CRS produces primer of domestic terrorism

The FBI defines domestic terrorism as acts of violence that violate the criminal laws of the United States or any state, committed by individuals or groups without any foreign direction, and appear to be intended to intimidate or coerce a civilian population, or influence the policy of a government by intimidation or coercion, and occur primarily within the territorial jurisdiction of the United States. Domestic Terrorism: An Overview (Aug. 21, 2017 R44921) is a detailed primer on the topic. — Joe

Archive of Copyright Office briefs and legal opinions now online

Under the Copyright Act, the Copyright Office is responsible for advising on certain questions of copyright law. This advice manifests itself in many forms. For instance, based on advice received from the Office, the Department of Justice files briefs in federal court on behalf of the federal government on issues of copyright law. In addition, the Copyright Office issues binding opinions on questions of copyright law to the Copyright Royalty Board. The Copyright Office has now published an archive of its briefs and legal opinions, which the Office intends to keep updated.

H/T Gary Price’s InfoDocket post. — Joe

Top 100 law reviews based on historical USNWR data

H/T to Legal Skills Prof Blog for the tip to Bradley Areheart’s The Top 100 Law Reviews: A Reference Guide Based on Historical USNWR Data (Aug. 25, 2017). Here’s the abstract:

The best proxy for how other law professors react and respond to publishing in main, or flagship, law reviews is the US News and World Report (USNWR) rankings. This paper utilizes historical USNWR data to rank the top 100 law reviews. The USNWR rankings are important in shaping many – if not most – law professors’ perceptions about the relative strength of a law school (and derivatively, the home law review). This document contains a chart that is sorted by the 10-year rolling average for each school, but it also contains the 5-year and 15-year rolling averages. This paper also describes my methodology and responds to a series of frequently asked questions.

And the top 10 law schools based on USNWR data and sorted by 10-year rolling averages is

  1. Yale
  2. Harvard
  3. Stanford
  4. Columbia
  5. Chicago
  6. NYU
  7. Pennsylvania
  8. Berkeley
  9. Virginia
  10. Michigan

— Joe

Sanders introduces Medicare for All Act of 2017 (Text of the bill)

“This is a pivotal moment in American history,” wrote Sen. Bernie Sanders (I-VT) in his NYT think piece yesterday. “Do we, as a nation, join the rest of the industrialized world and guarantee comprehensive health care to every person as a human right? Or do we maintain a system that is enormously expensive, wasteful and bureaucratic, and is designed to maximize profits for big insurance companies, the pharmaceutical industry, Wall Street and medical equipment suppliers?” In his Medicare for All: Leaving No One Behind proposal, Sanders states that

Americans need a health care system that works for patients and providers. We need to focus our federal investments on training the health care providers. We need to ensure a strong health care workforce in all communities now and in the future. We need to build on the strength of the 50 years of success of the Medicare program. We need a health care system that significantly reduces overhead, administrative costs and complexity. We need a system where all people can get the care they need to maintain and improve their health when they need it regardless of income, age or socioeconomic status. We need a system that works not just for millionaires and billionaires, but for all of us.

Yesterday, Sanders introduced the Medicare for All Act of 2017 [text]. “Under this legislation, every family in America would receive comprehensive coverage, and middle-class families would save thousands of dollars a year by eliminating their private insurance costs as we move to a publicly funded program,” wrote Sanders in his NYT think piece. “The transition to the Medicare for All program would take place over four years. In the first year, benefits to older people would be expanded to include dental care, vision coverage and hearing aids, and the eligibility age for Medicare would be lowered to 55. All children under the age of 18 would also be covered. In the second year, the eligibility age would be lowered to 45 and in the third year to 35. By the fourth year, every man, woman and child in the country would be covered by Medicare for All. … Guaranteeing health care as a right is important to the American people not just from a moral and financial perspective; it also happens to be what the majority of the American people want. According to an April  poll by The Economist/YouGov, 60 percent of the American people want to ‘expand Medicare to provide health insurance to every American,’ including 75 percent of Democrats, 58 percent of independents and 46 percent of Republicans.”

