From the abstract for Marc O. DeGirolami, The Traditions of American Constitutional Law (Notre Dame Law Review, Forthcoming):
This article identifies a new method of constitutional interpretation: the use of tradition to inform constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. The task is worth pursuing inasmuch as traditional interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditional interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditional interpretation seems all the more pressing to understand certain possible jurisprudential moves in the Court’s future.
The article concludes that when the Court interprets traditionally, it signals the presumptive influence of political, legal, or cultural practices of substantial duration for informing constitutional meaning. Traditional interpretation is thus constituted of three elements: (1) a focus on practices, rather than principles, as informing constitutional meaning; (2) a practice’s duration, understood as a composite of its age and continuity; and (3) a practice’s presumptive, but defeasible, interpretive influence. Traditional interpretation’s emphasis on practices that are given tangible form in a people’s lived experience suggests that it is preferable to speak about politically, legally, and culturally specific traditions rather than an abstracted concept of tradition. Hence, “the traditions of American constitutional law.”
The article identifies traditional interpretation as its own method; shows its prevalence and methodological consistency across the domains of constitutional interpretation; isolates and examines its constituent elements, comparing them against other prominent interpretive approaches; and infers and explains the justifications of traditional interpretation from the doctrinal deposit. While there may be some irony about a claim of novelty in an article about tradition, what this article identifies as new is not the invocation of tradition as such, but the isolation of a recurrent and consistent method—traditional interpretation—adopted by the Court across its interpretive work. It aims to bring to light an overlooked and yet frequently used interpretive practice, and to understand its structure, situation, and purpose within the Court’s constitutional doctrine.
The letter, by Attorney General William P. Barr, details the main findings of the special counsel’s two-year investigation into Russian interference in the 2016 presidential election.
From the abstract for Jennifer Nou, Civil Servant Disobedience (Chicago-Kent Law Review, Vol. 94, No. 2, 2019):
Bureaucratic resistance has long been a feature of the administrative state. What is striking is the extent to which it has become publicly defiant under the Trump Administration. Civil servants are openly flouting executive directives in their official capacity, despite strong norms to the contrary. The social practice raises both parallels and contrasts to civil disobedience by private citizens—meriting an analogous need for sustained scholarly debate about the phenomenon. This symposium article seeks to isolate civil servant disobedience conceptually and begin an exploration into its normative implications. In particular, it considers the ideal of a reciprocal hierarchy, whereby political appointees consult the expertise and experience of career staff as required by statute. This ideal may help to inform evaluations of civil servant disobedience as a form of bureaucratic process-perfection alongside other legitimating criteria. These factors, however, may also suggest that disobedience is often difficult to justify in practice.
From the summary of Congressional Access to the President’s Federal Tax Returns (LSB10275, Mar. 15, 2019)
The Chair of the House Ways and Means Committee is reportedly preparing to send a request to the Treasury Department’s Internal Revenue Service (IRS) to obtain President Trump’s federal tax returns. This request appears prompted by the President’s departure from the past practice of sitting presidents and presidential candidates voluntarily disclosing their recent tax returns. This Sidebar analyzes the ability of a congressional committee to obtain the President’s tax returns under provisions of the Internal Revenue Code (IRC); whether the President or the Treasury Secretary might have a legal basis for denying a committee request for the returns; and, if a committee successfully acquires the returns, whether those returns legally could be disclosed to the public.
In an Executive Order Thursday, President Trump sought to promote free inquiry and regulate student loans in higher education. Read the Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities.
For upper-level law students, law clerks, and attorneys, Paul D. Callister’s Field Guide to Legal Research (West Academic Publishing, Mar. 11, 2019) “is not another exhaustive treatise but a concise, working person’s guide to solving complex legal research problems. Much like a field guide, this book classifies problem types and matches them with appropriate legal research resources. It emphasizes “working the problem,” “problem typing,” and then application of problem types to the appropriate resources. Problems and exercises illustrate the application of constructs and techniques to particular situations. Coverage is much broader than in first-year legal research classes. The book includes problems based on government agencies, statistics, and even patent law. There are numerous “screen shots” and images to facilitate the learning process.” Recommended.
From the abstract for Lina Khan & David Pozen, A Skeptical View of Information Fiduciaries (Harvard Law Review, Vol. 133, 2019, Forthcoming):
The concept of “information fiduciaries” has surged to the forefront of debates on online platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad support and essentially zero critical pushback.
This Essay seeks to disrupt the emerging consensus by identifying a number of lurking tensions and ambiguities in the theory of information fiduciaries, as well as a number of reasons to doubt the theory’s capacity to resolve them satisfactorily. Although we agree with Balkin that the harms stemming from dominant online platforms call for legal intervention, we question whether the concept of information fiduciaries is an adequate or apt response to the problems of information insecurity that he stresses, much less to more fundamental problems associated with outsized market share and business models built on pervasive surveillance. We also call attention to the potential costs of adopting an information-fiduciary framework—a framework that, we fear, invites an enervating complacency toward online platforms’ structural power and a premature abandonment of more robust visions of public regulation.
