As the November midterm elections approach, the New York Times is looking for examples of online ads, posts and texts that contain political disinformation or false claims and are being deliberately spread on internet platforms to try to influence local, statewide, and federal elections. For details, see this NYT story. — Joe
Here. Finally! What do you think? — Joe
In this court filing Lawfare editor in chief Benjamin Wittes, Harvard Law School professor Jack Goldsmith and University of Nevada law professor Stephan Bates are urging a federal judge to unseal the Watergate “Road Map,” a secret report sent to Congress in 1974 containing evidence about President Richard Nixon’s misconduct. The petition comes as debate mounts about how and when special counsel Robert Mueller will end his investigation of Russian election meddling.
Bates and Goldsmith credit the report’s transmission to the House Judiciary Committee as a turning point in the Watergate investigation, saying it culminated with the committee adopting articles of impeachment against Nixon. The options available to Mueller are more analogous to those faced by Watergate special prosecutor Leon Jaworski. They say the 55-page document known as the Road Map could offer Mueller a path to follow as his investigation presses forward.
H/T Courthouse News. — Joe
This edition of the Congressional Research Service’s U.S. Constitution Annotated is a hypertext interpretation of the CRS text, updated to the currently published version. It links to Supreme Court opinions, the U.S. Code, and the Code of Federal Regulations, as well as enhancing navigation through search, breadcrumbs, linked footnotes and tables of contents.
H/T beSpacific. — Joe
Help Bluebook editors in the revision of the 20th edition by taking this survey. — Joe
From the abstract for Elizabeth G. Porter and Kathryn A. Watts, Visual Rulemaking, 91 New York University Law Review 1183 (2016):
Federal rulemaking has traditionally been understood as a text-bound, technocratic process. However, as this Article is the first to uncover, rulemaking stakeholders — including agencies, the President and members of the public — are now deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. Rarely do these visual contributions appear in the official rulemaking record, which remains defined by dense text, lengthy cost-benefit analyses, and expert reports. Perhaps as a result, scholars have overlooked the phenomenon we identify here: the emergence of a visual rulemaking universe that is splashing images, GIFs, and videos across social media channels. While this new universe, which we call “visual rulemaking,” might appear to be wholly distinct from the textual rulemaking universe on which administrative law has long focused, the two are not in fact distinct. Visual politics are seeping into the technocracy.
This Article argues that visual rulemaking is a good thing. It furthers fundamental regulatory values, including transparency and political accountability. It may also facilitate participation by more diverse stakeholders — not merely regulatory insiders who are well-equipped to navigate dense text. Yet we recognize that visual rulemaking poses risks. Visual appeals may undermine the expert-driven foundation of the regulatory state, and some uses may threaten or outright violate key legal doctrines, including the Administrative Procedure Act and longstanding prohibitions on agency lobbying and propaganda. Nonetheless, we conclude that administrative law theory and doctrine ultimately can and should welcome this robust new visual rulemaking culture.
Rep. Doug Collins (R-Ga.) has introduced H.R.6714, Electronic Court Records Reform Act of 2018. The legislation would require that the federal courts make PACER documents available for download free of charge.
H/T to Ars Technica. — Joe
Yesterday, CNN published the text of the letter Christine Blasey Ford wrote to Sen. Dianne Feinstein detailing an event in which she accuses Supreme Court nominee Brett Kavanaugh of sexual misconduct. Here’s the text. — Joe
From the abstract for Sonja West, Suing the President for First Amendment Violations, 71 Oklahoma Law Review ___ (2018):
On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?
One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely clear if or how citizens can hold the President responsible for violating their expressive rights.
This Essay explores some of the potential obstacles facing a person or organization bringing a First Amendment lawsuit against the President such as whether the President can violate the First Amendment at all and how a plaintiff might recover for that violation. It concludes by suggesting a few possible approaches to this problem that could help clarify and secure the rights of all Americans to seek justice—even against the President—if their freedoms of speech and press are violated.
Mueller files superseding criminal information against Manafort ahead of today’s plea hearing [text]
Special counsel Robert Mueller has filed a superseding criminal information against former Trump campaign chairman Paul Manafort who will be appearing in court today for a plea hearing. The superseding criminal information alleges a conspiracy against the US, money laundering, tax fraud, failing to file Foreign Bank Account Reports, and violating the Foreign Agents Registration Act.
On Medium, Fastcase CEO Ed Walters lists all the development work the company accomplished this year (so far): the release of Fastcase 7, the roll-out of the Docket Alarm Analytics Workbench and the AI Sandbox, the launch of Fasecase’s imprint, Full Court Press, and the growth of Fastcase’s digital collection of secondary works. That’s an impressive list of achievements. The last development, secondary law resources, is one that does not get as much attention as it deserves. It certainly does not get the kind of attention received by Fastcase’s other developments. But it is important because primary-law-only search services cannot really compete with WEXIS. And if anyone is going to compete more directly with Thomson Reuters, LexisNexis or BloombergBNA, Fastcase is.