“To be clear: Sanders’ single payer plan has zero chance of passing through the Republican-controlled Senate. No GOP senator will vote for it and it’s not at all clear that many of the 10 Democrats up in 2018 in states that President Donald Trump won in 2016 will either,” predicted CNN’s Chris Cillizza in How Bernie Sanders is taking over the Democratic Party. WaPo’s David Weigel concurred. — JH

Integrating PACER in the case method of instruction

Here’s the abstract for Teaching with PACER: Improving Understanding by Harnessing Transparency by George Kuney:

The article discusses teaching law school courses with the Public Access to Court Electronic Records (PACER) system and both student and instructor e-writing projects relating to that system.

The case method of instruction in its classic form does not capture the context and intricacies of bankruptcy practice, especially in United States Chapter 11 cases. What is often missing is the rich compilation of detail found in the mountain of filings that is a Chapter 11 case, whether large or small. These details often evidence the shifting loyalties, relationships, interests, and emotions of the participants. These dynamics are largely lost in even trial court decisions in the case, much less appellate opinions.

With the advent of national federal court adoption of the PACER system throughout the United States, however, a new resource for teaching has arrived. Over the last several years, I have been teaching Chapter 11 seminars that augment a text with a research project that uses PACER (or a similar service available in some large cases from the claims agents in the case) to provide access to the docket and substantially all the pleadings and other documents in the case. This research project allows students to research the background of the debtor company, examine what led it to seek relief under Chapter 11, and to follow the case to conclusion, through all its twists and turns, even if there are no appeals. Student reaction has been positive.

Interesting. — Joe

The constitutional cost of PACER’s per-page fee model

From the abstract for Stephen Schultze’s The Price of Ignorance: The Constitutional Cost of Fees for Access to Electronic Public Court Records, 106 Georgetown Law Journal __ (2018, Forthcoming):

This paper argues that the federal judiciary has erected a fee structure that makes public records practically inaccessible for many members of the public and for essential democratic purposes. The per-page fee model inhibits constitutionally protected activities without promoting equally transcendent ends. Through this fee system, the judiciary collects fees at ever-increasing rates and uses much of the revenue for entirely other purposes — in an era in which the actual cost of storing and transmitting digital records asymptotically approaches zero. PACER should be free.

This paper examines the public’s interest in free electronic access to federal court records, and consider the relative strength of legal and policy arguments to the contrary. Section I performs an accounting of the true costs of a free-access regime. Sub-section I.A. examines the monetary cost of providing electronic access. Sub-section I.B. considers the privacy costs to individuals who are identified in electronic court proceedings when digital records erase some of the “practical obscurity” that prevailed in a print-only era. Section II details the benefits of free electronic access to federal court records. Sub-section II.A. describes how this access benefits the public’s understanding of the law, whereas Sub-Section II.B outlines how free access enhances the transparency and legitimacy of the courts. Section III argues that, in the tradition of Richmond Newspapers v. Virginia, free access electronic to court records is a constitutionally necessary element of the structure of our modern judiciary.

Recommended. — Joe

A call for producing legal scholarship that has practical value

In Days of Future Past: A Plea for More Useful and More Local Legal Scholarship (2017), Frank Bowman “describes how the population explosion in American law schools during the 1990s and the simultaneous rise of the U.S. News rankings mania created a kind of tulip bubble in legal scholarship – a bubble that is rapidly, and properly, deflating. I make several concededly retrograde recommendations for dealing with a post-bubble world, including changing law school hiring practices to favor professors with more legal experience than has long been the fashion, assessing scholarship more by effect and less by placement, and devoting more of our scholarly attention to questions of state law and practice.” From the abstract:

These suggestions all flow from the basic premise that we should more consciously encourage, even if we do not limit ourselves to, producing legal scholarship that has practical value to legal and business professionals and to policy makers at every level of American government. That premise, in turn, is based on the conviction that a modestly more pragmatic approach to the scholarly project is good for society and is, in any case, a sensible response to the parlous state of the legal education industry.

NB: This paper is one of a set emerging from a conference on “The Fate of Scholarship in American Law Schools” at the University of Baltimore in late March 2016. The entire set will be published as a book by the Cambridge University Press.

