Foundations for Evidence-Based Policymaking Act, H.R. 4174, passes House; Incorporates provisions of the OPEN Government Data Act

The bipartisan supported Foundations for Evidence-Based Policymaking Act, H.R. 4174, passed the House by voice vote on Nov. 15, 2017. Sponsored by Speaker Ryan, the bill incorporates some of the recommendations the White House’s Commission on Evidence-Based Policymaking made in September and absorbs elements of the Open, Public, Electronic and Necessary Government Data Act, or the OPEN Government Data Act, sponsored by Reps. Derek Kilmer, D-Wash., and Blake Farenthold, R-Texas., and Sens. Brian Schatz, D-Hawaii., and Ben Sasse, R-Neb. Quoting from H. Rept. 115-411:

H.R. 4174, the Foundations for Evidence-Based Policymaking Act of 2017, advances the evidence building functions in the Federal government by improving access to data and expanding evaluation capacity. The bill incorporates H.R. 1770, the OPEN Government Data Act, in titles I and II, which expand public access to Federal data assets and make information about Federal data assets publicly available in a comprehensive, searchable inventory. H.R. 4174 improves data management practices by codifying the Chief Data Officer position and requiring the new position to coordinate the agency’s data management functions. H.R. 4174 also establishes the position of Chief Evaluation Officer, which is responsible for coordinating evidence-building activities across the agency and leading the agency’s evidence-building strategic planning. The bill further expands access to data by establishing a secure process for accessing nonpublic data assets for the purpose of evidence-building.

Summary of the Foundations for Evidence-Based Policymaking Act

Title I, Federal Evidence-Building Activities

  • Requires federal agencies to submit an evidence-building plan, which will be consolidated into one government-wide plan by the Office of Management and Budget
  • Requires federal agencies to appoint/designate a Chief Evaluation Officer to coordinate evidence-building activities within the agency Establishes an advisory committee on data for evidence building

Title II, OPEN Government Act

  • Ensures maximum data availability while respecting privacy and national security concerns
  • Requires federal agencies to appoint/designate a Chief Data Officer
  • Instructs federal agencies to establish a data inventory and federal data catalogue

Title III, Confidential Information Protection and Statistical Efficiency

  • Expands access to data while improving privacy standards

— Joe

Valparaiso School of Law won’t be admitting students next year

Earlier this week the public censure given to Valparaiso University School of Law for not being in compliance with admissions standards was removed by the council of the ABA’s Section of Legal Education and Admissions to the Bar. Do note that the school enrolled only 29 full-time incoming students in 2017. Now comes news that the law school is suspending Fall 2018 admissions, working to relocate students to other law schools, and exploring the possibility of affiliating with another law school or relocating the school for financial reasons. From yesterday’s press release:

Valparaiso University, a private university based in Northwest Indiana, today announced its Board of Directors directed the University’s Administration to continue to explore alternative possibilities related to the severe financial challenges facing its Law School. These alternative possibilities might include the possibility of affiliating the Law School with another existing law school, or relocating the Law School to another geographic market with perceived greater demand for legal education. Depending on the circumstances of such changes, approval of various accrediting organizations may be necessary.

— Joe

Weekend reading: Collusion: Secret Meetings, Dirty Money, and How Russia Helped Donald Trump Win

From the blurb for Luke Harding’s Collusion: Secret Meetings, Dirty Money, and How Russia Helped Donald Trump Win (Vintage, Nov. 16, 2017):

December 2016. Luke Harding, the Guardian reporter and former Moscow bureau chief, quietly meets former MI6 officer Christopher Steele in a London pup to discuss President-elect Donald Trump’s Russia connections. A month later, Steele’s now-famous dossier sparks what may be the biggest scandal of the modern era. The names of the Americans involved are well-known—Paul Manafort, Michael Flynn, Jared Kushner, George Papadopoulos, Carter Page—but here Harding also shines a light on powerful Russian figures like Aras Agalarov, Natalia Veselnitskaya, and Sergey Kislyak, whose motivations and instructions may have been coming from the highest echelons of the Kremlin.

Drawing on new material and his expert understanding of Moscow and its players, Harding takes the reader through every bizarre and disquieting detail of the “Trump-Russia” story—an event so huge it involves international espionage, off-shore banks, sketchy real estate deals, the Miss Universe pageant, mobsters, money laundering, poisoned dissidents, computer hacking, and the most shocking election in American history.

