How technology could challenge our concept of law

Here’s the abstract for Warming Up to Inscrutability: How Technology Could Challenge Our Concept of Law by Brian Sheppard:

In the article, I describe the trajectory of legal technology and discuss how developments in that area might change the way that we think about the essential features of legality. In particular, I focus on the strengths and weaknesses of machine learning in the context of legislation and adjudication. I argue that the content of those essential features could depend upon our willingness to make tradeoffs between intelligibility and results. These tradeoffs might lead us to reject a concept that requires critical officials (Hart), reason-based tests of legitimacy (Raz), or deep justifications for coercion (Dworkin). I conclude that our concept of law will likely be shaped by our willingness to accept a growing disconnect between the way that we decide and the way that the system does. This is a pre-edit draft of an article.

Interesting. — Joe

Text of discussion draft of Senate health-care bill released

Here it is. — Joe

JSTOR Labs’ Reimagining the Digital Monograph

Here’s the abstract for the JSTOR Labs report, Reimagining the Digital Monograph: Design Thinking to Build New Tools for Researchers (June, 2017):

Scholarly books are increasingly available in digital form, but the online interfaces for using these books often allow only for the browsing of PDF files. JSTOR Labs, an experimental product-development group within the not-for-profit digital library JSTOR, undertook an ideation and design process to develop new and different ways of showing scholarly books online, with the goal that this new viewing interface should be relatively simple and inexpensive to implement for any scholarly book that is already available in PDF form. This paper documents that design process, including the recommendations of a working group of scholars, publishers, and librarians convened by JSTOR Labs and the Columbia University Libraries in October 2016. The prototype monograph viewer developed through this process—called “Topicgraph”—is described herein and is freely available online at https://labs.jstor.org/topicgraph.

— Joe

Digital library collaborations

Here’s the abstract for Anne Klinefelter’s Reader Privacy in Digital Library Collaborations: Signs of Commitment, Opportunities for Improvement, 13 I/S: J.L. POL’Y FOR INFO. SOC’Y 199 (2016):

Libraries collaborate to digitize collections large and small in order to provide information with fewer geographical, temporal, or socio-economic barriers. These collaborations promise economy of scale and breadth of impact, both for access to content and for preservation of decaying print source material. Some suggest this increased access to information through the digital environment comes at the expense of reader privacy, a value that United States librarians have advanced for nearly eighty years. Multiplying risks to digital reader privacy are said to weaken librarians’ commitment to privacy of library use and to overwhelm libraries’ ability to ensure confidential access to information. This article reviews some recent national and international organization statements on library privacy and finds continuing commitment to library privacy but varied approaches to balancing privacy with other goals and challenges in the digital environment. The article also evaluates privacy protections arising from libraries’ digital collaboration work with Google Books and the related HathiTrust project, and finds a number of vulnerabilities to confidential library use of these resources. These reviews confirm that reader privacy is increasingly at risk even as librarians’ confirm their commitment to protecting reader privacy through organizational statements. The article concludes that libraries can use their collaborative traditions to develop better approaches to protecting privacy as they develop digital collections. Even if libraries have limited success negotiating for or creating digital spaces for perfect digital reader privacy, much can be gained by making privacy an important feature of digital library design. Incremental but meaningful improvements can come from user authentication systems with privacy features, wider adoption of encryption, and innovations in website analytics tools. Reader privacy pressures and compromises are not new to libraries, and incremental solutions in the digital environment are worthy efforts that honor the tradition of libraries’ commitment to reader privacy.

— Joe

Fastcase appoints Steve Errick as Chief Operating Officer and announces plan to launch own imprint for secondary works

Yesterday Fastcase announced that former LexisNexis executive Steve Errick will join the company’s executive team on July 1 as Chief Operating Officer. He will be responsible for executing the company’s strategic vision, developing new editorial products, and developing the company’s organizational structure as the company expands. From the press release:

“We couldn’t be more excited to have Steve join the team,” said Fastcase CEO Ed Walters. “Fastcase is an increasingly complex company, with sophisticated legal data updating operations, multiple product lines and more than 100 employees in three offices – and we’re growing all the time. Steve’s deep relationships in the industry and his experience in managing legal publishing companies at scale will be important as we are becoming one of America’s largest legal tech companies.”

