An excerpt from the blurb for The Threat: How the FBI Protects America in the Age and Terror of Trump (St. Martin’s Press, Dec. 4, 2018):

The Threat recounts in compelling detail the time between Donald Trump’s November 2016 election and McCabe’s firing, set against a page-turning narrative spanning two decades when the FBI’s mission shifted to a new goal: preventing terrorist attacks on Americans. But as McCabe shows, right now the greatest threat to the United States comes from within, as President Trump and his administration ignore the law, attack democratic institutions, degrade human rights, and undermine the U.S. Constitution that protects every citizen.

— Joe

From the abstract for Cary Coglianese & David Lehr, Transparency and Algorithmic Governance, Administrative Law Review, Forthcoming:

Machine-learning algorithms are improving and automating important functions in medicine, transportation, and business. Government officials have also started to take notice of the accuracy and speed that such algorithms provide, increasingly relying on them to aid with consequential public-sector functions, including tax administration, regulatory oversight, and benefits administration. Despite machine-learning algorithms’ superior predictive power over conventional analytic tools, algorithmic forecasts are difficult to understand and explain. Machine learning’s “black-box” nature has thus raised concern: Can algorithmic governance be squared with legal principles of governmental transparency? We analyze this question and conclude that machine-learning algorithms’ relative inscrutability does not pose a legal barrier to their responsible use by governmental authorities. We distinguish between principles of “fishbowl transparency” and “reasoned transparency,” explaining how both are implicated by algorithmic governance but also showing that neither conception compels anything close to total transparency. Although machine learning’s black-box features distinctively implicate notions of reasoned transparency, legal demands for reason-giving can be satisfied by explaining an algorithm’s purpose, design, and basic functioning. Furthermore, new technical advances will only make machine-learning algorithms increasingly more explainable. Algorithmic governance can meet both legal and public demands for transparency while still enhancing accuracy, efficiency, and even potentially legitimacy in government.

From the abstract for Aaron Rappaport, An Unappreciated Constraint on the President’s Pardon Power (Nov. 30, 2018):

Most commentators assume that, except for the few textual limitations mentioned in the U.S. Constitution, the President’s pardon power is effectively unlimited. This paper suggests that this common view is mistaken in at least one unexpected way: Presidential pardons must satisfy a specificity requirement. That is, to be valid, the pardon must list the specific crimes insulated from criminal liability.

This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion. Nonetheless, that burden can be met. The paper’s argument rests on an originalist understanding of the Constitution’s text, an approach that leaves little doubt that a specificity requirement is an implicit limitation on the President’s pardon power. It also demonstrates that the main objections to the argument – that the requirement runs contrary to the Constitutional text or historical practice – are misguided and unpersuasive.

Of course, even if a specificity requirement exists, one may wonder about its significance. After all, the requirement does not prevent a President from issuing a pardon to any person or for any crime. Nonetheless, as the paper explains, a specificity requirement may prove more powerful than it first appears. Most importantly, it both limits the scope and raises the cost of issuing pardons for criminal violations, including violations of the electoral process. In so doing, the specificity requirement serves as an unexpected ally in the fight for political accountability and in defense of the rule of law.

Almost exactly a year ago, Donald Trump’s former National Security Adviser Michael Flynn entered into a cooperating plea deal with Special Counsel Robert Mueller. Flynn admitted lying to investigators about his communications with Russia’s ambassador to the US late in December 2016. The discussions related to sanctions then president Barack Obama had imposed on Moscow over its interference in the US election, and a UN security council vote on halting new Israeli settlements. After several postponements, Mueller has now made his sentencing recommendation illuminating the extent to which Flynn cooperated with the Office of Special Counsel in the Russia probe.

Read Mueller’s sentencing memo for Michael Flynn here and the redacted addendum here. The latter discusses the significance and usefulness of Flynn’s assistance. See also this Washington Post analysis and this New York Times analysis.

From the abstract for Laura P. Graham, Generation Z Goes to Law School: Teaching and Reaching Law Students in the Post-Millennial Generation, University of Arkansas at Little Rock Law Review, 2019, Forthcoming:

This Article … examines three learning characteristics of Generation Z students that have direct implications for legal educators: they are saturated with technology, they are weaker than their predecessor generations in critical reading, thinking, and writing, and they prefer to work alone rather than in collaborative settings.

Finally, this Article suggests concrete strategies for legal educators to address the challenges presented by Generation Z students, focusing on five areas: (1) more instruction in critical reading; (2) more writing opportunities across the law school curriculum; (3) more thoughtful (and perhaps more sparing) use of technology in the classroom; (4) more careful attention to how and when we use collaborative learning techniques; and (5) more emphasis on encouraging mindfulness and wellness in our students.