— Joe

Search and seizure: law enforcement jurisdiction, international relations and the dark web

The use of hacking tools by law enforcement to pursue criminal suspects who have anonymized their communications on the dark web presents a looming flashpoint between criminal procedure and international law according to Ahmed Ghappour. In Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web, 69 Stanford Law Review ___ (April 2017). The practical reality of the underlying technologies makes it inevitable that foreign-located computers will be subject to remote searches and seizures. The result may well be the greatest extraterritorial expansion of enforcement jurisdiction in U.S. law enforcement history. From the abstract:

This Article examines how the government’s use of hacking tools on the dark web profoundly disrupts the legal architecture on which cross-border criminal investigations rest. These overseas cyberoperations raise increasingly difficult questions regarding who may authorize these activities, where they may be deployed, and against whom they may lawfully be executed. The rules of criminal procedure fail to regulate law enforcement hacking because they allow these critical decisions to be made by rank-and-file officials despite potentially disruptive foreign relations implications. This Article outlines a regulatory framework that reallocates decisionmaking to the institutional actors who are best suited to determine U.S. foreign policy and avoids sacrificing law enforcement’s ability to identify and locate criminal suspects who have taken cover on the dark web.

In Government Hacking to Light the Dark Web: What Risks to International Relations and International Law?, 70 Stanford Law Review Online 58 (2017), Orin Kerr and Sean D. Murphy challenge Ghappour’s framework in three ways. “First, it questions whether there are real international relations difficulties with the use of NITs to investigate Tor users engaged in criminal activities. Second, it questions whether government use of NITs to investigate crimes on the dark web violates international law. Third, it argues that the use of NITs on the dark web does not occur in a regulatory vacuum. We agree with Ghappour that government use of NITs raises significant technical, legal, and policy challenges. At the same time, we are unpersuaded that the threat to international relations caused by use of NITs to investigate criminal cases on the dark web is among them.” — Joe

Russian-sourced Facebook ads focused on amplifying divisive messages

In An Update On Information Operations On Facebook, Alex Stamos, Chief Security Officer for Facebook noted that “the ads and accounts appeared to focus on amplifying divisive social and political messages across the ideological spectrum — touching on topics from LGBT matters to race issues to immigration to gun rights.”

HT to Gary Price’s InfoDocket post. — Joe

Two HLS profs writing books on impeachment

The Boston Globe is reporting HLS professor Laurence Tribe and his former student Joshua Matz have signed a deal to write a how-to book for impeaching the president. The book, called To End a Presidency: The Power of Impeachment, (Basic Books, May 22, 2018), will focus on the history of democracy’s ultimate sanction and a guide to using it right now. Here’s the blurb:

To End a Presidency addresses one of today’s most urgent questions: when and whether to impeach a president. Laurence Tribe and Joshua Matz provide an authoritative guide to impeachment’s past and a bold argument about its proper role today. In an era of expansive presidential power and intense partisanship, we must rethink impeachment for the twenty-first century.

Beating Tribe to the punch, HLS professor Cass Sunstein’s Impeachment: A Citizen’s Guide (Harvard UP, 2017) is scheduled to be published on October 7, 2017. Here’s the blurb:

Cass R. Sunstein provides a succinct citizens’ guide to an essential tool of self-government. He illuminates the constitutional design behind impeachment and emphasizes the people’s role in holding presidents accountable. Despite intense interest in the subject, impeachment is widely misunderstood. Sunstein identifies and corrects a number of misconceptions. For example, he shows that the Constitution, not the House of Representatives, establishes grounds for impeachment, and that the president can be impeached for abuses of power that do not violate the law. Even neglect of duty counts among the “high crimes and misdemeanors” delineated in the republic’s foundational document. Sunstein describes how impeachment helps make sense of our constitutional order, particularly the framers’ controversial decision to install an empowered executive in a nation deeply fearful of kings.

With an eye toward the past and the future, Impeachment: A Citizen’s Guide considers a host of actual and imaginable arguments for a president’s removal, explaining why some cases are easy and others hard, why some arguments for impeachment have been judicious and others not. In direct and approachable terms, it dispels the fog surrounding impeachment so that Americans of all political convictions may use their ultimate civic authority wisely.