— Joe

Second set of articles of impeachment filed against President Trump

Congressman Steve Cohen (D-TN-09), the ranking member of the House Judiciary Subcommittee on the Constitution and Civil Justice, which has jurisdiction over impeachment matters, and four Democratic colleagues, introduced five articles of impeachment against President Donald J. Trump yesterday. The five articles are:

  • Article I – Obstruction of Justice
  • Article II – Violation of Article I, Section 9 of the U.S. Constitution – Foreign Emoluments
  • Article III – Violation of Article II, Section 1 of the U.S. Constitution – Domestic Emoluments
  • Article IV – Undermining the Independence of the Federal Judiciary and the Rule of Law
  • Article V – Undermining Freedom of the Press

Documentation:

End Note: LLB post on first articles of impeachment. — Joe

What is push research?

Back in the good old days of the 1980’s when I was a big law firm research librarian (instead of a bean-counting library administrator I have become), I would “push” or proactively supply attorneys resources unsolicited because I thought they may need the information for pending matters we had worked on together. Usually, the material provided was relevant and welcomed. “Push research” as explained by Casetext’s Jake Heller applies artificial intelligence to what amounts to be the electronic footprints of researchers to alert, update and supply resources to the end user sometimes unsolicited as I had done. By the sound of it, AI-engineered “push research” would perform a far better job of providing unsolicited pertinent information than the typical legal research librarian of the 1980s. On ATL, see Jake Heller, Push Research: How AI Is Fundamentally Changing The Way We Research The Law. Recommended. — Joe

Countdown to Day 301 under the Federal Vacancies Reform Act of 1998

Of 612 key positions requiring Senate confirmation, no candidate has been nominated by the Trump Administration for 259 positions according to the Washington Post-Partnership for Public Service tracker. Most, if not all, of these key advice and consent positions are occupied by acting officers. For many such situations, the Federal Vacancies Reform Act of 1998, 5 U.S. Code § 3345, limits the amount of time an acting officer may remain in his or her position. According to the CRS Legal Sidebar, Out of Office: Vacancies, Acting Officers, and Day 301 (Nov. 1, 2017 LSB10022):

A number of acting officers are currently filling vacancies that occurred during the presidential transition period. For those offices that were vacant on or shortly after Inauguration Day, the 210-day period, with the 90-day extension [under The Vacancies Act], will come to an end beginning sometime in November. If an acting officer remains in office beyond this 300-day period, and if the President has not submitted any nomination to that office, then the acting officer runs the risk of violating the Vacancies Act.

So if an acting officer was appointment on Jan. 20, 2017, then day 301 is November 17th. According to the CRS analysis here’s what can happen on Day 301:

On Day 301, whenever that day might occur for a particular office, the office would be designated vacant, for purposes of the Vacancies Act, and only the head of the agency would be able to perform the functions and duties of that vacant office. (If an office designated vacant under this provision is that of the agency head, it appears that no one can temporarily perform the functions and duties of that office under the Vacancies Act.) If the acting officer remains in office and attempts to perform a nondelegable function or duty—one that a statute or regulation expressly assigns to that office—that action will “have no force or effect.” In the words of the Supreme Court, it will be “void ab initio”: void from the beginning, as if the act had never been done. (There are a few specifically named offices that are exempt from this provision, but it is unclear what the consequences are if one of those offices is staffed by an acting officer serving in violation of the Vacancies Act.) Critically, the Vacancies Act also prohibits an agency from subsequently ratifying any void actions. This means that the agency can’t cure any violations by reissuing its decision through the proper processes.

For a detailed analysis, see The Vacancies Act: A Legal Overview (Oct. 30, 2017, R44997). — Joe

CRS analysis of federal court nominees rated “not qualified” by the ABA

From U.S. Circuit and District Court Nominees Who Received a Rating of “Not Qualified” from the American Bar Association: Background and Historical Analysis (Nov. 13, 2017 IN10814):

As of this writing, 49 individuals have been nominated by President Trump to U.S. circuit and district court judgeships and have also received a rating from the ABA. Of the 49, 4 (8.2%) received a rating of “not qualified,” 17 (34.7%) received a rating of “qualified,” and 28 (57.1%) received a rating of “well qualified” (including 11, or 78.6%, of 14 circuit court nominees who received a well qualified rating).

The number of nominees, as of this writing, who have received a not qualified rating during the Trump presidency is not notably high (when compared to the number of nominees who received such a rating over the entirety of each of the previous 11 presidencies).

What is distinctive, however, at least when compared to other presidencies, is that both a U.S. circuit court nominee and at least one district court nominee have received a rating of not qualified during President Trump’s first year in office (which last occurred in 1961 during the first year of the Kennedy presidency).