Today Reuters is reporting that TR revealed plans to cut 3,200 jobs — roughly 12 percent of its workforce — by 2020 in an attempt to cut costs and “streamline the business.” As part of the streamlining, the company said it planned to reduce the number of offices around the world by 30 percent to 133 locations by 2020. Thomson Reuters set a target to reduce its capital expenditure to between 7 percent and 8 percent of revenue in 2020 from 10 percent currently. The company has set aside $2 billion of the $17 billion proceeds from the Blackstone deal to make purchases to help grow its legal and tax businesses. For earlier coverage of TR layoffs in Legal see this LLB post.

A judge capped the costs award in an occupier’s liability personal injury costs judgment, writing that the use of artificial intelligence should have “significantly reduced” counsel’s preparation time. The decision in Cass v. 1410088 Ontario Inc., 2018 ONSC 6959 reduced the starting point for disbursements by $11,404.08, citing both research fees as well as other aspects of the lawyers’ bill, and awarded a total cost award against the plaintiff of $20,000.

From the introduction to US Sanctions on Russia (R45415, Nov. 28, 2018):

Sanctions are considered by many to be a central element of U.S. policy to counter Russian malign behavior. Most Russia-related sanctions have been in response to Russia’s 2014 invasion of Ukraine. In addition, the United States has imposed sanctions on Russia in response to human rights abuses, election interference and cyberattacks, weapons proliferation, illicit trade with North Korea, support to Syria, and use of a chemical weapon. The United States also employs sanctions to deter further objectionable activities. Most Members of Congress support a robust use of sanctions amid concerns about Russia’s international behavior and geostrategic intentions.

From the press release:

The Government Publishing Office (GPO) makes available a subset of enrolled bills, public and private laws, and the Statutes at Large in Beta United States Legislative Markup (USLM) XML, a format that makes documents easier to download and repurpose.

The documents available in the Beta USLM XML format include enrolled bills and public laws beginning with the 113th Congress (2013) and the Statutes at Large beginning with the 108th Congress (2003). They are available on govinfo, GPO’s one-stop site to authentic, published Government information. www.govinfo.gov/bulkdata

H/T Gary Price, InfoDocket

From the abstract for Milan Markovic, Rise of the Robot Lawyers? Arizona Law Review, Forthcoming:

The advent of artificial intelligence has provoked considerable speculation about the future of the American workforce, including highly educated professionals such as lawyers and doctors. Although most commentators are alarmed by the prospect of intelligent machines displacing millions of workers, not so with respect to the legal sector. Media accounts and some legal scholars envision a future where intelligent machines perform the bulk of legal work, and legal services are less expensive and more accessible. This future is purportedly near at hand as lawyers struggle to compete with technologically-savvy alternative legal service providers.

This Article challenges the notion that lawyers will be displaced by artificial intelligence on both empirical and normative grounds. Most legal tasks are inherently abstract and cannot be performed by even advanced artificial intelligence relying on deep-learning techniques. In addition, lawyer employment and wages have grown steadily over the last twenty years, evincing that the legal profession has benefited from new technologies, as it has throughout its history. Lastly, even if large-scale automation of legal work is possible, core societal values counsel against it. These values are not merely aspirational but are reflected in the multi-faceted role of lawyers and in the way that the legal system is structured.

govinfo is a redesign of the FDsys public website, with a focus on implementing feedback from users and improving overall search and access to electronic Federal Government information. The redesigned, mobile-friendly website incorporates innovative technologies and includes several new features for an overall enhanced user experience. GPO’s Federal Digital System (FDsys) website will be retired and replaced with govinfo on Dec. 14, 2018. Here’s answers to frequently ask questions about the transition.

The sentencing memo submitted by Cohen’s lawyers attributes to misplaced loyalty his decision to lie to Congress about Trump’s business negotiations over a Moscow hotel project. Cohen does not say that the president instructed him to lie. He was aware, his lawyers write, of the president’s public statements—that he had no such dealings with Russia—and he chose a line of testimony that would not contradict them. For more, see Lawfare’s There’s a Lot Going On in Michael Cohen’s Sentencing Memo and The Atlantic’s Three Remarkable Things About Michael Cohen’s Plea.

From the abstract for James P. Pfiffner, The Lies of Donald Trump: A Taxonomy:

The most important lies of Donald Trump differ significantly from previous presidential lies. Other presidents have lied for a variety of reasons, from legitimate lies concerning national security to trivial misstatements, to shading the truth, to avoiding embarrassment, to serious lies of policy deception. The paper distinguishes four types of Trump’s lies: 1) trivial lies, 2) exaggerations and self aggrandizing lies; 3) lies to deceive the public; and 4) egregious lies. It then analyzes the consequences of lies with respect to misinformation encoding and the relationship of lies to loyalty and power. The most serious lies of Donald Trump were egregious false statements that were demonstrably contrary to well known facts. The paper concludes that his lies were detrimental to the democratic process, and that his continued adherence to demonstrably false statements undermined enlightenment epistemology and corroded the premises of liberal democracy.

