Towards a Series of Academic Norms for #Lawprof Twitter by Carissa Byrne Hessick discusses the virtues and the vices of law professors participating in a now-popular form of public discourse: Twitter. It also offers some tentative thoughts on what professional norms ought to apply to law professors who identify themselves as law professors on Twitter. Specifically, it suggests that law professors should assume that, each time they tweet about a legal issue, they are making an implicit claim to expertise about that issue. It also suggests that law professors who participate on Twitter should do so primarily to help promote reasoned debate. — Joe
Here’s the abstract for Lili Levi’s Real “Fake News” and Fake “Fake News,” 16 First Amend. L. Rev., Forthcoming:
“Fake news” has become the central inflammatory charge in media discourse in the United States since the 2016 presidential contest. In the political realm, both intentionally fabricated information and the “fake news” defense by politicians confronted with negative press reports can potentially influence public beliefs and possibly even skew electoral results. Perhaps even more insidiously, as evidenced by President Trump’s dismissal of the traditional press as the “enemy of the American people,” the “fake news” accusation can serve as a power-shifting governance mechanism to delegitimize the institutional press as a whole. Both these strategic uses of “fake news”—to achieve specific political results and to destabilize the press as an institution—are self-evidently very dangerous for democracy. As if this were not a sufficient threat to the democratic order, however, “fake news” is also a threat, inter alia, to the stability of the financial markets as well. Whether for competitive advantage, terror, or geopolitical gamesmanship, the deployment of market-affecting fabricated information is a looming danger ahead. Simply put, therefore, “fake news” presents profound—and likely increasing—challenges for both the public and private spheres today.
In light of this complexity, no single—or simple—tactic is sufficient to address the variety of challenges posed by the multi-headed phenomenon of “fake news.” This Article suggests beginning with a three-pronged approach—focusing on platform self-regulation, audience information literacy, and—perhaps counterintuitively—empowerment of the press itself. First, despite distrust of platform self-regulation, there is reason to believe that the threats posed by “fake news” to commercial interests may stimulate constructive solutions. Second, while cognitive science reveals limits to traditional information literacy approaches, interdisciplinary engagement may enhance the effectiveness of inevitably iterative information literacy initiatives in the “fake news” context. Third, in contrast to suggested solutions exploring express governmental attempts to prohibit or limit “fake news” directly, the Article instead recommends a reversal of current doctrine and practice in the form of a broad-based expansion of affirmative rights for the press. If given expanded protections, the professional press can transform the modern context of “fake news” into an opportunity to shine as watchdog and, hopefully, thereby rebuild public trust. Tools to empower the professional press can help forge alliances between the conservative and liberal wings of the traditional media, thereby isolating and minimizing the impact of newly-rising alt-right media entrants. The results will surely be imperfect, but the alternative is worse: a neutered and supine press operating merely to entertain a fragmented and polarized audience in an increasingly authoritarian global political and commercial environment.
The mainstream press today is both demonized by the right and at risk from the left’s recent attempts to desacralize the First Amendment on the ground of its rightward ideological drift. In questioning that development, the Article suggests that progressive scholars’ critiques of recent libertarian doctrinal developments regarding the freedom of speech should in no way impede the recognition and enhancement of the First Amendment’s protections for a free and independent press. In that spirit, the Article appeals to courts, legislators, and government actors at every level to back up an ostensible commitment to free speech with an equally robust commitment to a free press. It also calls on the press to revise its practices in response.
Here’s the abstract for Adam Steinman’s very interesting article simply titled Case Law, Boston University Law Review, Vol. 97, No. 1947, 2017:
Although case law plays a crucial role in the American legal system, surprisingly little consensus exists on how to determine the “law” that any given “case” generates. Lawyers, judges, and scholars regularly note the difference between holdings and dicta and between necessary and unnecessary parts of a precedent-setting decision, but such concepts have eluded coherent application in practice. There remains considerable uncertainty about which aspects of a judicial decision impose prospective legal obligations as a matter of stare decisis and to what extent.
This Article develops a counterintuitive, but productive, way to conceptualize case law: the lawmaking content of a judicial decision should be only those decisional rules that the court states explicitly and that can be framed in the form (If P, then Q). Future courts would not, however, be required to reconcile their decisions with other findings, conclusions, or reasons that the precedent-setting court offers. Although these other elements of a judicial decision could remain influential, they would not impose binding obligations as a matter of hierarchical stare decisis.