On Politico, Seamus Hughes, deputy director of George Washington University’s Program on Extremism, calls out PACER: “I’m here to tell you that PACER—Public Access to Court Electronic Records—is a judicially approved scam. The very name is misleading: Limiting the public’s access by charging hefty fees, it has been a scam since it was launched and, barring significant structural changes, will be a scam forever.” Read The Federal Courts Are Running An Online Scam (Mar. 20, 2019) here.
Time’s Charlotte Alter profiles Alexandria Ocasio-Cortez, “the second most talked-about politician in America, after the President of the United States,” here.
From the abstract for Linda L. Berger and Eric Nystrom, A Rhetorical-Computational Analysis of Justice Antonin Scalia’s ‘Remarkable Influence’: The Unexpected Importance of Deceptively Unanimous and Contested Majority Opinions (Journal of Appellate Practice and Process, Vol. 20, No. 2, 2020, Forthcoming):
What constitutes judicial influence and how should it be measured? Justice Antonin Scalia was known for his memorable phrasing (“this wolf comes as a wolf,” “like a ghoul in a late-night horror movie”) and for being cited at a rate twice that of his colleagues. Justice Elena Kagan gave him credit for transforming “all of us” into statutory textualists and constitutional originalists. After his death, critics gave mixed reviews of the extent of his influence on the Supreme Court, other judges, law students, and the general public.
Curious about the broader role that rhetoric plays in judicial influence over time, we undertook a rhetorical-computational analysis of the 282 majority opinions written by Justice Scalia during his 30 years on the U.S. Supreme Court. Our analysis is the first to examine the full majority opinion output of a Supreme Court justice using a unique “medium data” approach that combines rhetorical coding with quantitative analysis relying on Shepard’s Citations and LexisNexis headnotes.
The results suggest that the frequency of citations by later courts to Justice Scalia’s majority opinions—one of the most-often-used proxies for influence—was not solely the result of his efforts to be persuasive and to wield influence. Instead, we found that Justice Scalia’s deceptively unanimous and contested majority opinions were over-represented in later citation counts compared with his truly unanimous and strong majority opinions. This over-representation indicates that later courts citing those opinions continued to disagree about the meaning or the application of the rules established in the majority opinion and were continuing to cite both the majority and the concurrence or dissent.
Our analysis further suggested that later courts appeared to select from among Justice Scalia’s statements in earlier opinions not only based on the rhetorical framing of the statement but also depending on the rhetorical context in which those later courts found themselves. Thus, federal appellate courts tended to discuss both rules and arguments more extensively while the lower federal courts and the state courts were somewhat more likely to simply follow the rules. Finally, our analysis indicated that higher citation counts over time coincided with rule statements that either created or contributed to lingering disputes about interpretation or application. That kind of sustained citation frequency likely is not the long-lasting influence Justice Scalia sought.
From the summary of Arms Control and Nonproliferation: A Catalog of Treaties and Agreements (RL33865, Mar. 18, 2019):
Arms control and nonproliferation efforts are two of the tools that have occasionally been used to implement U.S. national security strategy. Although some believe these tools do little to restrain the behavior of U.S. adversaries, while doing too much to restrain U.S. military forces and operations, many other analysts see them as an effective means to promote transparency, ease military planning, limit forces, and protect against uncertainty and surprise. Arms control and nonproliferation efforts have produced formal treaties and agreements, informal arrangements, and cooperative threat reduction and monitoring mechanisms.
Prosecutors with U.S. Attorney’s Office for the Southern District of New York publicly released hundreds of pages of search warrant applications and supporting material Tuesday related to the search of Michael Cohen’s work spaces and home in April 2018. The documents show that Special Counsel Robert Mueller’s office was investigating Cohen only a few months after President Donald Trump was sworn in to office. The special counsel’s look at Cohen’s emails began in July 2017, and revealed information that appears to have been later shared with Manhattan prosecutors. Read the documents here.
From the abstract for Paul M. Schwartz, Global Data Privacy: The EU Way (New York University Law Review, Vol. 94, 2019):
EU data protection law is playing an increasingly prominent role in today’s global technological environment. The cornerstone of EU law in this area, the General Data Protection Regulation (GDPR), is now widely regarded as a privacy law not just for the EU, but for the world. In the conventional wisdom, the EU has become the world’s privacy cop, acting in a unilateral fashion and exercising de facto influence over other nations through its market power. Yet, understanding the forces for convergence and divergence in data privacy law demands a more nuanced account of today’s regulatory environment.
In contrast to the established narrative about EU power, this Article develops a new account of the diffusion of EU data protection law. It does so through case studies of Japan and the United States that focus on how these countries have negotiated the terms for international data transfers from the EU. The resulting account reveals the EU to be both collaborative and innovative.