— Joe

A taxonomy for tax loopholes

From the abstract of Heather Field’s A Taxonomy for Tax Loopholes, 55 Houston Law Review __, 2018 Forthcoming:

[T]his article demonstrates that people have widely divergent views about what tax loopholes are. Thus, people criticizing loopholes often talk past each other and engage in the tax equivalent of schoolyard name-calling. The response to this problem is not, however, to try to define the concept of “tax loopholes” with precision. Such an endeavor is pointless. Instead, this article provides a taxonomy for translating the rhetoric of “tax loopholes” into meaningful tax policy discourse. This taxonomy posits that any reference to a “tax loophole” should be understood in two dimensions — the tax policy objection and the target of the criticism. Using numerous examples from the popular/political discourse and the academic literature, this article catalogs alternatives on each dimension. Categorizing any purported “tax loophole” using this taxonomy provides a more productive framing of whatever critique is implied by any use of the “loophole” label, thereby enabling the elevation of the quality of the conversation about the individual tax preference. This taxonomy may be particularly useful now, as our political leaders embark on efforts to reform the tax law, because the taxonomy can help us better understand and advance the debate that will certainly surround those reform efforts.

Interesting. — Joe

New York v. Trump: Text of attorneys general complaint in DACA lawsuit

Democratic attorneys general filed the suit Wednesday in retaliation to the administration’s announcement a day earlier that it would end the program created by former President Barack Obama, unless Congress provided a legislative fix by March 2018. From the text of the complaint for declaratory and injunctive relief:

The States of New York, Massachusetts, Washington, Connecticut, Delaware, District Of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia (the “States”) bring this action to protect the States—including their residents, employers, regulatory systems, and educational institutions—against the illegal actions of the President and the federal government.

Ending DACA, whose participants are mostly of Mexican origin, is a culmination of President’s Trump’s oft-stated commitments—whether personally held, stated to appease some portion of his constituency, or some combination thereof—to punish and disparage people with Mexican roots. The consequence of the President’s animus-driven decision is that approximately 800,000 persons who have availed themselves of the program will ultimately lose its protections, and will be exposed to removal when their authorizations expire and they cannot seek renewal.

— Joe

Gerrymandering: CRS report on congressional redistricting law

From the introduction of Congressional Redistricting Law: Background and Recent Court Rulings, Mar. 23, 2017 R44798: “In addition to various state processes, the legal framework for congressional redistricting involves constitutional and federal statutory requirements. Interpreting these requirements, in a series of cases and evolving jurisprudence, the U.S. Supreme Court has issued rulings that have significantly shaped how congressional districts are drawn and the degree to which challenges to redistricting plans may succeed. As the 2020 round of redistricting approaches, foundational and recent rulings by the Court regarding redistricting are likely to be of particular interest to Congress. This report analyzes key Supreme Court and lower court redistricting decisions addressing four general topics: (1) the constitutional requirement of population equality among districts; (2) the intersection between the Voting Rights Act and the Equal Protection Clause; (3) the justiciability of partisan gerrymandering; and (4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions.” — Joe

Reporters Committee for Freedom of the Press and a coalition of 17 other media organizations file amicus brief in support of limiting fees for accessing PACER records

From the Sept. 6, 2017 press release:

On Tuesday, the Reporters Committee for Freedom of the Press and a coalition of 17 media organizations submitted a friend-of-the-court brief to the U.S. District Court for the District of Columbia in the case of National Veterans Legal Services Program v. United States of America. The brief argues that the law requires the judicial system to limit the fees it charges people to access its Public Access to Court Electronic Records (PACER) system to the cost of disseminating the information requested. Currently, many members of the media face prohibitive costs when trying to obtain court records to inform the public about what is happening in the judicial system.

Text of amicus brief. — Joe

Access to Broadband Networks: CRS report on the net neutrality debate

From the introduction to The Net Neutrality Debate: Access to Broadband Networks, August 15, 2017, R40616:

As congressional policymakers continue to debate telecommunications reform, a major discussion point revolves around what approach should be taken to ensure unfettered access to the Internet. The move to place restrictions on the owners of the networks that compose and provide access to the Internet, to ensure equal access and nondiscriminatory treatment, is referred to as “net neutrality.” While there is no single accepted definition of “net neutrality,” most agree that any such definition should include the general principles that owners of the networks that compose and provide access to the Internet should not control how consumers lawfully use that network, and they should not be able to discriminate against content provider access to that network.

— Joe

LexisNexis tests research assistant chatbot

Here’s how LN chief product officer Jamie Buckley described this development in this Venture Beat story.

“Something that we’re playing with in the lab, we actually have an internal chatbot where you can start asking it questions. It replies with either an answer or what it thinks might be what you’re looking for, and it also helps you filter the results,” Buckley said. “So you might get 100,000 results on the return, but it can help to understand where are some of the differences between the results and then ask you clarifying questions based on that.”

