Announced Thursday, the Treasury Department enacted what amounts to the most stringent punishment yet by Trump for Russia’s election interference. The new sanctions, which include individuals indicted by the Special Counsel, finally met the Countering America’s Adversaries Through Sanctions Act’s mandate to impose measures punishing Moscow for its cyber intrusion.
For general background, see this CRS report — Overview of U.S. Sanctions Regimes on Russia (IN10634, July 11, 2017). — Joe
From the blurb for Fastcase: The Definitive Guide (ABA (2018) by Brian Huddleston:
The days when lawyers could run up hundreds or thousands of dollars in expenses from one of the “big three” legal research services and bill those amounts to their clients are long gone. And, as any lawyer knows, time is money. If you’re a lawyer using Fastcase, you already know how to use your legal research budget and your time efficiently. This book will help you put Fastcase and your valuable time to even better use. It will also show you some features you didn’t even know it had.
If you’re new to Fastcase, get ready to learn how to use this invaluable legal research tool and work with the variety of resources it gives you, from case law to statutes, regulations, and more. More than 25 state bar associations now provide Fastcase to their members; if yours is one of them (or if you have your own subscription) you can’t be without this helpful guide!
Recommended for all Fastcase users. — Joe
Learn about the change agents, community builders, digital developers, educators and innovators here. — Joe
From Dieter Zinnbauer’s Information Wants to Be Expensive, Not Free! And this is Bad for Justice, Democracy, the Economy (Mar. 1, 2018):
This essay is rather speculative. I argue that there is a very much overlooked characteristic of information goods, particularly digital information goods – that leads to a substantive, yet rarely discussed market failure with far-reaching consequences for important classes of information related to our education and research system, the judiciary, markets and democracy at large.
This overlooked feature is the positionality of many information goods. Positionality means that the utility of a specific information item for user x depends on the level of consumption of the same item by other users. Specific types of information are more valuable (or at times only valuable), when they are very exclusively available only to a small band of users. Or more intuitively, the fewer other people have a specific piece of information at a given point in time, the more valuable it may be to me.
Surprisingly, this simple characteristic is rarely discussed in the information literature or perhaps seems just too obvious to merit deeper analysis. Yet, as I will try to show, the positionality of information has far-reaching implications for the functioning of information markets and for the actual incentive systems of different players that all too often seem to be mis-construed as overly pro-social. And putting a focus on positionality also highlights the relevance and urgency for revisiting related regulatory policies, in order to ponder possible corrective interventions to tackle the ensuing informational imbalances and exclusive practices that positionality-oriented pricing structures for such information will generate.
Recommended. — Joe
Here’s the blurb for Russian Roulette: The Inside Story of Putin’s War on America and the Election of Donald Trump (Twelve, Mar. 13, 2018) by Michael Isikoff and David Corn:
RUSSIAN ROULETTE is a story of political skullduggery unprecedented in American history. It weaves together tales of international intrigue, cyber espionage, and superpower rivalry. After U.S.-Russia relations soured, as Vladimir Putin moved to reassert Russian strength on the global stage, Moscow trained its best hackers and trolls on U.S. political targets and exploited WikiLeaks to disseminate information that could affect the 2016 election.
The Russians were wildly successful and the great break-in of 2016 was no “third-rate burglary.” It was far more sophisticated and sinister — a brazen act of political espionage designed to interfere with American democracy. At the end of the day, Trump, the candidate who pursued business deals in Russia, won. And millions of Americans were left wondering, what the hell happened? This story of high-tech spying and multiple political feuds is told against the backdrop of Trump’s strange relationship with Putin and the curious ties between members of his inner circle — including Paul Manafort and Michael Flynn — and Russia.
RUSSIAN ROULETTE chronicles and explores this bizarre scandal, explains the stakes, and answers one of the biggest questions in American politics: How and why did a foreign government infiltrate the country’s political process and gain influence in Washington?