Many years ago I asked Ed about secondary sources on Fastcase. Not now was the response. Back then, the company was focused on growing its primary law collection, particularly state statutes and codes. Now Ed writes “Fastcase has gone from a handful of secondary treatises to more than 400 secondary treatises in about 14 months, with lots more to come.” He adds “And while we’re talking about secondary materials, let’s not forget that Fastcase’s partnership with LexBlog incorporates more than 15,000 of the best blogs of legal analysis, and our partnership with HeinOnline includes the full run of every law review in America.”
What treatises have been added? Ed lists the sources: “Fastcase licensed more than 120 fantastic Aspen and CCH treatises from Wolters Kluwer, 79 labor and employment titles from Littler, and criminal law treatises from Carolina Academic Press. These are terrific, expert guides, like Barry Zalma’s insurance law series. We’ve also added several new state bar association deskbook collections.”
At 400+ secondary law titles, Fastcase’s digital collection is not competitively comprehensive with WEXIS, but it is growing thanks, no doubt, to the work of former LexisNexis executive Steve Errick who, as Fastcase’s first COO, is responsible for this development (among other things, of course).
Now try to imagine Steve’s task at hand. The best way to do that is to put on your bibliographer’s hat. Your largest user population is attorneys who access Fastcase via one of 30 state bar associations that have contracted with the company. They are solo practitioners, small firm attorneys and attorneys employed by large law firms. Information needs are similar but not identical. Some have access to search services offered by our very expensive legal information providers. Some do not.
Many users work for mid-size and large law firms that license WEXIS. With WEXIS in the picture, those attorneys may not consider Fastcase as their go-to search service because WEXIS has a more comprehensive catalog of secondary works. But to fulfill the information needs of mid-size and large law firms Fastcase has licensed titles from Wolters Kluwer publications and is probably looking to add even more titles to license.
Many other users work in small firms or are solo practitioners, some without WEXIS access. While most firms practice at both the state and federal level, small firms and solo practitioners tend to focus their practice on state law. So to fulfill the secondary information needs of small firms and solo practitioners, state law deskbooks, bar association publications and other practice-oriented topical secondary works are needed. Fastcase is building this part of its secondary law resources too.
At some point in the development of its secondary law collection, Fastcase’s materials will become sufficiently attractive to WEXIS users that they may replace WEXIS with Fastcase. Perhaps some already have. More to follow. When Fastcase reaches this critical mass (remember “lots more to come”) watch out WEXIS. In particular, watch out Lexis. Fastcase is rising.
From Quartz: California governor Jerry Brown signed SB 10 into law last week, a bill that replaces cash bail with an algorithmic system. Each county will have to put in place a system to ascertain a suspect’s risk of flight or committing another crime during the trial process, whether that means using a system from a third-party contractor or developing one themselves before the October 2019 deadline.
H/T to beSpacific. — Joe
From California bill regulates IoT for first time in US, Naked Security (Sept. 13, 2018):
The State legislature approved SB-327 Information privacy: connected devices’ last Thursday and handed it over to the Governor to sign. The legislation introduces security requirements for connected devices sold in the US. It defines them as any device that connects directly or indirectly to the internet and has an IP or Bluetooth address. That covers an awful lot of devices.
The legislation says:
This bill, beginning on January 1, 2020, would require a manufacturer of a connected device, as those terms are defined, to equip the device with a reasonable security feature or features that are appropriate to the nature and function of the device, appropriate to the information it may collect, contain, or transmit, and designed to protect the device and any information contained therein from unauthorized access, destruction, use, modification, or disclosure, as specified.
H/T PinHawk Legal Technology Digest (Sept. 14, 2018). — Joe
H/T to Freedom to Tinker for calling attention to Securing the Vote: Protecting American Democracy released by the National Academies of Science, Engineering, and Medicine. Securing the Vote covers cybervulnerabilities in U.S. election systems and how to defend them. It lays out the scientific basis for its conclusions and the 55 recommendations. — Joe
From the blurb for Bill Press, Trump Must Go: The Top 100 Reasons to Dump Trump (and One to Keep Him) (Thomas Dunne Books, Sept. 11, 2018):
In Trump Must Go, TV and radio host Bill Press offers 100 reasons why Trump needs to be removed from office, whether by impeachment, the 25th Amendment, or the ballot box.
Beginning with the man himself and moving through Trump’s executive action damage, Press covers Trump’s debasement of the United States political system and degrading of the American presidency. Ranging from banning federal employees’ use of the phrase “climate change,” to putting down Haiti, El Salvador, and African nations as “shithole” countries, we have to wonder what he’ll do next. He has a bromance with Putin that enables several meetings between Trump staffers and Russian officials, and he has a wrecking crew administration: Attorney General Jeff Sessions, Education Secretary Betsy DeVos, and Housing Secretary Ben Carson, to name a few. Extensive “executive time” marks Trump’s calendar so he can golf, watch TV, and eat fast food. Trump has done it all…badly.
But, in a political climate where the world has learned to expect the unexpected, Press offers readers a twist: one reason not to ditch Donald Trump.
