From Sarah Lamdan, When Westlaw Fuels Ice Surveillance: Ethics in the Big Data Policing Era, N.Y.U. Review of Law & Social Change (Forthcoming):
Legal research companies are selling surveillance data and services to U.S. Immigration and Customs Enforcement (ICE) and other law enforcement agencies. This article discusses ethical issues that arise when lawyers buy and use legal research services sold by the vendors that build ICE’s surveillance systems. As the legal profession collectively pays millions of dollars for computer assisted legal research services, lawyers should consider whether doing so in the era of big data policing compromises their confidentiality requirements and their obligation to supervise third party vendors.
The New York Times fact checked 250-plus Trump claims and bold assertions about Russia’s interference in the 2016 election and the ensuing federal investigation of his campaign. — Joe
On The Faculty Lounge, Bridget Crawford has published the 2018-2019 edition of her law professor twitter census. — Joe
Sagewise has published a survey of smart contract and blockchain legislation by state. The survey identifies proposed, pending, and passed blockchain and smart contract legislation in each of the 50 U.S. states. — Joe
The Senate unanimously passed a resolution Thursday declaring “the press is not the enemy of the people.” The resolution, introduced by Sen. Brian Schatz (D-HI), Senate Democratic Leader Chuck Schumer (D-NY), and Sen. Richard Blumenthal (D-CT), reaffirms the Senate’s commitment to the Constitution’s declaration of the freedom of the press. According to the resolution, the Senate “views efforts to systematically undermine the credibility of the press as an attack on the democratic institutions of the United States.” — Joe
Following Facebook and Twitter, Google has published its political ad database which details spending in US federal elections. The database contains any political ads purchased to run on Google Search or YouTube starting on or after May 31. The database will be updated weekly, not in real time. The database will include information about who paid for the ad, how many impressions it received, how long it ran for, and how much money was spent on it.
H/T Gary Price’s InfoDocket post. — Joe
From Gregory C. Sick et al., Scholarly Impact of Law School Faculties in 2018: Updating the Leiter Score Ranking for the Top Third (Aug. 14, 2018):
This updated 2018 study explores the scholarly impact of law faculties, ranking the top third of ABA-accredited law schools. Refined by Brian Leiter, the “Scholarly Impact Score” for a law faculty is calculated from the mean and the median of total law journal citations over the past five years to the work of tenured faculty members. In addition to a school-by-school ranking, we report the mean, median, and weighted score, along with a listing of the tenured law faculty members at each school with the ten highest individual citation counts. The law faculties at Yale, Harvard, Chicago, New York University, and Columbia rank in the top five for Scholarly Impact. The other schools rounding out the top ten are Stanford, the University of California-Berkeley, Duke, Pennsylvania, and Vanderbilt. The most dramatic rises in the 2018 Scholarly Impact Ranking were by four schools that climbed 16 ordinal positions: Kansas (to #48), USC (to #23), the University of St. Thomas (Minnesota) (to #23), and William & Mary (to #28). In addition, two schools rose by 10 spots: Florida State (to #29) and San Francisco (to #54). Several law faculties achieve a Scholarly Impact Ranking in 2018 well above the law school rankings reported by U.S. News for 2019: Vanderbilt (at #10) repeats its appearance within the top ten for Scholarly Impact, but is ranked lower by U.S. News (at #17). Among the top ranked schools, the University of California-Irvine experiences the greatest incongruity, ranking just outside the top ten (#12) for Scholarly Impact, but holding a U.S. News ranking nine ordinal places lower (at #21). In the Scholarly Impact top 25, George Mason rises slightly (to #19), but remains under-valued in U.S. News (at #41). George Washington stands at #16 in the Scholarly Impact Ranking, while falling just inside the top 25 (at #24) in U.S. News. The most dramatically under-valued law faculty remains the University of St. Thomas (Minnesota), which now ranks inside the top 25 (at #23) for Scholarly Impact, while being relegated by U.S. News below the top 100 (at #113)—a difference of 90 ordinal levels.
“Deepfakes” is an artificial intelligence-based human image synthesis technique. It is used to combine and superimpose existing images and videos onto source images or videos, usually without permission. Such digital impersonation is on the rise. Deepfakes raise the stakes for the “fake news” phenomenon in dramatic fashion (quite literally). Lawfare offers examples:
- Fake videos could feature public officials taking bribes, uttering racial epithets, or engaging in adultery.