— Joe

ABA removes accreditation censure for Valparaiso University School of Law

The ABAJ is reporting that a public censure given to Valparaiso University School of Law for not being in compliance with admissions standards has been removed by the council of the ABA’s Section of Legal Education and Admissions to the Bar. The public censure was given to the law school in November 2016. It followed a New York Times story that reported that in Valparaiso’s class of 2015, only three out of 131 people had jobs with large law firms. Details here. — Joe

Restricting the first-use nuclear strike option by legislation

On January 24, 2017, identical versions of the Restricting First-Use of Nuclear Weapons Act of 2017 were introduced in both chambers of Congress: H.R. 669 and S. 200. See this LLB post. Earlier this month, CRS released two reports on the topic:

HT beSpacific. — Joe

Analyzing jury verdicts to evaluate litigation outcomes: A view from Thomson Reuters’ R&D team

Presented at the 16th International Conference on Artificial Intelligence and Law (2017), Jack Conrad and Khalid Al-Kofahi, both employed by Thomson Reuters, explain scenario analytics using the Company’s jury verdict and settlement databases. Here’s the abstract for their paper, Scenario Analytics – Analyzing Jury Verdicts to Evaluate Legal Case Outcomes:

Scenario Analytics is a type of analysis that focuses on the evaluation of different scenarios, their merits and their consequences. In the context of the legal domain, this could be in the form of analyzing large databases of legal cases, their facts and their claims, to answer questions such as: Do the current facts warrant litigation?, Is the litigation best pursued before a judge or a jury?, How long is it likely to take?, and What are the best strategies to use for achieving the most favorable outcome for the client? In this work, we report on research directed at answering such questions. We use one of a set of jury verdicts databases totaling nearly a half-million records. At the same time, we conduct a series of experiments that answer key questions and build, sequentially, a powerful data driven legal decision support system, one that can assist an attorney to differentiate more effective from less effective legal principles and strategies. Ultimately, it represents a productivity tool that can help a litigation attorney make the most prudent decisions for his or her client.

— Joe

 

ACLU and Yale Law School Clinic have standing to seek FISA court rulings on data collection

On Constitutional Law Prof Blog, Steven D. Schwinn reports that a sharply divided Foreign Intelligence Surveillance Court, sitting en banc for the first time in its history, ruled that the ACLU and Yale Law School’s Media Freedom and Information Clinic have standing to seek redacted portions of FISC rulings that set out the legal basis for a government bulk-data-collection program. He noted that the ruling [text] means that the movants’ efforts to obtain the rulings can move forward, although it does not say anything about the merits. — Joe

Removing a senator from Congress

Article I, Section 5, of the United States Constitution provides that “Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” According to the Senate’s Expulsion and Censure page, since 1789, the Senate has expelled only fifteen of its entire membership. Of that number, fourteen were charged with support of the Confederacy during the Civil War. In several other cases, the Senate considered expulsion proceedings but either found the member not guilty or failed to act before the member left office. In those cases, corruption was the primary cause of complaint.

According to the CRS report Recall of Legislators and the Removal of Members of Congress from Office (Jan. 5, 2012 RL30016), “While there are no specific grounds for an expulsion expressed in the Constitution, expulsion actions in both the House and the Senate have generally concerned cases of perceived disloyalty to the United States, or the conviction of a criminal statutory offense which involved abuse of one’s official position. Each house has broad authority as to the grounds, nature, timing, and procedure for an expulsion of a Member. However, policy considerations, as opposed to questions of authority, have appeared to restrain the Senate and House in the exercise of expulsion when it might be considered as infringing on the electoral process, such as when the electorate knew of the past misconduct under consideration and still elected or re-elected the Member.” — Joe

CRS report: Government Printing, Publications, and Digital Information Management: Issues and Challenges

From the summary of Government Printing, Publications, and Digital Information Management: Issues and Challenges (Nov. 8, 2017 R45014):

In light of the governance and technological changes of the past four decades, a relevant question for Congress might arise: To what extent can decades-old authorities and work patterns meet the challenges of digital government information? For example, the widespread availability of government information in digital form has led some to question whether paper versions of some publications might be eliminated in favor of digital versions, but others note that paper versions are still required for a variety of reasons. Another area of concern focuses on questions about the capacity of current information dissemination authorities to enable the provision of digital government information in an effective and efficient manner. With regard to information retention, the emergence of a predominantly digital FDLP may raise questions about the capacity of GPO to manage the program given its existing statutory authorities.