From the blurb for The Social Media Privacy Legislation Desktop Reference (Seyfarth Shaw, 2016-17):
Social media and related issues in the workplace can be a headache for employers. Seyfarth Shaw LLP’s Social Media Practice Group is pleased to provide you with an easy-to-use guide to social media privacy legislation and what employers need to know. The Social Media Privacy Legislation Desktop Reference:
• Describes the content and purpose of the various states’ social media privacy laws.
• Delivers a detailed state-by-state description of each law, listing a general overview, what is prohibited, what is allowed, the remedies for violations, and special notes for each state.
• Provides an easy-to-use chart listing the states that have enacted social media privacy laws and the features of the law in all such states.
• Offers our thoughts on the implications of this legislation in other areas, including trade secret misappropriation, bring your own device issues and concerns, social media discovery and evidence considerations, and use of social media in internal investigations.
The 25th Amendment to the United States Constitution deals with issues related to presidential succession and disability. It was submitted to the states on July 6, 1965, by the 89th Congress and was adopted on February 10, 1967. Did The Caine Mutiny (1954 film) shape the meaning of the 25th Amendment?
This Washington Post article explains that some of the drafters of the 25th Amendment looked to The Caine Mutiny and Captain Queeg as examples of what Section Four of the amendment should not permit because the 25th Amendment was not meant for a case where reasonable people could disagree about whether the leader was mentally ill.
Interesting. — Joe
Today President Trump signed an executive order that threatens sanctions on foreign companies, individuals or governments that meddle in the 2018 mid-term elections and beyond. Interference is defined as hacks against “election infrastructure,” attempts to influence public opinion online, and leaks of political information. The CIA, the National Security Agency, the Department of Homeland Security and the Office of the Director of National Intelligence are charged with determining whether meddling has taken place. The order requires the State Department and the Treasury Department to formulate sanctions that would be imposed against foreigners or foreign nations, with possible calibration based on the severity of offenses.
From Jack M. Balkin’s The Recent Unpleasantness: Understanding the Cycles of Constitutional Time, Indiana Law Journal, (2018 Forthcoming):
This article, originally given as the 2017 Addison C. Harris Lecture at Indiana University, analyzes recent events in terms of three great cycles of change in American constitutional history. The first is the cycle of the rise and fall of political regimes. The second is the cycle of polarization and depolarization. The third is the cycle of the decay and renewal of republican government–the cycle of constitutional rot. Each of these cycles operates on a different time scale. Their interaction generates “constitutional time.”
Many commentators worry that the United States is in a period of constitutional crisis, or that American democracy is doomed. These fears, although understandable, are overstated. America is not in a constitutional crisis, although it is suffering from a fairly severe case of constitutional rot, connected to rising polarization and economic inequality. Our current difficulties are a temporary condition. They stem from the fact that the Reagan regime that has structured American politics since the 1980s is dying, but a new regime has yet to be born.
This is a difficult, agonizing, and humbling transition; and its difficulty is enhanced by the fact that, unlike the last transition, it occurs at the peak of a cycle of polarization and at the low point of a cycle of constitutional rot. For that reason, the transition to a new political regime is likely to be especially difficult. But we will get through it. And when we get through it, about five to ten years from now, American politics will look quite different.
Political renewal is hardly foreordained: it will require persistence and political effort. The point of this lecture is to offer a bit of hope in difficult times. If people misunderstand our situation, and conclude that American decline is inevitable, they may unwittingly help to make that fate a reality; but if they understand the cycles of constitutional time, they may come to believe that their democracy can be redeemed, and do their part to realize that worthy goal.
Interesting. — Joe
On Sept. 10, LexBlog announced that it has launched a legal news blogs network headed by law blogging pioneer Bob Ambrogi in an attempt to build “the world’s largest and most comprehensive legal news and information network by drawing on the contributions of legal bloggers worldwide.” Some 19,000 legal bloggers already participate in the network. Recent additions to the network include LawSites, 3 Geeks and a Law Blog and Dewey B Strategic.
The new network features both curated and real-time posts from lawyers, law professors, law librarians, law students, legal-industry executives, legal marketers, legal consultants, legal technologists and others, providing news, insights and analysis on virtually every legal and practice topic according to LexBlog. Powering the network is LexBlog’s custom-built syndication engine that allows it to aggregate blog content from any source, regardless of whether the blog is hosted by LexBlog on its own blogging platform or externally on any other blogging platform.
In her Dewey B Strategic post, Move over ALM and Law360 – LexBlog is Launching a Legal News Network, Jean O’Grady notes that the LexBlog legal news network may offer digital legal news comsumers a competitive reprieve from LexisNexis’ near monopoly of the US legal news ecosystem (Law360, ALM, Wall Street Journal, MLex, Newsdesk). She writes
Both [Thomson Westlaw and BloombergBNA] do publish news. BloombergBNA has a serious newsletter business and TR has a variety 0f newsy publications and alerts – but neither has made a dent in the Lexis dominance of what I would call “water cooler” legal news.