- Politicians and other government officials could appear in locations where they were not, saying or doing horrific things that they did not.
- Fake videos could place them in meetings with spies or criminals, launching public outrage, criminal investigations, or both.
- Soldiers could be shown murdering innocent civilians in a war zone, precipitating waves of violence and even strategic harms to a war effort.
- A deep fake might falsely depict a white police officer shooting an unarmed black man while shouting racial epithets.
- A fake audio clip might “reveal” criminal behavior by a candidate on the eve of an election.
- A fake video might portray an Israeli official doing or saying something so inflammatory as to cause riots in neighboring countries, potentially disrupting diplomatic ties or even motivating a wave of violence.
- False audio might convincingly depict U.S. officials privately “admitting” a plan to commit this or that outrage overseas, exquisitely timed to disrupt an important diplomatic initiative.
- A fake video might depict emergency officials “announcing” an impending missile strike on Los Angeles or an emergent pandemic in New York, provoking panic and worse.
For more, see:
The impending war over deepfakes, Axios, July 22, 2018
Here’s why it’s so hard to spot deepfakes, CNN, Aug. 8, 2018
Deep Fakes: A Looming Crisis for National Security, Democracy and Privacy?, Lawfare, Feb. 21, 2018
From Steven D. Schwinn, Constitutional Law Prof Blog: “President Trump late yesterday issued a breathtaking constitutional signing statement on the John S. McCain National Defense Authorization Act for Fiscal Year 2019. The President called out dozens of provisions for impinging on the commander-in-chief authority, the foreign affairs authority, the appointments authority, executive privilege, and the President’s authority to recommend legislation. … Perhaps most alarming, the President identified 18 separate sections that require public disclosure or reports to Congress on various topics as categorically “protected by executive privilege.”.” — Joe
Data-Driven Law: Data Analytics and the New Legal Services, edited by Ed Walters “helps legal professionals meet the challenges posed by a data-driven approach to delivering legal services. Its chapters are written by leading experts who cover such topics as:
Mining legal data
Uncovering bias through the use of Big Data
Quantifying the quality of legal services
Data mining and decision-making
Contract analytics and contract standards
“In addition to providing clients with data-based insight, legal firms can track a matter with data from beginning to end, from the marketing spend through to the type of matter, hours spent, billed, and collected, including metrics on profitability and success. Firms can organize and collect documents after a matter and even automate them for reuse. Data on marketing related to a matter can be an amazing source of insight about which practice areas are most profitable.
“Data-driven decision-making requires firms to think differently about their workflow. Most firms warehouse their files, never to be seen again after the matter closes. Running a data-driven firm requires lawyers and their teams to treat information about the work as part of the service, and to collect, standardize, and analyze matter data from cradle to grave. More than anything, using data in a law practice requires a different mindset about the value of this information. This book helps legal professionals to develop this data-driven mindset.”
Recommended. — Joe
The Senate Judiciary Committee has released another production of documents in the course of its consideration of Judge Brett Kavanaugh to serve as Associate Justice of the Supreme Court of the United States. This latest production from the Office of President George W. Bush totals more than 49,000 pages of records relating to Judge Kavanaugh’s service in the White House Counsel’s Office. — Joe
From the abstract for Carol Pauli’s Enemy of the People: Negotiating News at the White House, Ohio State Journal on Dispute Resolution, Forthcoming:
How can the press serve as a check on executive power when the president calls it “fake” and the White House denies facts? As journalists debate the right response, this article offers advice from the perspective of a journalist who is now in the legal academy. Drawing on legal scholarship in the field of conflict resolution — as well as literature in journalism and political science — this article analyzes the White House press briefing as a negotiation over both the content of news and the relationship of the press and president. It aims to help the press fulfill the urgent public need for news: the verified, factual, shared reality that makes self-government possible.
Ultimately, the article concludes that the press can improve its negotiating position in several ways. Among them, it should resist anger, formulate expansive goals, use teamwork, and respond to government falsehoods in measured and nimble ways. The press should increase its own transparency in order to build trust and to distinguish its work from the blur of rumors that fill social media. Finally, it should decide in advance what government moves would be unacceptable and what actions it would take in response.
Axios has produced a chart that demonstrates just how busy the Trump news cycle has been in just the first half of 2018, as seen in Google News Lab’s data on the googling trends of the public. It shows when and how much people searched about 30 of the biggest news events.