From the abstract for Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, Vanderbilt Law Research Paper Forthcoming:

The consequences of Brett Kavanaugh’s confirmation to replace Justice Anthony Kennedy on the Supreme Court are seismic. The new conservative majority that Kavanaugh completes represents a stunning victory for the Republican party after decades of effort by the conservative legal movement. The result is a Supreme Court whose justices—on both sides—are likely to vote along party lines more consistently than ever before in American history. That development presents a grave threat to the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court to render impartial justice, the Court’s ability to reach settlements of important questions that all Americans can live with is serious jeopardy. Raising the stakes even higher, many Democrats are already calling for changes like court-packing to prevent the new conservative majority from blocking progressive reforms. Even if justified, such moves could provoke further tit-for-tat escalation that would leave the Court’s image, and the rule of law, badly damaged.

The coming crisis can be stopped. But preserving the Court’s legitimacy as an institution above politics will require a complete rethinking of how the Court works and how the Justices are chosen. To save what is good about the Court, we must reject and rethink much of how the Court has operated for more than two centuries. In this Essay, we outline a framework for thinking about saving the Supreme Court, evaluate existing proposals, and offer two distinct reform proposals of our own, which we call the Supreme Court Lottery and the Balanced Court. Whether policymakers adopt these precise proposals or not, however, it is imperative that they search for some kind of reforms along these lines. Saving the Court—by transforming the Court—is our best hope.

U.S. District Judge Edgardo Ramos of the Southern District of New York ruled in favor of seven states that sued the Justice Department after it required in June that states comply with new rules enforcing federal immigration law. Justice Department “did not have lawful authority” to force local and state governments to notify the federal government when an undocumented immigrant was in custody. Read the opinion and order here.

From the abstract for Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman, ‘Faithful Execution’ and Article II, Harvard Law Review, Forthcoming:

Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.” These clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.

This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up to the original meaning in the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but also to a vast number of insignificant officers, too. We contend that it imposed three core requirements on officeholders:

(1) diligent, careful, good faith, and impartial execution of law or office;

(2) a duty not to misuse an office’s funds and or take unauthorized profits; and

(3) a duty not to act ultra vires, beyond the scope of one’s office.

These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution that limit presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons. So understood, Article II may thus place some limits on the pardon and removal powers, for example. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes for policy and perhaps even constitutional reasons, and perhaps constraining agencies’ interpretation of statutes to pursue Congress’s objectives. Our conclusions undermines imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring faithful execution.

From the abstract for Alberto Gonzales, Presidential Powers, Immunities, and Pardons, 96 Wash. L. Rev. 1 (2018):

This Article intends to clarify some of the more difficult legal issues in our nation’s separation of powers jurisprudence. In order to afford the President the flexibility and discretion necessary to discharge presidential duties, the courts are almost certainly going to recognize total immunity from the criminal process for the President with respect to official conduct. The treatment of unofficial conduct is less predictable. Based on precedent and our nation’s founding principles of equal justice and fairness, the courts are likely to hold that a sitting President is not above the law and thus does not enjoy immunity from criminal prosecution for unofficial acts or conduct unrelated to his or her fitness to hold office. However, because of separation of powers considerations, the courts are likely to require deferral of any such prosecution until the President no longer holds office.

Although not as clear, constitutional considerations would likely also require deferral of any investigation or indictment, at least those requiring the direct and material participation of the President. On the other hand, the President can be compelled to produce certain documentary evidence when doing so is necessary and would otherwise be unavailable in connection with a criminal investigation. The argument for presidential immunity with respect to production of evidence is stronger, though likely not absolute, with respect to oral testimony. Nonetheless, mindful of the President’s duties, the courts are likely to afford the President great latitude in the time, place, and manner of providing oral testimony. Finally, there is nothing in the Constitution that expressly prohibits or limits the President from issuing a self-pardon.

From the summary of Post-Heller Second Amendment Jurisprudence (R44618, Nov. 28, 2018):

Because Heller neither purported to define the full scope of the Second Amendment, nor suggested a standard of review for evaluating Second Amendment claims, the lower federal courts have been tasked with doing so in the Second Amendment challenges brought before them. These challenges include allegations that provisions of the Gun Control Act of 1968, as amended, as well as various state and local firearm laws (e.g., “assault weapon” bans, concealed carry regulations, firearm licensing schemes) are unconstitutional. The analyses in these cases may provide useful guideposts for Congress should it seek to enact further firearm regulations.