Recommended. — Joe
ABA Formal Opinion 480 concludes that lawyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules. — Joe
Above the Law wants to know because it is conducting its March Madness poll about the best legal fiction. You have until Monday, March 19 at 9:00 a.m. Eastern to cast your votes here. — Joe
Two pending House resolutions would condemn and censure President Trump if passed. They are H.Res. 496 and H.Res. 700. From The Constitutionality of Censuring the President (Legal Sidebar 10096, Mar. 12, 2018): “While each house of Congress has authority to discipline its own Members through censure, congressional censure of the President is rare. For that reason, there seems to be a recurring question as to whether Congress has the constitutional authority to adopt such a measure at all. As discussed below, it would appear that Congress may censure the President through a simple (one chamber) or concurrent (two chamber) resolution, or other non-binding measure, so long as the censure does not carry with it any legal consequence.” — Joe
Here’s the abstract to Jennifer Mascott’s The Dictionary as a Specialized Corpus, B.Y.U. L. Rev., 2018 Forthcoming:
Scholars consider reliance on dictionary definitions to be the antithesis of objective, big-data analysis of ordinary meaning. This Article contests that notion, arguing that when dictionaries are treated as a specialized database, or corpus, they provide invaluable textured understanding of a term. Words appear in dictionaries both as terms being defined and as terms defining other words. Examination of every reference to a contested term throughout a dictionary’s definitional entries of other words may substantially benefit statutory and constitutional interpretation. Because dictionaries catalog language, their use as a specialized corpus provides invaluable insight into the ways a particular word is used in relation to terms throughout the English language. Such evidence provides a crucial interpretive launchpad, even for corpus-based researchers looking for a collection of possible word meanings to analyze in a database of ordinary-language documents.
Legal Research, Legal Reasoning and Precedent in Canada in the Digital Age, 48 Advocates’ Quarterly 1 (2018), by Jonathan de Vries “summarizes the existing Anglo-American scholarship on the interaction between legal media, legal reasoning and substantive law, and applies it to the context of Canadian law and Canada’s unique experience of print-based legal information. While Canada adopted the intellectual methods of a print-based legal system, it lagged behind in the establishment of print-based sources of legal information, with the result that the intellectual and institutional structures that derive from print media were nowhere near as entrenched in Canadian law as compared with other common law jurisdictions. Therefore, to whatever degree the transition to digital legal information poses a threat of disruption to a common law legal system, this disruptive effect will be more acute in Canada than in the United States or England.” — Joe
From the conclusion of Does Executive Privilege Apply to the Communications of a President-elect? (LSB10094, March 8, 2018):
Even if, for purposes of argument, the privilege is viewed as extending to certain communications between a President-elect and his transition staff, it nevertheless would seem arguable that the privilege may apply with less weight given that such an extension would appear to lack the same direct grounding in the Constitution that characterizes the privilege for incumbent Presidents. Courts have previously identified a variety of situations in which covered communications receive diminished protections; for example, after significant time has passed, when the incumbent president does not support the assertion of a former president, or where the President has made public disclosures about the communications. If this reasoning were adopted, it would likely influence the weight a reviewing court would accord to the President-elect’s “confidentiality interests” when balancing those interests against Congress’s need for the communications as part of a congressional investigation.
Recently AALL members learned that our association’s executive director is resigning after 11 years at the helm. Kate Hagan is leaving at the end of this fiscal year in September. A search committee chaired by Gail Warren, a former AALL treasurer, who also served as a member of the search committee that selected Kate Hagan for the job in 2007, has been formed. Will the Executive Board once again hire an association professional? Should it?
Whether the executive director should be a librarian or an association professional has been the subject of much debate within ALA recently. For nearly a century, every ALA executive director has been a credentialed librarian. In November, this changed when the ALA Council replaced the requirement by stating that a library degree is strongly preferred but not a required educational qualification for the executive director position. Some ALA members are opposed to the change and are trying to overturn the Council action by voting on a resolution to reverse the Council’s decision right now. Results will be announced on Wednesday, April 11th.
Prior to the current voting, ALA released a number of documents that framed the debate. Here’s one, ALA’s Pros/Cons Table which outlines the issues, issues that the reader can place in an AALL context with one caveat, AALL is a much, much smaller library association than ALA.
What candidate pool will yield the best available executive director for AALL? — Joe
The New Oral Argument: Justices as Advocates, 94 Notre Dame Law Review ___ (2019) by Tonja Jacobi and Matthew Sag “conducts a comprehensive empirical inquiry of 55 years of Supreme Court oral argument, showing that judicial activity has increased dramatically, in terms of words used, duration of speech, interruptions made, and comments proffered. The Court is asking no more questions of advocates; instead, the justices are providing conclusions and rebutting their colleagues. In addition, the justices direct more of their comments and questions to the side with whom they ultimately disagree. Furthermore, “losing” justices, be it ideological camps that are outnumbered on the Court or dissenters in specific cases, use oral arguments to push back against the dominant group, reasserting an opposing narrative through oral argument. These forms of judicial behavior constitute advocacy, rather than judging. These are not trends that have gradually emerged over time: rather, we predict and establish that oral arguments changed dramatically in 1995, in response to the rapidly growing political polarization in Congress and the public at large. Partisan division, anger at political opponents, and disappearing middle ground all affect not only political players, but shape how Supreme Court justices behave at oral argument, the one public part of the Court’s decision-making process.” — Joe
Above the Law reports that today’s U.S. News rankings leak comes to us courtesy of Mike Spivey of the Spivey Consulting Group, who broke the news. For the past several years, Spivey has obtained the law school rankings ahead of their official publication, and they are always accurate. — Joe
While the reported 150-page committee report is not yet available, the Committee has published a one-page summary here. According to the summary the draft report contains 40+ initial findings that describe:
- A pattern of Russian attacks on America’s European allies;
- Russian cyberattacks on U.S. political institutions in 2015-2016 and their use of social media to sow discord;
- A lackluster pre-election response to Russian active measures;
- Concurrence with the Intelligence Community Assessment’s judgments, except with respect to Putin’s supposed preference for candidate Trump;
- We have found no evidence of collusion, coordination, or conspiracy between the Trump campaign and the Russians;
- How anti-Trump research made its way from Russian sources to the Clinton campaign; and
- Problematic contacts between senior Intelligence Community officials and the media.