Fastcase also announced that it would begin editorial publishing starting in 2018 to expand the reach of its legal research service, which to date has focused exclusively on primary law such as case law, statutes, regulations, court rules, and constitutions. The company will launch it’s own imprint of expert treatises, secondary material, journals and partner with its various State Bar Associations in developing new state workflow products to serve the state practitioner markets.

“Early in my career at West, my challenge was finding the best authors,” Errick said. “Most recently at LexisNexis it was acquiring the best companies and building a product team to drive those businesses. And now, I get this wonderful opportunity to use these diverse experiences to help accelerate the pace of the most innovative company in legal tech.”

Sometime in the future, the hiring of Steve Errick will be viewed as the stimulus for taking Fastcase to the next level to compete with Thomson Reuters, LexisNexis and Bloomberg BNA. It is no coincidence that Fastcase’s press release announced both the hiring of Errick and the move into the secondary source market in 2018. — Joe

CRS report: Presidential Advisers’ Testimony Before Congressional Committees

From Presidential Advisers’ Testimony Before Congressional Committees: An Overview (Dec. 15, 2014 RL31351):

Congress has a constitutionally rooted right of access to the information it needs to perform its Article I legislative and oversight functions. Generally, a congressional committee with jurisdiction over the subject matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to information held by the executive branch in the absence of either a valid claim of constitutional privilege by the executive or a statutory provision whereby Congress has limited its constitutional right to information.

A congressional committee may request (informally or by a letter from the committee chair, perhaps co-signed by the ranking Member) or demand (pursuant to subpoena) the testimony of a presidential adviser. However, Congress may encounter legal and political problems in attempting to enforce a subpoena to a presidential adviser. Conflicts concerning congressional requests or demands for executive branch testimony or documents often involve extensive negotiations and may be resolved by some form of compromise as to, inter alia, the scope of the testimony or information to be provided to Congress.

— Joe

Legal constraints on presidential power

In Law and the President, 125 Harvard Law Review 1381 (2012), Richard Pildes explores the extent to which law constrains the exercise of presidential power, in both domestic and foreign affairs. Since the start of the twentieth century, the expansion of presidential power has been among the central features of American political development. Over the last decade, however, scholars across the political spectrum have argued that presidential powers have not just expanded dramatically, but that these powers are not effectively constrained by law. These scholars argue that law fails to limit presidential power not only in exceptional circumstances (times of crisis or emergency), but more generally; that unconstrained presidential power exists not just with respect to limited substantive arenas, such as foreign affairs or military matters, but across the board; and that statutes enacted by Congress, as well as the Constitution, fail to impose effective constraints. — Joe

The Congressional Oversight Manual

The Constitution grants Congress extensive authority to oversee and investigate executive branch activities. Towards that end, CRS developed the Congressional Oversight Manual over 30 years ago. The Manual was produced by CRS with the assistance of a number of House committee staffers. The constitutional authority for Congress to conduct oversight is designed to fulfill a number of purposes:

  • Ensure Executive Compliance with Legislative Intent
  • Evaluate Program Performance
  • Prevent Executive Encroachment on Legislative Prerogatives and Powers
  • Investigate Alleged Instances of Poor Administration, Arbitrary and Capricious Behavior, Abuse, Waste, Dishonesty, and Fraud
  • Assess Agency or Officials’ Ability to Manage and Carry Out Program Objectives
  • Review and Determine Federal Financial Priorities
  • Ensure That Executive Policies Reflect the Public Interest
  • Protect Individual Rights and Liberties

— Joe

Trump and trade agreements

On January 23, President Trump directed the United States Trade Representative to withdraw the United States as a signatory to the Trans-Pacific Partnership (TPP) agreement; the acting USTR gave notification to that effect on January 30. And on May 18, 2017, the Trump Administration sent a 90-day notification to Congress of its intent to begin talks with Canada and Mexico to renegotiate the North American Free Trade Agreement (NAFTA).