This rule-centered approach would allow judicial decisions to clarify the law when such clarifying rules are justified and desirable, but otherwise leave the slate clean for courts to confront unresolved questions in future cases with the full participation of future litigants. As to the concern that judicially announced rules may sweep too broadly, this Article’s approach would leave future courts free to develop distinguishing rules in a way that serves many of the same purposes as the conventional understanding of how cases may be distinguished, but that reduces the risk of disingenuous distinctions, enhances rather than muddies case law’s clarifying benefits, and avoids conceptual and definitional problems inherent in the current approach. This Article’s framework also helps to resolve a host of other difficult puzzles relating to judicial decision-making, including the controversy surrounding unpublished opinions, the stare decisis effect of decisions that lack a majority opinion, and how to identify and resolve tensions within case law.
From the blurb for Trump Revealed: The Definitive Biography of the 45th President by Michael Kranish and Marc Fisher:
Hailed as “authoritative” and “essential,” and based on the work of two dozen reporters and twenty hours of interviews with Trump, Trump Revealed is the indispensable and now updated biography of the 45th president of the United States.
Coauthored by Washington Post investigative political reporter Michael Kranish and senior editor Marc Fisher, Trump Revealed details the 1970s Justice Department suit against Trump and his father for racial discrimination, his business and political machinations and alleged organized crime connections, his disastrous Atlantic City casino projects, and his relentless pursuit of the attentions of the media. What emerges is a portrait of “a man certain of his views, hugely confident in his abilities, not terribly well informed, quick to take offense,” a man with a penchant for big bets—on real estate, branded businesses, and, ultimately, on himself.
Introduction to the Legislative Process in the U.S. Congress ( Jan. 10, 2018 R42843) “introduces the main steps through which a bill (or other item of business) may travel in the legislative process—from introduction to committee and floor consideration to possible presidential consideration. However, the process by which a bill can become law is rarely predictable and can vary significantly from bill to bill. In fact, for many bills, the process will not follow the sequence of congressional stages that are often understood to make up the legislative process. This report presents a look at each of the common stages through which a bill may move, but complications and variations abound in practice.” — Joe
Here’s the abstract for Neil Siegel’s Political Norms, Constitutional Conventions, and President Donald Trump:
This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a pivotal role in sustaining the Constitution. Part I discusses political norms and constitutional conventions, including how they are alike, how they are different, and why they matter in the United States notwithstanding the existence of a written constitution. Part II substantiates this Essay’s claim that President Trump has consistently disrespected numerous political norms and constitutional conventions. The Conclusion suggests that the jury is still out on how successful President Trump will be in eroding political norms and constitutional conventions.
Here’s the abstract for Topic Modeling the President: Conventional and Computational Methods, George Washington Law Review, Forthcoming, by J. B. Ruhl, John Nay and Jonathan M. Gilligan:
Law is generally represented through text, and lawyers have for centuries classified large bodies of legal text into distinct topics — they “topic model” the law. But large bodies of legal documents present challenges for conventional topic modeling methods. The task of gathering, reviewing, coding, sorting, and assessing a body of tens of thousands of legal documents is a daunting proposition. Recent advances in computational text analytics, a subset of the field of “artificial intelligence,” are already gaining traction in legal practice settings such as e-discovery by leveraging the speed and capacity of computers to process enormous bodies of documents. Differences between conventional and computational methods, however, suggest that computational text modeling has its own limitations, but that the two methods used in unison could be a powerful research tool for legal scholars in their research as well.
To explore that potential — and to do so critically rather than under the “shiny rock” spell of artificial intelligence — we assembled a large corpus of presidential documents to assess how computational topic modeling compares to conventional methods and evaluate how legal scholars can best make use of the computational methods. The presidential documents of interest comprise presidential “direct actions,” such as executive orders, presidential memoranda, proclamations, and other exercises of authority the president can take alone, without congressional concurrence or agency involvement. Presidents have been issuing direct actions throughout the history of the republic, and while they have often been the target of criticism and controversy in the past, lately they have become a tinderbox of debate. Hence, although long ignored by political scientists and legal scholars, there has been a surge of interest in the scope, content, and impact of presidential direct actions.
Legal and policy scholars modeling direct actions into substantive topic classifications thus far have not employed computational methods. This gives us an opportunity to compare results of the two methods. We generated computational topic models of all direct actions over time periods other scholars have studied using conventional methods, and did the same for a case study of environmental policy direct actions. Our computational model of all direct actions closely matched one of the two comprehensive empirical models developed using conventional methods. By contrast, our environmental case study model differed markedly from the only other empirical topic model of environmental policy direct actions, revealing that the conventional methods model included trivial categories and omitted important alternative topics.