— Joe

Frequently asked DACA and DAPA program questions

From the Congressional Research Service:

From ImmigrationProf Blog: Resources on DACA

See also Text of Attorney General Sessions’ statement on rescinding DACA

— Joe

Three keys to artificial intelligence

Futurist Richard Worzel predicts that AI may lead to “the most dramatic technological revolution we have yet experienced – even greater than the advent of computers, smartphones, or the Internet.” To help understand what is happening, Worzel identifies and analyzes three keys to AI:

  1. AI is the Swiss Army knife of technology
  2. AI is not a shrink-wrapped product, and
  3. Once AI is properly established, the domino effects occur with astonishing speed.

For details, see Three Things You Need to Know About Artificial Intelligence. — Joe

Interfering in US foreign relations: Enforcement of the Logan Act

The Logan Act, codified at 18 U.S.C. § 953, states:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

“The Logan Act was intended to prohibit United States citizens without authority from interfering in relations between the United States and foreign governments. There appear to have been no prosecutions under the act in its more than 200-year history. … Although attempts have been made to repeal the act, it remains law and at least a potential sanction which could be used against anyone who without authority interferes in the foreign relations of the United States.” Quoting from Conducting Foreign Relations Without Authority: The Logan Act (March 11, 2015 RL33265). That CRS report was written at a time when interest in the Logan Act had been renewed as the result of a letter signed by 47 U.S. Senators to Iran suggesting that negotiations about a nuclear deal between the President and the Iranian leadership would be an executive agreement that another President or Congress would be able to abrogate.

In Nonenforcement by Accretion: The Logan Act and the Take Care Clause, Daniel B. Rice, (U.S. Court of Appeals for the D.C. Circuit) writes:

The Logan Act is a centuries-old law designed to bolster executive power. Yet Presidents have uniformly declined to don the statute’s vintage armor. Countless enforcement opportunities have yielded precisely zero prosecutions; the Act has ceased to function as law in any meaningful sense. A recent resurgence in Take Care Clause scholarship has overlooked this unparalleled passivity. Scholars agree that although Presidents may not refuse to enforce statutes on policy grounds, exercising prosecutorial discretion on a case-by-case basis is perfectly permissible. The Logan Act’s slow demise offers an important caveat: that laws can be nullified through the repeated use of individualized enforcement discretion. I call this previously unexplored phenomenon “nonenforcement by accretion.”

This Article contends that the gradual erasure of an entire statute presents a far greater threat to legislative policymaking supremacy than does the advance signaling of cabined enforcement priorities. I highlight the problem’s magnitude by chronicling Presidents’ refusal to remedy even archetypal Logan Act violations in the face of deafening enforcement demands. I then identify several forces driving the statute’s deterioration. The Article also shows that incremental nonenforcement cannot be easily analyzed under conventional Take Care Clause tests. In doing so, it unsettles the traditional distinction between policy-based nonenforcement and that anchored in constitutional objections. Finally, the piece argues that failing to enforce the Logan Act — a law that modern majorities would never enact — has in fact thwarted long-term democratic responsiveness.

— Joe

Downloads and abstract views: Applying bibliometrics to SSRN’s Legal Scholarship Network

In Legal Research in Search of Attention: A Quantitative Assessment, 27 King’s Law Journal 170 (2016) Mathias M. Siem writes

[T]he Social Science Research Network (SSRN) is a good platform to test which research is more or less appealing. In the study reported in this article, 1107 papers of SSRN’s Legal Scholarship Network were analysed in order to identify the main determinants of SSRN downloads, abstract views, and downloads per abstract views. This analysis fills a gap in the growing literature that deals with the impact of published research. It is also suggested that examining SSRN is important because its open nature reflects the general trend from offline publications in domestic journals to global availability of publications online.

Here’s the abstract:

In today’s world it is easy to make research publicly available by putting it online. But this improved availability raises the question how to produce research that actually gets attention. Bibliometrics can contribute to this debate. Based on a sample of 1107 papers of SSRN’s Legal Scholarship Network, this article finds that a short title, a top-20 university affiliation, US authorship, and writing about topics of corporate law and international law have a positive effect on downloads and/or abstract views. The article also reflects on the implications of these findings, in particular how they may be related to contentious attempts to identify what is “good” legal research through metrics and peer review.

— Joe