Finally, this Article identifies two overarching factors that have promoted the global diffusion of EU data protection law. The first such factor regards legal substance. Public discourse on consumer privacy has evolved dramatically, and important institutions and prominent individuals in many non-EU jurisdictions now acknowledge the appeal of EU-style data protection. Beyond substance, the EU has benefited from the accessibility of its omnibus legislative approach; other jurisdictions have been drawn to the EU’s highly transplantable legal model. In short, the world has weighed in, and the EU is being rewarded for its success in the marketplace of regulatory ideas.
Last Friday, President Trump vetoed H.J. Res. 46 that would have blocked his declaration of a national emergency to fund a wall along the southwestern border. Here’s the veto message.
From the abstract for Vicenç Feliú, Moreau Lislet: The Man Behind the Digest of 1808:
The Louisiana legal system is unique in the United States and legal scholars have been interested in learning how this situation came to pass. Most assume that the origin of this system is the Code Napoleon and even legal scholars steeped in Louisiana law have a hard time answering the question of the roots of the Louisiana legal system. This book solves the riddle through painstaking research into the life of Lois Moreau Lislet, the driving force behind the Digest of 1808.
From the Federal Register:
The U.S. Copyright Office is announcing the release of a public draft of an update to its administrative manual, the Compendium of U.S. Copyright Office Practices, Third Edition. The update has been released in draft form to give the public an opportunity to review and provide comments on the revisions. … The public draft of the update to the Compendium of U.S. Copyright Office Practices, Third Edition is available on the Office’s website at https://www.copyright.gov/comp3/draft.html
The Administrative Office of the U.S. Courts published its Judicial Business 2018 report. This year filings in the U.S. courts of appeals dropped 2 percent to 49,276. Total filings in the U.S. district courts increased 7 percent to 370,085 as civil case filings rose 6 percent to 282,936 and filings for criminal defendants grew 13 percent to 87,149. Petitions filed in the U.S. bankruptcy courts fell 2 percent to 773,375. The number of persons under post-conviction supervision went down 4 percent to 129,706. Cases opened in the pretrial services system climbed 13 percent to 99,931.
Miranda Perry Fleischer & Daniel Jacob Hemel have posted The Architecture of a Basic Income (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:
The notion of a universal basic income (“UBI”) has captivated academics, entrepreneurs, policymakers, and ordinary citizens in recent months. Pilot studies of a UBI are underway or in the works on three continents. And prominent voices from across the ideological spectrum have expressed support for a UBI or one of its variants, including libertarian Charles Murray, Facebook co-founder Chris Hughes, labor leader Andy Stern, and—most recently—former President Barack Obama. Although even the most optimistic advocates for a UBI will acknowledge that nationwide implementation lies years away, the design of a basic income will require sustained scholarly attention. This article seeks to advance the conversation among academics and policymakers about UBI implementation.
From the summary of Special Counsel Investigations: History, Authority, Appointment and Removal (R44857, Mar. 13, 2019):
The Constitution vests Congress with the legislative power, which includes authority to establish federal agencies and conduct oversight of those entities. Criminal investigations and prosecutions, however, are generally regarded as core executive
functions assigned to the executive branch. Because of the potential conflicts of interest that may arise when the executive branch investigates itself, there have often been calls for criminal investigations by prosecutors with independence from the executive branch.
In response, Congress and the U.S. Department of Justice (DOJ) have used both statutory and regulatory mechanisms to establish a process for such inquiries. These frameworks have aimed to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials.
From the blurb for Vicky Ward, Kushner, Inc.: Greed. Ambition. Corruption. The Extraordinary Story of Jared Kushner and Ivanka Trump (St. Martin’s Press, Mar. 19, 2019):
Jared Kushner and Ivanka Trump are the self-styled Prince and Princess of America. Their swift, gilded rise to extraordinary power in Donald Trump’s White House is unprecedented and dangerous. In Kushner, Inc., investigative journalist Vicky Ward digs beneath the myth the couple has created, depicting themselves as the voices of reason in an otherwise crazy presidency, and reveals that Jared and Ivanka are not just the President’s chief enablers: they, like him, appear disdainful of rules, of laws, and of ethics. They are entitled inheritors of the worst kind; their combination of ignorance, arrogance, and an insatiable lust for power has caused havoc all over the world, and may threaten the democracy of the United States.
Ward follows their trajectory from New Jersey and New York City to the White House, where the couple’s many forays into policy-making and national security have mocked long-standing U.S. policy and protocol. They have pursued an agenda that could increase their wealth while their actions have mostly gone unchecked. In Kushner, Inc., Ward holds Jared Kushner and Ivanka Trump accountable: she unveils the couple’s self-serving transactional motivations and how those have propelled them into the highest levels of the US government where no one, the President included, has been able to stop them.