Posts

by on

Kudos to Carl Malamud! The 11th Circuit appeals court has just overturned a lower court ruling and said that Georgia’s laws, including annotations, are not covered by copyright, and it is not infringing to post them online. From the opinion in Code Revision Commission v. Public.Resource.Org:

The OCGA annotations are created by Georgia’s legislative body, which has been entrusted with exercising sovereign power on behalf of the people of Georgia. While the annotations do not carry the force of law in the way that statutes or judicial opinions do, they are expressly given legal significance so that, while not “law,” the annotations undeniably are authoritative sources on the meaning of Georgia statutes. The legislature has stamped them “official” and has chosen to make them an integral part of the official codification of Georgia’s laws. By wrapping the annotations and the statutory text into a single unified edict, the Georgia General Assembly has made the connection between the two inextricable and, thereby, ensured that obtaining a full understanding of the laws of Georgia requires having unfettered access to the annotations. Finally, the General Assembly’s annual adoption of the annotations as part of the laws of Georgia is effected by the legislative process — namely bicameralism and presentment — that is ordinarily reserved for the exercise of sovereign power.

Thus, we conclude that the annotations in the OCGA are attributable to the constructive authorship of the People. To advance the interests and effect the will of the People, their agents in the General Assembly have chosen to create an official exposition on the meaning of the laws of Georgia. In creating the annotations, the legislators have acted as draftsmen giving voice to the sovereign’s will. The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all.

As a result, no valid copyright can subsist in these works.

by on

Reynen Court has convinced a dozen BigLaw firms to form a consortium focused on standardizing their needs for legal software including artificial intelligence and smart contracts. Once they’ve identified the needs, Reynen Court plans to develop the software these firms would benefit from. Their services automation platform will enable law firms to deploy a wide range of computing applications without exposing firm or client content to disparate third-party cloud environments. The start-up also hopes to accelerate inter-operability between and among legal technology applications.

by on

From the abstract to Presidential Norms and Article II, 131 Harv. L. Rev. 218 (2018), by Daphna Renan:

The nature of the presidency cannot be understood without reference to norms. The written provisions of our constitutional structure do not, by themselves, offer a sufficiently thick network of understandings to create a workable government. Rather, those understandings are supplied by norm-governed practices. Presidential power is both augmented and constrained by these unwritten rules. This Article offers a sustained account of the norm-based presidency. It maps out the types of norms that structure the presidency and excavates the constitutional functions that these norms serve, the substantive commitments that they supply, the decisional arenas where they apply, and the conditions that make some norms (relative to others) more or less fragile. Understanding these characteristics of an unwritten Article II helps to mark abnormal presidential behavior when it arises. It also brings into view core features of structural constitutionalism itself. Norms simultaneously settle constitutional duty for a time and orient contestation over what legitimate practice should be. Norms, however, cannot be understood in contrast to a fixed constitutional structure. Rather, norms bring into view the provisional nature of our constitutional order itself.

by on

Through a Lawyer’s Eyes: Data Visualization and Legal Epistemology (Mar. 8, 2018) by Vincenzo Zeno-Zencovich “aims at investigating the relationship between the law and its visual depiction, in the light of the growing use of vast amounts of data to represent social phenomena. Visual analytics and infographics are part of contemporary forms of representation and knowledge. To what extent can lawyers do – or should do – without them and what profit, instead, might they take from them?”

by on

Beginning in early 2019, the 60,000 members of the California Lawyers Association will have access to Fastcase according to this press release. This agreement brings Fastcase’s user population to 900,000 or approximately 70% of all licensed attorneys in the US.

Is Fastcase’s user population larger than Thomson Reuters? Larger than LexisNexis? Bloomberg Law? Wolters Kluwer? Can’t prove it but I think Fastcase is the largest legal search vendor by user population. With duopolies in both the general law market (Thomson Reuters and LexisNexis) and the speciality law market (Bloomberg Law and Wolters Kluwer), Fastcase is poised for a breakthrough.

For  some context, see Fastcase Rising on LLB.

by on

Mother Jones reports “Washington’s state Supreme Court has ruled that it’s unconstitutional to sentence teen offenders to life in prison without parole because their brains are less developed than those of adult offenders, arguing that they should be granted a second chance because of their potential for growth.

“The 5-4 decision on Thursday comes one week after the court abolished the death penalty in the state. Washington is now one of at least 21 states, along with the District of Columbia, that ban life-without-parole punishments for crimes committed by people under the age of 18.”

by on

From the abstract for Presidential Attacks on the Press, Missouri Law Review, Forthcoming, by Sonja West:

President Donald Trump’s habit of hurling invectives at the press is disturbing. It undermines the work of the press and breaks long-standing norms that presidents show respect for the role of the Fourth Estate. But insults alone rarely raise First Amendment issues. Presidents have long used the bully pulpit to respond to or criticize news reports. Even Trump’s near daily verbal assaults on reporters and news organizations can be considered part of our country’s “uninhibited, robust, and wide-open” marketplace of ideas. Presidents have opinions too, and journalists should be able to handle his rants.

Yet there are also times when Trump’s lashing out at the press go beyond mere name-calling, and he instead attempts to use the power of his presidency to punish or silence press organizations that displease him. In these instances, Trump is unsheathing an entirely different kind of weapon. When a president crosses the line from insulting the press to turning the wheels of government as a means to retaliate against news organizations for their reporting, the potential First Amendment violations become very real.