The Preamble’s Principal Place in Constitutional Law, 91 S. Cal. L. Rev. (Forthcoming), by John W. Welch and James Heilpern “argues that the Preamble to the Constitution of the United States of America deserves a place of primacy in constitutional law, in federal judicial decision-making, and in the nation’s civic discourse. The Preamble does more than set forth general, vague aspirations. It epitomizes the particular purposes behind the adoption of the Constitution that were desperately needed to repair and replace the faltering Articles of Confederation. The Preamble’s words were specifically and methodically chosen, both in the Preamble itself and often within the body of the Constitution. Based on their prompt affirmative vote, all members of the Constitutional Convention, which drafted the version of the Constitution that was submitted to the thirteen states for ratification, readily embraced the Preamble. Some delegates later stated explicitly that it should be used as the key to interpreting the Constitution, its meanings, intentions, purposes, and limitations. Indeed, it is doubtful that the Constitution would have been ratified without the text of the Preamble prominently standing at the top of the proposed document, and the Preamble occupied a dominant and valuable position at the head of constitutional analysis throughout the nineteenth century. In 1905, however, the United States Supreme Court decided the case of Jacobson v. Massachusetts. This case has been rarely discussed at any length and is only vaguely remembered. Perhaps somewhat unwittingly, the Court used language that has been understood to relegate the Preamble to a minor, insubstantial role: ‘Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.’ The Court then went on summarily to treat the Preamble as irrelevant to the case.”
Recommended. — Joe
Here’s the abstract for Adam Steinman’s Non-Majority Opinions and Biconditional Rules, Yale Law Journal Forum, Vol. 128 (Forthcoming):
In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court’s holding is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an if-then proposition (If A, then B) with its inverse (If Not-A, then Not-B).
Appellate courts on both sides of the circuit split that prompted the grant of certiorari in Hughes have overlooked the special features of biconditional rules. If the Supreme Court makes the same mistake, it could adopt a misguided approach that would unjustifiably create binding law without a sufficient consensus among the Justices involved in the precedent-setting case. This Essay identifies these concerns and proposes ways to coherently apply Marks to non-majority opinions that endorse biconditional rules.
Here’s the abstract for Aaron-Andrew P. Bruhl’s very interesting Statutory Interpretation and the Rest of the Iceberg: Divergences between the Lower Federal Courts and the Supreme Court, Duke Law Journal, Forthcoming:
This Article examines the methods of statutory interpretation used by the lower federal courts, especially the federal district courts, and compares those methods to the practices of the U.S. Supreme Court. This novel research reveals both similarities across courts and some striking differences. The research shows that some interpretive tools are highly overrepresented in the Supreme Court’s decisions while other tools are much more prevalent in the lower courts. Another finding, based on a study of forty years of cases, is that all federal courts have shifted toward more textualist tools in recent decades but that the shift was less pronounced as one moves down the judicial hierarchy.
The divergence between the interpretive practices of different federal courts has implications for both descriptive and normative accounts of statutory interpretation. On the descriptive side, most beliefs about statutory interpretation are based on the narrow and unrepresentative slice of judicial business conducted in the Supreme Court, and some of those beliefs turn out to be incorrect or incomplete as descriptions of statutory interpretation more generally. This research therefore substantially improves our understanding of the reality of judicial statutory interpretation. On the normative side, the results can advance scholarly and judicial debates over whether lower courts should do statutory interpretation differently than the Supreme Court and whether the Court’s interpretive methodology should be binding on lower courts. The Article’s findings also suggest that the teaching of statutory interpretation should take into account the distinctive practices of the lower courts, where the vast majority of legal work is done.
Recommended. — Joe