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John Mikhail (Georgetown University Law Center) has posted Fixing Implied Constitutional Powers in the Founding Era (Constitutional Commentary (Forthcoming)) on SSRN. Here is the abstract:

“The Second Creation” by Jonathan Gienapp is a marvelous study of the earliest debates over constitutional language, meaning, and interpretation. In virtually every aspect, the book is brilliantly conceived, meticulously researched, and masterfully executed. This essay agrees with Gienapp’s key insight that, in many respects, the Constitution was obscure, unfinished, and uncertain in 1789, and we can learn a great deal by paying closer attention to how constitutional debates actually unfolded in the first years after its adoption. A close encounter with that history reveals that constitutional meanings were ambiguous, unstable, and “up for grabs” right from the start. Nonetheless, the essay challenges Gienapp’s thesis to some extent by examining the earliest congressional debates over implied powers and offering a different interpretation of these events than he does, which focuses less on issues of language, meaning, and ontology, and more on the complex interplay of economic interests, regional alignments, and political power. By setting aside the dizzying swirl of semantics and considering how members of Congress actually voted on the removal debate, amendments, the bank bill, and other early controversies, one can identify some remarkably consistent through lines that render the entire sequence of events, and the talking points of politicians, less inchoate and more intelligible. As with so much else that occurred in the founding era, two key factors explaining what transpired are land and slavery.

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From the abstract for Carrie Menkel-Meadow, Negotiating the American Constitution (1787-1789) Coalitions, Process Rules, and Compromises (2019):

This essay describes the multi-party, multi-issue negotiations of the American Constitutional Convention in Philadelphia (1787), using the lens of negotiation theory. Expert process leadership by George Washington, James Madison and Benjamin Franklin, with deliberation about process rules (e.g. speaking rules, confidentiality) and decision rules (voting and reconsideration, packaging) as well as the use of committees and task groups to facilitate both cross-geopolitical and issue coalitions and specialization, rather than Committee of the Whole (plenary) meetings for all of the deliberations, allowed the negotiation, drafting and (later!) ratification of a monumental political document, with dubious political (and moral) legitimacy at the time of its completion, but considerable robustness, with a large number of amendments (including the “afterthoughts” of the Bill of Rights) over time. While there has been much replication of the text of the US Constitution (in later enacted Constitutions by other countries), not enough consideration has been given to the importance of process choices in comparative political theory (cf. Jon Elster’s work). This essay attempts to illustrate the use of “applied history” in understanding complex diplomatic and political negotiations, by using current theories to explore past behavior.

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From the abstract of Gregory C. Sisk, Measuring Law Faculty Scholarly Impact by Citations: Reliable and Valid for Collective Faculty Ranking (Jurimetrics, Forthcoming):

No single metric of faculty scholarly activity can fully capture every individual contribution. For that reason, evaluating a single professor’s scholarly work requires a nuanced, multifaceted, and individually focused assessment. However, for a contemporary sketch of the collective scholarly impact of a law school faculty, citation measurements in the legal literature are both reliable and valid.

The new Heald-Sichelman study of citations in the HeinOnline database confirms the reliability of the multiyear results of the Leiter-Sisk Scholarly Impact Ranking based on the Westlaw journals database. Despite using a different law journal database, counting citations differently, including pre-tenure faculty, and even adding download statistics into the mix, the Heald-Sichelman ranking correlates powerfully at 0.88 with the most recent Leiter-Sisk ranking. An objective citation measurement is time-sensitive and corresponds to informed awareness of law school faculty developments around the country. A citation-based ranking thus is a valid, if imperfect, proxy for faculty scholarly impact on a national scale.

With appropriate qualifications and necessary adjustments, a citation-based ranking should be considered in any evaluation of the overall quality of a law school faculty. For the U.S. News ranking of American law schools, an up-to-date, citation-based ranking would have considerable merit as an objective forward-directed control to the subjective past-looking academic reputation survey.

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From the abstract for Geneviève Vanderstichele, The Normative Value of Legal Analytics. Is There a Case for Statistical Precedent?:

This work contributes to the harmonisation of the quantitative methodologies of data science, computer science and statistics with the qualitative methodology of the law.

It gives a layered answer to the research question whether the outcome of a machine learning algorithm with case law as an input can have normative value. The thesis argues first that the outcome of a machine learning algorithm with case law as an input is not ‘law’ as we know it today. Neither is it a fact in a court case, nor a secondary source of law. The thesis claims furthermore that for methodological reasons, such an outcome is to be considered as a ‘sui generis’ concept, a concept of its own kind, with which courts can, and even should, engage in adjudication. In addition, it is argued that modelling with machine learning can have an implicit normativity through the definition of the purpose of the algorithm, its design and the choices that are made by the software engineers.