Two CRS Insight Reports cover the TPP and NAFTA developments: The United States Withdraws from the TPP (May 23, 2017, IN10646) and North American Free Trade Agreement: Notification for Renegotiation (May 19, 2017 IN10706). — Joe

Artificial intelligence and legal research instruction

Jamie J. Baker’s 2017 A Legal Research Odyssey: Artificial Intelligence as Disruptor discusses the current state of artificial intelligence as it applies to law. The article provides a background in current technological capabilities, shows how these capabilities are being used in various professions, including finance and medicine, and provides an overview of current natural language processing capabilities to discuss how the latest technological advances will realistically be applied to legal research. The article ultimately argues that law librarians must still infuse law students with sound legal research process and understanding so that they have the ability to confidently rely on algorithms in the face of various ethical duties. Here’s the abstract:

Cognitive computing is revolutionizing finance through the ability to combine structured and unstructured data and provide precise market analysis. It is also revolutionizing medicine by providing well-informed options for diagnoses. Analogously, ROSS, a progeny of IBM’s Watson, is set to revolutionize the legal field by bringing cognitive computing to legal research. While ROSS is currently being touted as possessing the requisite sophistication to perform effortless legal research, there is a real danger in a technology like ROSS causing premature disruption. As in medicine and finance, cognitive computing has the power to make legal research more efficient. But the technology is not ready to replace the need for law students to learn sound legal research process and strategy. When done properly, legal research is a highly creative skill that requires a deep level of analysis. Law librarians must infuse law students with an understanding of legal research process, as well as instruct on the practical aspects of using artificial intelligence responsibly in the face of algorithmic transparency, the duty of technology competence, malpractice pitfalls, and the unauthorized practice of law.

— Joe

CRS report: Obstruction of Congress

From the CRS report, Obstruction of Congress: A Brief Overview of Federal Law Relating to Interference with Congressional Activities (Nov. 5, 2010 RL34304):

Obstruction of justice is the frustration of governmental purposes by violence, corruption, destruction of evidence, or deceit. It is a federal crime. In fact, federal obstruction of justice laws are legion; too many for even passing reference to all of them in a single report. This is a brief description of those that outlaw interference with congressional activities.

See also Bradley J. Bondi, No Secrets Allowed: Congress’s Treatment and Mistreatment of the Attorney-Client Privilege and the Work-Product Protection in Congressional Investigations and Contempt Proceedings, 25 Journal of Law and Politics, No. 145 (2010)(“To the extent Congress refuses to accept a witness’s assertion of the attorney-client privilege or work-product protection during an investigation, this article explores avenues for challenging such an adverse determination and for resisting the disclosure of the confidential information in the face of contempt. The article concludes with a discussion of some practical ways an individual or entity subject to a congressional investigation may limit the extent of any subsequent waiver and minimize the harm caused by the release of the information.”) — Joe

OverDrive announces new cost-per-circulation pricing model

Late in 2017, Overdrive will launch a cost-per-circulation pricing model for eBooks and audiobooks that will enable libraries to provide a patron-driven acquisition model for select titles from OverDrive’s Marketplace catalog. When selecting a book under the cost-per circulation model, libraries will be charged only when a patron borrows a title. For more, see OverDrive’s blog post. — Joe

Where to find Trump trackers

From time to time LLB has featured Trump trackers in posts. Now Mick O’Leary has compilied an annotated list of Trump trackers arranged into the following categories: The First 100 Days, Daily Activities, Presidential Promises, Executive Actions, and Ethics Issues, as well as Tracking Tweets.

Recommended. — Joe

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

From the summary of the CRS report, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (May 12, 2017, RL34097):

Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, to punish the contemnor, and/or to remove the obstruction. Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in recent times the contempt power has most often been employed in response to non-compliance with a duly issued congressional subpoena—whether in the form of a refusal to appear before a committee for purposes of providing testimony, or a refusal to produce requested documents.

Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.

See also, Josh Chafetz, Executive Branch Contempt of Congress, 76 University of Chicago Law Review 1083 (2009). — Joe

BigLaw just saying no to representing Trump

In April, LLB reported on a client that fired a law firm that was representing Trump. See BigLaw firm fired for “enabling Trump” by representing him. Now, ATL’s Kathryn Rubio is reporting that “Brendan Sullivan of Williams & Connolly, Ted Olson of Gibson, Dunn & Crutcher, Paul Clement and Mark Filip of Kirkland & Ellis, and Robert Giuffra of Sullivan & Cromwell are all on the list of those who just said no to [representing] Trump.” — Joe

Taking the Fifth in Congressional investigations

On May 26, 2017, CRS issued a Legal Sidebar titled The Fifth Amendment in Congressional Investigations. Here’s a snip:

