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From the introduction to Presidential Terms and Tenure: Perspectives and Proposals for Change (R40864, Apr. 15, 2019):

The length of the President’s term and the question of whether Presidents should be eligible for reelection were extensively debated in 1787 at the Constitutional Convention. Late in the proceedings, the delegates settled on a four-year term for both President and Vice President but did not place a limit on the number of terms a President could serve.

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Attorney General William Barr issued an order Tuesday limiting immigration judges’ power to release asylum seekers from detention on bond, marking another step in the Trump administration’s efforts to keep migrants from coming to the United States. Under the ruling, certain immigrants cannot be released on bond and instead must remain in detention unless the Department of Homeland Security chooses to release them. Read the ruling, Matter of M-S-, Respondent, 27 I&N Dec. 509 (A.G., Apr. 16, 2019, here.

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From the abstract for Cass R. Sunstein, Ismism, Or Has Liberalism Ruined Everything? (2019):

There has been considerable recent discussion of the social effects of “liberalism,” which are said to include (among other things) a growth in out-of-wedlock childbirth, repudiation of traditions (religious and otherwise), a rise in populism, increased reliance on technocracy, inequality, environmental degradation, sexual promiscuity, deterioration of civic associations, a diminution of civic virtue, political correctness on university campuses, and a general sense of alienation. There is good reason for skepticism about these claims. Liberalism is not a person, and it is not an agent in history. Claims about the supposedly adverse social effects of liberalism are best taken not as causal claims at all, but as normative objections that should be defended on their merits. These propositions are elaborated with reference to three subordinate propositions: (1) liberalism, as such, does not lack the resources to defend traditions; (2) liberalism, as such, hardly rejects the idea of “constraint,” though the domains in which liberals accept constraints differ from those of antiliberals, and vary over time; (3) liberalism, as such, does not dishonor the idea of “honor.” There is a general point here about the difficulty of demonstrating, and the potential recklessness of claiming, that one or another “ism” is causally associated with concrete social developments.

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From the introduction to Can the President Close the Border? Relevant Laws and Considerations (LSB10283, Apr. 12, 2019):

Little federal case law addresses these questions. Although recent media articles discuss at least four occasions when past presidents have restricted operations at ports of entry on the southern border, those executive measures apparently did not
prompt legal challenges that required federal courts to assess the Executive’s authority for the measures.

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From the blurb for Robert Tsai, Practical Equality: Forging Justice in a Divided Nation (Norton, Feb. 2019):

A path-breaking account of how Americans have used innovative legal measures to overcome injustice—and an indispensable guide to pursuing equality in our time.

Equality is easy to grasp in theory but often hard to achieve in reality. In this accessible and wide-ranging work, American University law professor Robert L. Tsai offers a stirring account of how legal ideas that aren’t necessarily about equality at all—ensuring fair play, behaving reasonably, avoiding cruelty, and protecting free speech—have often been used to overcome resistance to justice and remain vital today.

Practical Equality is an original and compelling book on the intersection of law and society. Tsai, a leading expert on constitutional law who has written widely in the popular press, traces challenges to equality throughout American history: from the oppression of emancipated slaves after the Civil War to the internment of Japanese Americans during World War II to President Trump’s ban on Muslim travelers. He applies lessons from these and other past struggles to such pressing contemporary issues as the rights of sexual minorities and the homeless, racism in the criminal justice system, police brutality, voting restrictions, oppressive measures against migrants, and more.

Deeply researched and well argued, Practical Equality offers a sense of optimism and a guide to pursuing equality for activists, lawyers, public officials, and concerned citizens.

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Here is the abstract for Franita Tolson, The Spectrum of Congressional Authority Over Elections, 99 Boston University Law Review 317 (2019):

Congress routinely fails to articulate the source of authority pursuant to which it enacts federal statutes. This oversight forces the Supreme Court to sustain the constitutionality of these regulations based on powers that find no mention in the legislative record. The shortcomings of the record have not prevented the Court from interpreting congressional power quite broadly when a federal statute can be sustained as a lawful exercise of authority pursuant to more than one substantive constitutional provision. In the context of elections, however, the Court has been decidedly more opportunistic about whether it will examine the constitutionality of federal law within the broader spectrum of congressional authority.