In the first part, the work introduces several building blocks that inform the following parts. The second part is a critical analysis of 9 experiments with mainly supervised machine learning algorithms, with case law as an input. The final part discusses the use of the outcome of such algorithms in court cases.

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From the abstract for Jesse Cross, When Courts Should Ignore Statutory Text, George Mason Law Review, Vol. 26, 2018:

Statutory interpreters often rely upon a fundamental assumption: namely, that every word of a statute is meant to be read — and given legal force — by the courts. This assumption unites both textualists and intentionalists, and it has been invoked by Justices as diverse as Chief Justice Marshall, Justice Stevens, and Justice Scalia — the last of whom called it a “cardinal rule of statutory interpretation.” It underpins at least nine separate canons of statutory interpretation, and it even shapes how courts interpret legislative documents beyond statutes. It is difficult to imagine a more central assumption in statutory interpretation.

As this Article shows, however, this assumption is incorrect. Congress routinely inserts language into statutes that it hopes courts will ignore. Rather than addressing courts, this language targets one of three nonjudicial audiences: interest groups, executive agencies, or nonpartisan congressional offices.

This Article — written by a former drafter of congressional statutes — documents this legislative practice. Moreover, it argues that, to the extent that courts want to act as faithful agents of Congress, they should refrain from interpreting and applying this text that Congress intends solely for a nonjudicial audience. The Article outlines a methodology that courts can use to this end — a methodology that can accurately identify statutory text Congress wants courts to ignore.

In addition to showing that courts are reaching incorrect results in important cases — and providing a methodological solution to this problem — the Article’s analysis also holds theoretical lessons for the major schools of thought in statutory interpretation. For intentionalists, it provides a new theory about how courts should weigh legislative materials (including statutory text, appropriations committee reports, and CBO cost estimates). For textualists, it shows that many canons of construction must be modified or discarded, and it also rebuts the foundational notion that statutory text can be divorced from intent or audience. And, for public-choice theorists, it challenges the central idea that legislators are mere agents for interest groups — an idea rebutted by the discovery of a drafting practice that purposefully carves out spaces for principled governance in statutes.

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From Peter Beck, The Parts We Skip: A Taxonomy of Constitutional Irrelevancy, 34 Constitutional Commentary 223 (2019):

Almost every clause that lacks legal force today can fit into one of four categories. The first is the category the House reading tried to identify: provisions that have been amended—repealed or revised by later additions to the Constitution. The second did not make the House’s cut-list, but may have as little legal force as amended items: lapsed clauses—clauses that have sunset through time or changed circumstances. The third is borrowed from literary theory, paratext, all the bits and pieces of text and style in and around the main text, which frame its reading or interpretation (introductions, titles, dates, formatting, etc.). The fourth category contains all the clauses that have been minimized, typically by judges but sometimes by other constitutional actors (the President, Congress)—clauses that might have held legal force (and might yet again) but for their narrow readings. These categories—amended, lapsed, paratext, and minimized—should be comprehensive. Scholars and citizens will continue to argue over which phrases fit into which categories, but all the clauses that might be inoperative should fit into at least one. Furthermore, like Philip Bobbitt’s typology of constitutional argument, this typology of constitutional irrelevancy serves more than just an organizational function. Each kind of irrelevancy is different—each has different implications for how the clauses should be studied, what force (interpretive, if not legal) they should have, and what might happen to them in the future.

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Thomson Reuters has secured a multiyear contract to give Department of Justice personnel access to technology platforms designed for legal research and investigative purposes. More than 25K users across the department will have access to the information service provider’s Westlaw Edge, Litigation Analytics, Drafting Assistant and Practical Law products.

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From the abstract for Kwanghyuk David Yoo, Academic Law Libraries’ New Frontier–The Post Truth Cognitive Bias Challenge and Calls for Behavioral and Structural Reforms (2019):

This article recognizes the escalated concerns of the post-truth phenomenon over its robust play-out as an emerging impetus and catalyst for another level of cognitive bias distorting information behavior, and the reasoning process, of the general public. The article highlights the functional vulnerability of academic law libraries to the post-truth challenge and explores their new frontier in the data-driven era. The article suggests that academic law libraries endeavor to revamp themselves in behavioral and structural contexts. Thus, it maintains that the role of academic law libraries should be reoriented and reshaped as information activists and they should consider technological renovation, inter alia blockchain application, for enhanced Integrated Library System design.