Our findings support the assessment that computational topic modeling, provided a sufficiently large corpus of documents is used, can provide important insights for legal scholars in designing and validating their topic models of legal text. To be sure, computational topic modeling used alone has its limitations, some of which are evident in our models, but when used along with conventional methods, it opens doors towards reaching more confident conclusions about how to conceptualize topics in law. Drawing from these results, we offer several use cases for computational topic modeling in legal research. At the front-end, researchers can use the method to generate better and more complete model hypotheses. At the back-end, the method can effectively be used, as we did, to validate existing topic models. And at a meta-scale, the method opens windows to test and challenge conventional legal theory. Legal scholars can do all of these without “the machines,” but there is good reason to believe we can do it better with them in the toolkit.
Interesting. — Joe
Study finds there is no statistically significant wage gap between racial minorities and non-minorities in ARL libraries today
From the abstract of Is There a Racial Wage Gap in Research Libraries? An Analysis of ARL Libraries by Quinn Galbraith, Heather Kelley and Michael Groesbeck:
Racial equality has been of great importance to the Association of Research Libraries (ARL), as seen through various initiatives. However, in recent years, little research has been done regarding the racial wage gap in ARL libraries. Researchers used thirty-five years of raw ARL salary survey data to examine the wage gap between racial minorities and non-minorities (whites). Using this data, researchers created a model that controlled for institution, years of experience, years of experience squared, position, law or medical library, and sex in order to better understand the nature of the racial wage gap. This model shows that the gap has gradually closed over the years and that there is no longer a statistically significant wage gap between racial minorities and non-minorities in ARL libraries today.
H/T to Gary Price’s InfoDocket post. — Joe
From the press release: “The Department of Justice today issued a memo on federal marijuana enforcement policy announcing a return to the rule of law and the rescission of previous guidance documents.” Here’s the text of AG Sessions’ Jan. 4, 2017 marijuana enforcement memorandum to all U.S. attorneys.
For commentary and analysis of this development, see this Marijuana Law, Policy & Reform post by OSU Law Prof Douglas Berman. — Joe
From the blurb for Lloyd Green’s Devil’s Bargain: Steve Bannon, Donald Trump, and the Storming of the Presidency (Penguin, July 18, 2017):
From the reporter who was there at the very beginning comes the revealing inside story of the partnership between Steve Bannon and Donald Trump—the key to understanding the rise of the alt-right, the fall of Hillary Clinton, and the hidden forces that drove the greatest upset in American political history.
Based on dozens of interviews conducted over six years, Green spins the master narrative of the 2016 campaign from its origins in the far fringes of right-wing politics and reality television to its culmination inside Trump’s penthouse on election night.
The shocking elevation of Bannon to head Trump’s flagging presidential campaign on August 17, 2016, hit political Washington like a thunderclap and seemed to signal the meltdown of the Republican Party. Bannon was a bomb-throwing pugilist who’d never run a campaign and was despised by Democrats and Republicans alike.
Yet Bannon’s hard-edged ethno-nationalism and his elaborate, years-long plot to destroy Hillary Clinton paved the way for Trump’s unlikely victory. Trump became the avatar of a dark but powerful worldview that dominated the airwaves and spoke to voters whom others couldn’t see. Trump’s campaign was the final phase of a populist insurgency that had been building up in America for years, and Bannon, its inscrutable mastermind, believed it was the culmination of a hard-right global uprising that would change the world.
Any study of Trump’s rise to the presidency is unavoidably a study of Bannon. Devil’s Bargain is a tour-de-force telling of the remarkable confluence of circumstances that decided the election, many of them orchestrated by Bannon and his allies, who really did plot a vast, right-wing conspiracy to stop Clinton. To understand Trump’s extraordinary rise and Clinton’s fall, you have to weave Trump’s story together with Bannon’s, or else it doesn’t make sense.
Donald J. Trump, the 45th President of the United States of America, had a bad day yesterday. New York Magazine published highlights from Michael Wolff’s soon to be published book, Fire and Fury: Inside Trump’s White House [Amazon] here and Trump’s reaction to the revelations contained therein, specifically those attributed to Steve Bannon here.
On a related note, Paul Manafort’s attorneys argued in a complaint filed yesterday that the DOJ order establishing Mueller’s investigation is overly broad and not permitted under Justice Department regulations. The 17-page complaint argues that the Russia special counsel exceeded authority DOJ gave him in May to investigate any links or coordination between the Russian government and the Trump campaign — and that DOJ granted Mueller too much power in the first place by giving him the green light to go after “any matters that arose or may arise directly from the investigation.” Here’s the complaint.