In Shelby County v. Holder, for example, the Court held that section 4(b) of the Voting Rights Act of 1965 violated the equal sovereignty principle by forcing certain states to seek federal approval before implementing laws that they are otherwise constitutionally authorized to enact. Sections 4(b) and 5 suspended all changes to state election laws in covered jurisdictions, including nondiscriminatory voter qualification standards and procedural regulations that govern state elections. In prioritizing federalism over all other equally valid considerations, the Court ignored whether the Voting Rights Act was valid because congressional power could be derived, in part, from the Elections Clause. The Elections Clause gives Congress final policymaking authority over setting the times, places, and manner of federal elections. Unlike the Fourteenth and Fifteenth Amendments, a context in which the Court imposes some federalism limitations on the exercise of federal power, the Clause allows Congress to legislate without regard for state sovereignty.

The unique nature of the Elections Clause highlights the importance of applying a theoretical framework to Congress’s authority over elections that properly accounts for the presence of multiple, and sometimes conflicting, sources of federal power. Not only does the Clause allow the federal government to disregard state sovereignty, but the line between voter qualification standards, on one hand, and time, place, and manner regulations, on the other, is significantly more blurred than the caselaw indicates, resulting in the existence of hybrid regulations of uncertain constitutional mooring. This Article concludes that Congress’s sovereign authority under the Elections Clause is broad enough to reach restrictive and oppressive voter qualification standards that affect federal elections, a category that the Court has held falls squarely within the province of state authority. The uncertainty surrounding the boundaries of these regulations, as well as the presence of multiple sources of constitutional authority, means that, in some limited instances, Congress can aggressively police state action under the Elections Clause to protect the fundamental right to vote.

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For core legal search, consumers have two primary vendors to turn to, Lexis and Westlaw (WEXIS). “They have perpetuated a secret market of their own design, denying consumers the basic information needed to make informed purchasing decisions,” observed Feit Consulting in Optimizing Legal Information Pricing 2019 Update (“Feit”). We should emphasize “secret market” because Feit estimates that 15-25% of large law firms pay substantially more for core legal search than the rest of this market segment. Why? While consumers can compare the benefits and features of vendor products, comparison of available products based on pricing is not available because of WEXIS NDAs.

Not knowing the “going rate” – not knowing what similarly situated libraries are currently paying for Westlaw or Lexis, most negotiations start with one of two premises:

  1. that the renewal of vendor A is going to cost more than the last contract, but switching to vendor B will cost less than that, or
  2. kicking out vendor A temporarily without a replacement service will result in a lower price offer from vendor A in the not too distant future.

This is churning WEXIS. Churning WEXIS has become a necessity for many law libraries to control legal search costs since the Great Recession because leveraging WEXIS against each other for their core legal search product is the most effective way to obtain cost savings for enterprise search.

Feit Consulting advises “Evaluating and perhaps utilizing the sole provider option has become necessary for law firm administrators to effectively manage these costs. Because of the expense involved and the nature of the market, vendor choice should be re-evaluated in most contract cycles.” The same is true for many government law libraries. So once every three years or so, law firm and government libraries must not renew, or must threaten to not renew, their enterprise-wide search contract to achieve some savings while trying to achieve best in market pricing when market pricing is essentially unknowable. You make your deal and then live with it for a couple of years until it is time to churn again.

Is this the best way to conduct B2B commerce?

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President Trump’s appointment of the Commissioner of U.S. Customs and Border Protection to serve as Acting DHS Secretary violates the DHS succession act. House Homeland Security Committee Chair Bennie G. Thompson alerted the president to the problem in this April 8, 2019 letter. Quoting the provision, Thompson wrote:

“Notwithstanding chapter 33 of title 5, United States Code, the Under Secretary for Management shall serve as the Acting Secretary if by reason of absence, disability, or vacancy in office, neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary.”

H/T Constitutional Law Prof Blog.