The goals of this short Article are modest. It seeks simply to differentiate the various ways Trump has attacked the press, to emphasize that we should not view them all through the same constitutional lens, and to bring attention to the most serious type of offense. Unsurprisingly, it is Trump’s attempts to employ the power of the federal government to retaliate against the press that raise the most troubling constitutional concerns.

by on

From the blurb for The Perfect Weapon: War, Sabotage, and Fear in the Cyber Age (Crown, June 19, 2018) by David E. Sanger:

The Perfect Weapon is the startling inside story of how the rise of cyberweapons transformed geopolitics like nothing since the invention of the atomic bomb. Cheap to acquire, easy to deny, and usable for a variety of malicious purposes—from crippling infrastructure to sowing discord and doubt—cyber is now the weapon of choice for democracies, dictators, and terrorists. Two presidents—Bush and Obama—drew first blood with Operation Olympic Games, which used malicious code to blow up Iran’s nuclear centrifuges, and yet America proved remarkably unprepared when its own weapons were stolen from its arsenal and, during President Trump’s first year, turned back on the US and its allies. The government was often paralyzed, unable to threaten the use of cyberweapons because America was so vulnerable to crippling attacks on its own networks of banks, utilities, and government agencies.

by on

Stephen McAllister got interested in the family trees of Supreme Court Justices after finding three Justice-to-Justice family relations. “I began wondering whether there were other familial relations — either between Justices themselves or between Justices and other prominent people — that might be interesting to explore.” For the results of his research see the Green Bag article, The Supreme Court and Superman: The Justices and the Famous People in Their Family Trees. Superman?! Read more about it.

by on

On June 8, 2018, New York Legal Assistance Group (NYLAG) submitted a request under the Freedom of Information Act to the Board of Immigration Appeals (BIA), requesting that the BIA make all of its unpublished decisions since 1996 publicly available in an electronic format under 5 U.S.C. § 552(a)(2) as the BIA’s decisions, whether published or unpublished, are “final opinions” and “orders” of the agency. EOIR denied NYLAG’s request, and NYLAG submitted an administrative appeal. On October 17, 2018, after EOIR and the BIA failed to respond by the statutory deadline, NYLAG filed suit in the U.S. District Court for the Southern District of New York, represented by attorneys at Public Citizen Litigation Group and NYLAG. NYLAG contends that the BIA’s failure to make its unpublished decisions publicly available in an electronic format violates FOIA or, in the alternative, the Administrative Procedure Act. Here’s the text of the complaint.

by on

The Washington Supreme Court has found the death penalty to be unconstitutional because it violates the state constitution, specifically Article 1, Section 14, which states, “[e]xcessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.” From the opinion in State v. Gregory, No. 88086-7 (Wash. Oct. 11, 2018):

“The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered. As noted by appellant, the use of the death penalty is unequally applied—sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution.”

For an analysis, see this blog post by Reba Kennedy.

by on

5G is coming to a compatiable device near you. On October 1, Verizon launched the first 5G network providing 5G home service in Houston, Indianapolis, Los Angeles and Sacramento. AT&T and other carriers will start to launch 5G networks within a year. But what exactly is 5G? For background, see one or more of the below backgrounders.

by on

From the abstract for Nancy J. White, Legal Analysis: There’s a Template for that! 2 ALSB Journal of Business Law & Ethics Pedagogy ___ (Forthcoming):

Legal analysis is often one of the more difficult skills to teach undergraduate and first-year law students. This skill, related to what is called “legal frame working” in law school, is needed by law students and lawyers, to analyze legal issues and requires the user of the legal framework to have a detailed understanding of the law. This same level of skill is not taught at the undergraduate level, but a basic understanding increases critical thinking and helps undergraduate students conceptualize how the law is used. This paper describes a simplified method for introducing the skill of legal analysis to undergraduate students and first-year law students using a legal analysis template developed by the author.

H/T beSpacific

by on

From the abstract for Deborah N. Archer, Political Lawyering for the 21st Century, Denver Law Review (Forthcoming):

Legal education purports to prepare the next generation of lawyers capable of tackling the urgent and complex social justice challenges of our time. But law schools are failing in that public promise. Clinical education offers the best opportunity to overcome those failings by teaching the skills lawyers need to tackle systemic and interlocking legal and social problems. But too often even clinical education falls short: it adheres to conventional pedagogical methodologies that are overly narrow and, in the end, limit students’ abilities to manage today’s complex racial and social justice issues. This article contends that clinical education needs to embrace and reimagine political lawyering for the 21st century in order to prepare aspiring lawyers to tackle both new and chronic issues of injustice through a broad array of advocacy strategies.

H/T beSpacific.

by on

From the introduction to Global Trends in Democracy: Background, U.S. Policy, and Issues for Congress (R35344, Oct. 17, 2018): “Widespread concerns exist among analysts and policymakers over the current trajectory of democracy around the world. Congress has often played an important role in supporting and institutionalizing U.S. democracy promotion, and current developments may have implications for U.S. policy, which for decades has broadly reflected the view that the spread of democracy around the world is favorable to U.S. interests.”

by on

From the EFF report: “the Federal Circuit has changed its policies to give the public immediate access to briefs. Previously, the court had marked submitted briefs as “tendered” and withheld them from the public pending review by the Clerk’s Office. That process sometimes took a number of days. EFF wrote a letter asking the court to make briefs available as soon as they are filed. The court has published new procedures that will allow immediate access to submitted briefs.”