What might be the worst day in Trump’s political life? Perhaps election night if you believe Michael Wolff’s account of the evening. — Joe
Bob Ambrogi is joining LexBlog as publisher and editor-in-chief of a new arm of the company, one that “will make legal news, information and analysis more easily and intuitively accessible to legal professionals and the public and that will shine a light on the many bloggers who are writing all this.” More at Bob’s LawSites post. Congrats and good luck. — Joe
The Guardian is reporting that the British government has announced that it will make high-speed broadband internet a guaranteed legal right for all homes and businesses in the UK by 2020. The U.K.’s Department for Digital, Culture, Media and Sport has committed to providing users the legal right to ask an ISP to provide a minimum 10 Mbps connection to their home, regardless of whether they live in an urban or rural area. — Joe
Sarah Lawsky’s essay, A Logic for Statutes, Florida Tax Review (forthcoming), “examines the structure of statutory reasoning after ambiguities are resolved and the meaning of the statute’s terms established. It argues that standard formal logic is not the best approach for representing statutory rule-based reasoning. Rather, the essay argues, using the Internal Revenue Code and accompanying regulations, judicial decisions, and rulings as its primary example, that at least some statutory reasoning is best characterized as defeasible reasoning — reasoning that may result in conclusions that can be defeated by subsequent information — and is best represented using default logic. The essay then addresses the practical and theoretical benefits of this alternative understanding of rule-based legal reasoning.”
Interesting. — Joe
More than 60 years of U.S. laws are now published online and accessible for free for the first time after being acquired through a purchase agreement with William S. Hein & Co, Inc. The Library has made available the main editions and supplements of the United States Code from 1925 through the 1988 edition here.
H/T to beSpacific. — Joe
From the blurb for MIT professor Max Tegmark’s Life 3.0: Being Human in the Age of Artificial Intelligence:
How will Artificial Intelligence affect crime, war, justice, jobs, society and our very sense of being human? The rise of AI has the potential to transform our future more than any other technology—and there’s nobody better qualified or situated to explore that future than Max Tegmark, an MIT professor who’s helped mainstream research on how to keep AI beneficial.
How can we grow our prosperity through automation without leaving people lacking income or purpose? What career advice should we give today’s kids? How can we make future AI systems more robust, so that they do what we want without crashing, malfunctioning or getting hacked? Should we fear an arms race in lethal autonomous weapons? Will machines eventually outsmart us at all tasks, replacing humans on the job market and perhaps altogether? Will AI help life flourish like never before or give us more power than we can handle?
What sort of future do you want? This book empowers you to join what may be the most important conversation of our time. It doesn’t shy away from the full range of viewpoints or from the most controversial issues—from superintelligence to meaning, consciousness and the ultimate physical limits on life in the cosmos.
The FUTURE of AI Act [text] would require the Secretary of Commerce to establish a federal advisory committee on the development and implementation of artificial intelligence. Future laws regulating AI may be steered by the committee’s input. The areas of interest cover subjects such as economic impact and the competitiveness of the US economy in the future, but also will explore some legal matters, which will include: “ethics training” for technologists working with AI; data sharing; and “machine learning bias…and cultural and societal norms.” Introduced by Senators Maria Cantwell (D-WA), Todd Young (R-IN), and Ed Markey (D-MA), along with Representatives John K. Delaney (D-MD) and Pete Olson (R-TX) this bill, to the best of my knowledge, is the first AI-related legislative proposal.
On a related note, co-sponsor Rep. John Delaney (D-MD) launched the Artificial Intelligence Caucus for the 115th Congress in May. The AI Caucus is co-chaired by Republican Congressman Pete Olson (TX-22).The goal of the caucus is to inform policymakers of the technological, economic and social impacts of advances in AI and to ensure that rapid innovation in AI and related fields benefits Americans as fully as possible. The AI Caucus will bring together experts from academia, government and the private sector to discuss the latest technologies and the implications and opportunities created by these new changes. — Joe
The New York Times reports that “the strategy … is the first comprehensive effort by his administration to describe an all-encompassing strategic worldview. Administration officials said it was drawn from speeches Mr. Trump had delivered during the presidential campaign, in Europe and Asia and at the United Nations.”
Here’s the text: National Security Strategy (Dec. 18, 2017). — Joe