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From the abstract for Matthew Sag, The New Legal Landscape for Text Mining and Machine Learning, Journal of the Copyright Society of the USA, Vol 66 (2019):

Individually and collectively, copyrighted works have the potential to generate information that goes far beyond what their individual authors expressed or intended. Various methods of computational and statistical analysis of text — usually referred to as text data mining (“TDM”) or just text mining — can unlock that information. However, because almost every use of TDM involves making copies of the text to be mined, the legality of that copying has become a fraught issue in copyright law in United States and around the world. One of the most fundamental questions for copyright law in the Internet age is whether the protection of the author’s original expression should stand as an obstacle to the generation of insights about that expression. How this question is answered will have a profound influence on the future of research across the sciences and the humanities, and for the development of the next generation of information technology: machine learning and artificial intelligence.

This Article consolidates a theory of copyright law should that I have advanced in a series of articles and amicus briefs over the past decade. It explains why applying copyright’s fundamental principles in the context of new technologies necessarily implies that copying expressive works for non-expressive purposes should not be counted as infringement and must be recognized as fair use. The Article shows how that theory was adopted and applied in the recent high-profile test cases, Authors Guild v. HathiTrust and Authors Guild v. Google, and takes stock of the legal context for TDM research in the United States in the aftermath of those decisions.

The Article makes important contributions to copyright theory, but is also integrates that theory with a practical assessment various interrelated legal issues that text mining researchers and their supporting institutions must confront if they are to realize the full potential of these technologies. These issues range from the enforceability of website terms of service, the effect of laws prohibiting computer hacking and the circumvention of technological protection measures (i.e., encryption and other digital locks), and cross-border copyright issues.

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From the European Commission press release:

Following the publication of the draft ethics guidelines in December 2018 to which more than 500 comments were received, the independent expert group presents today their ethics guidelines for trustworthy artificial intelligence.

Trustworthy AI should respect all applicable laws and regulations, as well as a series of requirements; specific assessment lists aim to help verify the application of each of the key requirements:

  • Human agency and oversight: AI systems should enable equitable societies by supporting human agency and fundamental rights, and not decrease, limit or misguide human autonomy.
  • Robustness and safety: Trustworthy AI requires algorithms to be secure, reliable and robust enough to deal with errors or inconsistencies during all life cycle phases of AI systems.
  • Privacy and data governance: Citizens should have full control over their own data, while data concerning them will not be used to harm or discriminate against them.
  • Transparency: The traceability of AI systems should be ensured.
  • Diversity, non-discrimination and fairness: AI systems should consider the whole range of human abilities, skills and requirements, and ensure accessibility.
  • Societal and environmental well-being: AI systems should be used to enhance positive social change and enhance sustainability and ecological responsibility.
  • Accountability: Mechanisms should be put in place to ensure responsibility and accountability for AI systems and their outcomes.

In summer 2019, the Commission will launch a pilot phase involving a wide range of stakeholders. Already today, companies, public administrations and organisations can sign up to the European AI Alliance and receive a notification when the pilot starts.

Following the pilot phase, in early 2020, the AI expert group will review the assessment lists for the key requirements, building on the feedback received. Building on this review, the Commission will evaluate the outcome and propose any next steps.

H/T InfoDocket.

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From Secrecy Blog: “The number of leaks of classified information reported as potential crimes by federal agencies reached record high levels during the first two years of the Trump Administration, according to data released by the Justice Department last week.

…

“But the data as released leave several questions unanswered. They do not reveal how many of the referrals actually triggered an FBI investigation. They do not indicate whether the leaks are evenly distributed across the national security bureaucracy or concentrated in one or more “problem” agencies (or congressional committees). And they do not distinguish between leaks that simply “hurt our country,” as the Attorney General put it, and those that are complicated by a significant public interest in the information that was disclosed.”

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From the LJ article, Deal or No Deal: Periodicals Price Survey 2019: “For the past decade, libraries have battled declining university budgets and increasing serials expenditures. With each Big Deal package renewal or cancellation, librarians and publishers have asked themselves: Did I make the best deal? Did I make the right deal? Recent developments in open access (OA) promise to bring major reform to academic publishing and, with that, new challenges and opportunities to the way that librarians and publishers choose to deal.”

The price survey indications that law periodicals increased 7% over last year’s pricing.