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The British North America Legislative Database includes characteristics of all the legislation passed by the pre-Confederation assemblies of eastern British North America: Nova Scotia (1758-1867); Cape Breton (1785-1820); Prince Edward Island (1768-1867); New Brunswick (1786-1867); Lower Canada (1792-1838); Upper Canada (1792-1840), the United Canadas (1841-1867); and Newfoundland (1832-1867).

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From Executive Privilege and Individuals outside the Executive Branch (IN11177, October 9, 2019):

White House assertions of executive privilege for presidential communications have historically been confined to individuals who were executive branch employees when those communications occurred. While the idea that executive privilege could extend to individuals outside the executive branch predates the Trump Administration, it appears that recent testimony by Kris Kobach, former Kansas Secretary of State, and Corey Lewandowski, former manager of Donald Trump’s 2016 presidential campaign, are likely the first times the executive branch has actually made such an assertion to Congress.

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From the abstract of Jennifer L. Behrens, ‘Unknown Symbols’: Online Legal Research in the Age of Emoji, Forthcoming, 38 Legal Reference Services Quarterly ___ (2019):

Over the last decade, emoji and emoticons have made the leap from text messaging and social media to legal filings, court opinions, and law review articles. However, emoji and emoticons’ growth in popularity has tested the capability of online legal research systems to properly display and retrieve them in search results, posing challenges for future researchers of primary and secondary sources. This article examines current display practices on several of the most popular online legal research services (including Westlaw Edge, Lexis Advance, Bloomberg Law, Fastcase, HeinOnline, and Gale OneFile LegalTrac), and suggests effective workarounds for researchers.

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From the introduction to The Impeachment Process in the House of Representatives (R45769, Updated October 10, 2019): “The House impeachment process generally proceeds in three phases: (1) initiation of the impeachment process; (2) Judiciary Committee investigation, hearings, and markup of articles of impeachment; and (3) full House consideration of the articles of impeachment.”

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The AALL/LexisNexis Call for Papers Committee is soliciting unpublished papers in four categories:

  1. Open Division: AALL members with 5 or more years of experience
  2. New Member Division: AALL members with less than 5 years of experience
  3. Short Division: All AALL members; Shorter-length articles
  4. Student Division: 2019-2020 Law School or Library School students

Deadlines: March 1, 2020 for Open, New, and Short Divisions; May 15, 2020 for the Student Division

For more information, please see the AALL/LexisNexis Call for Papers Awards website at https://bit.ly/2TymOYk

Contact Committee Chair, Jamie Baker, with questions at jamie.baker(at)ttu.edu.

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From the blurb for Rachel Maddow’s Blowout: Corrupted Democracy, Rogue State Russia, and the Richest, Most Destructive Industry on Earth (Crown, Oct. 1, 2019):

In 2010, the words “earthquake swarm” entered the lexicon in Oklahoma. That same year, a trove of Michael Jackson memorabilia—including his iconic crystal-encrusted white glove—was sold at auction for over $1 million to a guy who was, officially, just the lowly forestry minister of the tiny nation of Equatorial Guinea. And in 2014, Ukrainian revolutionaries raided the palace of their ousted president and found a zoo of peacocks, gilded toilets, and a floating restaurant modeled after a Spanish galleon. Unlikely as it might seem, there is a thread connecting these events, and Rachel Maddow follows it to its crooked source: the unimaginably lucrative and equally corrupting oil and gas industry.

With her trademark black humor, Maddow takes us on a switchback journey around the globe, revealing the greed and incompetence of Big Oil and Gas along the way, and drawing a surprising conclusion about why the Russian government hacked the 2016 U.S. election. She deftly shows how Russia’s rich reserves of crude have, paradoxically, stunted its growth, forcing Putin to maintain his power by spreading Russia’s rot into its rivals, its neighbors, the West’s most important alliances, and the United States. Chevron, BP, and a host of other industry players get their star turn, most notably ExxonMobil and the deceptively well-behaved Rex Tillerson. The oil and gas industry has weakened democracies in developed and developing countries, fouled oceans and rivers, and propped up authoritarian thieves and killers. But being outraged at it is, according to Maddow, “like being indignant when a lion takes down and eats a gazelle. You can’t really blame the lion. It’s in her nature.”

Blowout is a call to contain the lion: to stop subsidizing the wealthiest businesses on earth, to fight for transparency, and to check the influence of the world’s most destructive industry and its enablers. The stakes have never been higher. As Maddow writes, “Democracy either wins this one or disappears.”