These questions are further complicated by the lack of a stable, robust set of digital information resources and management practices like those that were in place when Congress last considered current government information policies. The 1895 printing act was arguably an expression of the state of the art standard of printing technology and provided a foundation which supported government information distribution for more than a century. By contrast, in the fourth or fifth decade of transitioning from the tangible written word to ubiquitous digital creation and distribution, the way ahead is not as clear, due in part to a lack of widely understood and accepted standards for managing digital information.

This report examines three areas related to the production, distribution, retention and management of government information in a primarily digital environment. These areas include
 the Joint Committee on Printing;
 the Federal Depository Library Program; and
 government information management in the future.

— Joe

Weekend reading: Brazile’s Hacks: The Inside Story of the Break-ins and Breakdowns That Put Donald Trump in the White House

From the blurb for Donna Brazile’s Hacks: The Inside Story of the Break-ins and Breakdowns That Put Donald Trump in the White House (Hachette Books, Nov. 7, 2017):

In the fallout of the Russian hacking of the Democratic National Committee–and as chaos threatened to consume the party’s convention–Democrats turned to a familiar figure to right the ship: Donna Brazile. Known to millions from her frequent TV appearances, she was no stranger to high stakes and dirty opponents, and the longtime Democratic strategist had a reputation in Washington as a one-stop shop for fixing sticky problems.

What Brazile found at the DNC was unlike anything she had experienced before–and much worse than is commonly known. The party was beset by infighting, scandal, and hubris, while reeling from a brazen and wholly unprecedented attempt by a foreign power to influence the presidential election. Plus, its candidate, Hillary Clinton, faced an opponent who broke every rule in the political playbook.

Packed with never-before-reported revelations about what went down in 2016, Hacks is equal parts campaign thriller, memoir, and roadmap for the future. With Democrats now in the wilderness after this historic defeat, Hacks argues that staying silent about what went wrong helps no one. Only by laying bare the missteps, miscalculations, and crimes of 2016, Brazile contends, will Americans be able to salvage their democracy.

Interesting. — Joe

Understanding and preserving sanctuary cities in the age of Trump

From the abstract of Understanding ‘Sanctuary Cities,’ Boston College Law Review, Forthcoming, by Christopher Lasch et al:

This Article is a collaborative project authored by law professors specializing in the intersection between immigration and criminal law. In it, we set forth the central features of the Trump administration’s mass deportation plans and his recently-announced campaign to “crack down” on “sanctuary cities.” We then outline the diverse ways in which localities have sought to protect their residents from deportation by refusing to participate in the Trump immigration agenda. Such initiatives include limiting compliance with immigration detainers, precluding participation in joint operations with the federal government, and preventing immigration agents from accessing local jails. Finally, we analyze the legal and policy justifications for sanctuary that local jurisdictions have advanced with increasing intensity since Trump’s election. These insights have important implications for how sanctuary cities are understood and preserved in the age of Trump.

As a complement to this Article, we have created a public online library of sanctuary policies that includes all the policies cited here and many more we considered in our research.

— Joe

Digital innovation benefits the 1% by giving rise to “winner-take-all” markets

Here’s the abstract for Dominique Guellec and Caroline Paunov’s Digital Innovation and the Distribution of Income (Nov. 2017 NBER Working Paper No. 23987):

Income inequalities have increased in most OECD countries over the past decades; particularly the income share of the top 1%. In this paper we argue that the growing importance of digital innovation – new products and processes based on software code and data – has increased market rents, which benefit disproportionately the top income groups. In line with Schumpeter’s vision, digital innovation gives rise to ”winner-take-all” market structures, characterized by higher market power and risk than was the case in the previous economy of tangible products. The cause for these new market structures is digital non-rivalry, which allows for massive economies of scale and reduces costs of innovation. The latter stimulates higher rates of creative destruction, leading to higher risk as only marginally superior products can take over the entire market, hence rendering market shares unstable. Instability commands risk premia for investors. Market rents accrue mainly to investors and top managers and less to the average workers, hence increasing income inequality. Market rents are needed to incentivize innovation and compensate for its costs, but beyond a certain level they become detrimental. Public policy may stimulate innovation by reducing ex ante the market conditions which favor rent extraction from anti-competitive practices.

— Joe

Sobering CRS report on US military options for a nuclear-armed North Korea

From The North Korean Nuclear Challenge: Military Options and Issues for Congress (Oct. 27, 2017 R44994):

North Korea’s apparently successful July 2017 tests of its intercontinental ballistic missile capabilities, along with the possibility that North Korea (DPRK) may have successfully miniaturized a nuclear warhead, have led analysts and policymakers to conclude that the window for preventing the DPRK from acquiring a nuclear missile capable of reaching the United States is closing. These events appear to have fundamentally altered U.S. perceptions of the threat the Kim Jong-un regime poses to the continental United States and the international community, and escalated the standoff on the Korean Peninsula to levels that have arguably not been seen since 1994.