H/T to beSpacific. Interesting. — Joe
From Abortion, Justice Kennedy, and Judge Kavanaugh (LSB10185, August 8, 2018):
This Legal Sidebar addresses these questions by first reviewing the undue burden standard and generally discussing Justice Kennedy’s views on the standard in the case law that has developed since Casey. The Sidebar then, in light of President Trump’s July 9, 2018 nomination of Judge Brett Kavanaugh to replace Justice Kennedy, examines Judge Kavanaugh’s only substantive abortion opinion: a dissent in the 2017 case from the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), Garza v. Hargan. Finally, as lower courts continue to apply the undue burden standard to new abortion regulations, the Sidebar concludes by noting some of the abortion cases that the Supreme Court could possibly review in the near future.
The Senate Judiciary Committee on Thursday publicly released its first batch of documents from Brett Kavanaugh’s work in the George W. Bush White House. The batch being released, totaling more than 5,700 pages and is part of more than 125,000 pages given to the committee last week by the George W. Bush Presidential Library.
H/T to beSpacific. — Joe
Here’s the blurb for Craig Bruce Smith, American Honor: The Creation of the Nation’s Ideals during the Revolutionary Era (Univ. of North Carolina Press, April 23, 2018):
The American Revolution was not only a revolution for liberty and freedom, it was also a revolution of ethics, reshaping what colonial Americans understood as “honor” and “virtue.” As Craig Bruce Smith demonstrates, these concepts were crucial aspects of Revolutionary Americans’ ideological break from Europe and shared by all ranks of society. Focusing his study primarily on prominent Americans who came of age before and during the Revolution—notably John Adams, Benjamin Franklin, Thomas Jefferson, and George Washington—Smith shows how a colonial ethical transformation caused and became inseparable from the American Revolution, creating an ethical ideology that still remains.
By also interweaving individuals and groups that have historically been excluded from the discussion of honor—such as female thinkers, women patriots, slaves, and free African Americans—Smith makes a broad and significant argument about how the Revolutionary era witnessed a fundamental shift in ethical ideas. This thoughtful work sheds new light on a forgotten cause of the Revolution and on the ideological foundation of the United States.
NPR reports that the 14 recently adopted articles of impeachment recommend that the entire bench — Chief Justice Margaret Workman, Justice Allen Loughry, Justice Robin Davis, and Justice Elizabeth Walker – be impeached “for maladministration, corruption, incompetency, neglect of duty, and certain high crimes and misdemeanors.” — Joe
The United States has used military bases in the past to house large groups of immigrants and refugees. History of Use of U.S. Military Bases to House Immigrants and Refugees (IN10937, July 26, 2018) provides examples from the past 50 years as well as statutory authority and DOD policy documents. — Joe
“Every day, critics of the American president decry his penchant for “false or misleading claims,” while he and his supporters fire back with accusations of “fake news.” It’s no wonder those of us who teach are worried more than ever about information literacy,” wrote David Gooblar in How to Teach Information Literacy in an Era of Lies, Chronicle of Higher Education (July 24, 2018). Gooblar believes that professors in every discipline should make teaching information literacy a priority. He provides ways to incorporate information literacy into various courses.
H/T Information Today. — Joe
From the abstract for William Baude’s Constitution Liquidation, 71 Stanford Law Review (2019), Forthcoming:
James Madison wrote that the Constitution’s meaning could be “liquidated” and settled by practice. But the term “liquidation” is not widely known, and its precise meaning is not understood. This paper attempts to rediscover the concept of constitutional liquidation, and thereby provide a way to ground and understand the role of historical practice in constitutional law.
Constitutional liquidation had three key elements. First, there had to be a textual indeterminacy. Clear provisions could not be liquidated, because practice could “expound” the Constitution, but could not “alter” it. Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and “the public sanction” – a real or imputed popular ratification.
While this paper does not provide a full account of liquidation’s legal status at or after the Founding, liquidation is deeply connected to shared constitutional values. It provides a structured way for understanding the practice of departmentalism. It is analogous to Founding-era precedent, and could provide a salutary improvement over the modern doctrine of stare decisis. It is consistent with the core arguments for adhering to tradition. And it is less susceptible to some of the key criticisms against the more capacious use of historical practice.
Interesting. — Joe