space accompanying Google queries is the web’s most valuable real estate for advertisements,” adding

In the 17 years since Google introduced text-based advertising above search results, the company has allocated more space to ads and created new forms of them. The ad creep on Google has pushed “organic” (unpaid) search results farther down the screen, an effect even more pronounced on the smaller displays of smartphones.

The changes are profound for retailers and brands that rely on leads from Google searches to drive online sales. With limited space available near the top of search results, not advertising on search terms associated with your brand or displaying images of your products is tantamount to telling potential customers to spend their money elsewhere.

— Joe

Impeachment talk: idle or serious threat?

Time’s Katie Reilly offers a backgrounder on impeachment in the context of the Trump presidency in How Difficult Would It Be to Impeach President Trump? In the article, Reilly observes “Bush and Obama both faced idle impeachment threats that never amounted to anything. People who now believe there’s a serious case for impeaching Trump will have to overcome the reputation established by those who raise the specter of impeachment merely to demonstrate political opposition.” — Joe