A key issue is whether or not the United States could manage and deter a nuclear-armed North Korea if it were to become capable of attacking targets in the U.S. homeland, and whether taking decisive military action to prevent the emergence of such a DPRK capability might be necessary. Either choice would bring with it considerable risk for the United States, its allies, regional stability, and global order. Trump Administration officials have stated that “all options are on the table,” to include the use of military force to “denuclearize,”—generally interpreted to mean eliminating nuclear weapons and related capabilities—from that area.

In this report, CRS identifies seven possible options, with their implications and attendant risks, for the employment of the military to denuclearize North Korea. These options are
 maintaining the military status quo,
 enhanced containment and deterrence,
 denying DPRK acquisition of delivery systems capable of threatening the United States,
 eliminating ICBM facilities and launch pads,
 eliminating DPRK nuclear facilities,
 DPRK regime change, and
 withdrawing U.S. military forces.
These options are based entirely on open-source materials, and do not represent a complete list of possibilities. CRS cannot verify whether any of these potential options are currently being considered by U.S. and ROK leaders. CRS does not advocate for or against a military response to the current situation.

— Joe

ICIJ releases The Paradise Papers

On November 5th, the International Consortium of Investigative Journalists (ICIJ) released The Paradise Papers. The Paradise Papers documents include nearly 7 million loan agreements, financial statements, emails, trust deeds and other paperwork over nearly 50 years from inside Appleby, a prestigious offshore law firm with offices in Bermuda and beyond. Here’s the press release and jump page to various Paradise Papers investigations. – Joe

The Legal Problems (So Far) of Trump’s Deregulatory Binge

From the abstract for Lisa Heinzerling’s The Legal Problems (So Far) of Trump’s Deregulatory Binge, Harvard Law & Policy Review, Forthcoming:

In racing to upend a wide array of final rules issued in the Obama administration, the Trump administration has violated basic principles of administrative law. In delaying or suspending rules, agencies in the Trump administration have paid little attention to their legal constraints, failed to provide legally required process before their decisions, and offered flimsy reasoning for their choices. The administration, in other words, has put on the same display of autocracy, impulsivity, and jerry-rigged reasoning that has characterized Mr. Trump’s overall approach to the presidency. Within the constraints of administrative law that apply to such regulatory decisions, however, autocracy, impulsivity, and jerry-rigging are the very kinds of urges that get agencies into legal trouble.

This article examines the legal risks posed by the decision-making style exhibited by the Trump administration so far, with a focus on the administration’s decisions delaying or suspending rules issued by the Obama administration. These early decisions are worth studying for their own sake, as they put the brakes on rules aimed at addressing a broad range of social problems. The decisions are also important for the signals they send about how administrative agencies in the Trump era will go about their business. These early actions portend legal trouble for the administration’s deregulatory push. Agencies in this administration have delayed or suspended existing rules with little attention to legal authority, process, or reason giving, and in doing so have flouted basic requirements of administrative law. The courts have already begun to push back against the administration’s deregulatory binge.

— Joe

Just released, Sunstein’s Impeachment: A Citizen’s Guide

From the blurb for Harvard Law prof Cass Sunstein’s Impeachment: A Citizen’s Guide (Harvard UP, Oct. 30, 2017):

Cass R. Sunstein provides a succinct citizen’s guide to an essential tool of self-government. He illuminates the constitutional design behind impeachment and emphasizes the people’s role in holding presidents accountable. Despite intense interest in the subject, impeachment is widely misunderstood. Sunstein identifies and corrects a number of misconceptions. For example, he shows that the Constitution, not the House of Representatives, establishes grounds for impeachment, and that the president can be impeached for abuses of power that do not violate the law. Even neglect of duty counts among the “high crimes and misdemeanors” delineated in the republic’s foundational document. Sunstein describes how impeachment helps make sense of our constitutional order, particularly the framers’ controversial decision to install an empowered executive in a nation deeply fearful of kings.

With an eye toward the past and the future, Impeachment: A Citizen’s Guide considers a host of actual and imaginable arguments for a president’s removal, explaining why some cases are easy and others hard, why some arguments for impeachment have been judicious and others not. In direct and approachable terms, it dispels the fog surrounding impeachment so that Americans of all political convictions may use their ultimate civic authority wisely.

— Joe