As a general matter, witnesses may invoke the Fifth Amendment privilege during a congressional investigation with regard to testimony or documents that are: (1) testimonial (“relate[s] a factual assertion”); (2) self-incriminating (any disclosures that tends to show guilt or that furnishes any “link in the chain of evidence” needed to prosecute); and (3) compelled (not voluntarily given). Oral testimony given pursuant to a subpoena and in response to committee questioning almost always qualifies as testimonial and compelled. Therefore, the central inquiry is typically whether the responsive testimony would be “incriminating.” The Supreme Court has taken a broad view of what constitutes incriminating testimony, holding that the privilege protects any statement “that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might so be used.” Even a witness who denies any criminal wrongdoing can refuse to answer questions on the basis that he might be “ensnared by ambiguous circumstances.”

H/T to beSpacific. — Joe

On the explanation problem for algorithms

In What does it mean to ask for an “explainable” algorithm?, Ed Felten discusses the explanation problem for algorithms in terms of (1) claims of confidentiality; (2) complexity; (3) unreasonableness; and (4) injustice. See Felten’s Freedom to Tinker blog post for details. — Joe

The Global Law Search Engine designed for legal information professionals, not just lawyers

Global-Regulation has launched the Global Law Search Engine, a fee-based service that can be test driven for free right now. The search service claims to be the most comprehensive currently available because one can “[s]earch, find and compare laws from 90 countries using a user-friendly search engine that is aimed at legal information professionals, not lawyers. Due note this important caveat: “Our service is entirely run by computer algorithms. Translations are not human-vetted. There may be inaccuracies in information due to our algorithmic extraction of information. Always consult the official source when making use of legal information.” FAQ here.

H/T to beSpacific. — Joe

House set to vote on the Financial CHOICE Act, H.R. 10, to repeal Dodd-Frank Act requirements

The House of Representatives is set to vote this week on The Financial CHOICE Act, H.R. 10, an extensive bill intended to rewrite the Dodd-Frank Act and roll back hundreds of other financial regulations. The Financial CHOICE Act in the 115th Congress: Selected Policy Issues (May 10, 2017, R44839) highlights major proposals included in the bill but is not a comprehensive summary. In general, H.R. 10 proposes changes that can be divided into two categories: (1) changes to financial policies and regulations and (2) changes to the regulatory structure and rulemaking process. See also, The Financial CHOICE Act (H.R. 10) and the Dodd-Frank Act (May 22, 2017, IN10695) and Systemically Important or “Too Big to Fail” Financial Institutions (Jan. 4, 2017, R42150).

The future of H.R. 10 in the Senate is uncertain. According to published reports, Senate Democrats are likely to mount a filibuster against it while Senate Republicans are expected to offer their own financial regulatory reform package. — Joe

Three states start the United States Climate Alliance to fulfill Paris Climate Agreement commitments

In the wake of the news that the US is withdrawing from the Paris Climate Agreement, Barak Obama called on states, cities and businesses to support and honor the terms of the Agreement: “even in the absence of American leadership; even as this Administration joins a small handful of nations that reject the future; I’m confident that our states, cities, and businesses will step up and do even more to lead the way, and help protect for future generations the one planet we’ve got.” Quoting from Obama slams Trump for leaving Paris climate agreement, Politico, June 1, 2017.

In a joint public statement, Washington state Governor Jay Inslee, California Governor Jerry Brown and New York Governor Andrew Cuomo announced the United States Climate Alliance’s formation as a means for some of the largest US state economies to fight back against the Trump administration’s plans to withdraw from the Paris Climate Agreement. The governors are inviting other states and cities to join the alliance as a means of fulfilling the nation’s prior commitment to the Paris agreement in defiance of Trump. Seven additional states — Colorado, Connecticut, Hawaii, Massachusetts, Oregon, Rhode Island and Virginia — plus 61 cities have already expressed support for the objectives of the Alliance. US mayors, governors vow to stick with Paris accord, CNN, June 1, 2017.

Doable if other states and cities join this alliance? Well, Art. 1, Sec. 10 of the Constitution forbids interstate “alliances” and requires Congress’s consent for interstate “compacts.” If triggered, would a Republican-controlled Congress approve? — Joe