Author Archives: Joe Hodnicki

CRS Report: Redeploying U.S. Nuclear Weapons to South Korea: Background and Implications in Brief

Redeploying U.S. Nuclear Weapons to South Korea: Background and Implications in Brief (September 14, 2017 R44950)

From the summary:

Recent advances in North Korea’s nuclear and missile programs have led to discussions, both within South Korea and, reportedly, between the United States and South Korean officials, about the possible redeployment of U.S. nuclear weapons on the Korean Peninsula. The United States deployed nuclear weapons on the Korean Peninsula between 1958 and 1991. Although it removed the weapons as a part of a post-Cold War change in its nuclear posture, the United States remains committed to defending South Korea under the 1953 Mutual Defense Treaty and to employing nuclear weapons, if necessary, in that defense.

The only warheads remaining in the U.S. stockpile that could be deployed on the Korean Peninsula are B61 bombs. Before redeploying these to South Korea, where they would remain under U.S. control, the United States would have to recreate the infrastructure needed to house the bombs and would also have to train and certify the personnel responsible for maintaining the weapons and operating the aircraft for the nuclear mission.

South Korea’s President Moon Jae-in has advocated for more muscular defense options, but does not support the redeployment of U.S. tactical nuclear weapons. The Liberty Korea Party, the main opposition party, has formally called for the move. While some in South Korea believe nuclear weapons are necessary to deter the North, others, including those who maintain hope that North Korea will eliminate its program, argue that their redeployment could make it that much more difficult to pressure the North to take these steps. Further, if North Korea saw the deployment as provocative, it could further undermine stability and increase the risk of conflict on the peninsula.

China would also likely view the redeployment of U.S. nuclear weapons as provocative; it has objected to U.S. military deployments in the past. Some analysts believe that China might respond by putting more pressure on North Korea to slow its programs, while others believe that China might increase its support for North Korea in the face of a new threat and, possibly, expand its own nuclear arsenal. Japan’s reaction could also be mixed. Japan shares U.S. and South Korean concerns about the threat from North Korea, but given its historical aversion to nuclear weapons, Japan could oppose the presence of U.S. nuclear weapons near its territory. In addition, any adjustment of the U.S. military posture on the peninsula could create additional security concerns for Tokyo.

— Joe

CRS Report: Options to Cease Implementing the Iran Nuclear Agreement

Options to Cease Implementing the Iran Nuclear Agreement (September 7, 2017 R44942)

From the summary:

Trump Administration statements indicate that the Administration does not believe that the 2015 multilateral nuclear agreement with Iran, the Joint Comprehensive Plan of Action (JCPOA), addresses the full range of potential threats posed by Iran. Administration officials assert that the Administration is considering ending or altering U.S. implementation of the JCPOA. This report analyzes some of the options the Administration might use to end or alter U.S. implementation of the JCPOA, if there is a decision to do so. These options, which might involve use of procedures in the JCPOA itself or the Iran Nuclear Agreement Review Act (P.L. 114-17), are not necessarily mutually exclusive. This report does not analyze the advantages and disadvantages of any specific option, or examine in detail the implications of any particular course of action.

— Joe

The Iranian nuclear accord: CRS backgrounders

President Trump reportedly has decided on whether or not to certify the multilateral nuclear accord (Joint Comprehensive Plan of Action, or JCPOA) but he won’t as of yet reveal his decision. See this CNN report. For background see this CRS report, Iran Nuclear Agreement (April 21, 2017 R43333). From the report:

The Obama Administration and other P5+1 leaders asserted that the JCPOA represented the most effective means to ensure that Iran cannot obtain a nuclear weapon and that all U.S. options to prevent Iran from developing a nuclear weapon remain available even after the key nuclear restrictions of the JCPOA expire. The JCPOA contains provisions for U.N. sanctions to be reimposed if Iran violates its commitments. Critics of the agreement expressed concerns that the extensive sanctions relief provided under the accord gives Iran additional resources to extend its influence in the region. Critics also assert that the JCPOA did not contain any restrictions on Iran’s development of ballistic missiles. Resolution 2231 prohibits arms transfers to or from Iran, but only for five years, and contains a voluntary restriction on Iran’s development of nuclear-capable ballistic missiles for only up to eight years. The expiration of these restrictions sets the stage for Iran to emerge as a key regional actor. These commitments are stated in U.N. Security Council Resolution 2231. The JCPOA Other critics have said that the JCPOA did not require that Iran cease support for groups that conduct acts of international terrorism.

The Trump Administration has articulated that the United States will seek to counter Iran’s “malign” activities in the region and any other activities that the Administration considers provocative or destabilizing, such as the continued development of ballistic missiles. The Administration has said it is undertaking a “deliberative process” to determine responses to such Iranian activities that would not conflict with implementing U.S. commitments under the JCPOA.

See also, Iran Sanctions (September 15, 2017 RS20871). From the introduction:

The multilateral nuclear accord (Joint Comprehensive Plan of Action, or JCPOA) provides Iran broad relief from U.S., U.N., and multilateral sanctions on Iran’s civilian economic sectors. On January 16, 2016, upon the International Atomic Energy Agency (IAEA) certification that Iran had complied with the stipulated nuclear dismantlement commitments, U.S. Administration waivers of relevant sanctions laws took effect, relevant executive orders (E.O.s) were revoked, and corresponding U.N. and EU sanctions were lifted (“Implementation Day”).

Remaining in place have been those secondary sanctions (sanctions on foreign firms) that have been imposed because of Iran’s support for terrorism, its human rights abuses, its interference in specified countries in the region, and its missile and advanced conventional weapons programs, as well as sanctions on the Islamic Revolutionary Guard Corps (IRGC) and designated commanders, subunits, and affiliates.

— Joe

California files a federal lawsuit to block Trump’s wall along the Mexico border [text of complaint]

Yesterday California Atty. Gen. Xavier Becerra filed a Complaint for Declaratory and Injunctive Relief [text of complaint][press release] on behalf of the state that will challenge President Trump’s proposal to build a wall at the U.S.-Mexico border. The lawsuit, which includes the California Coastal Commission as a plaintiff, states its purpose:

The People bring this action to protect the State of California’s residents, natural resources, economic interests, procedural rights, and sovereignty from violations of the United States Constitution, the National Environmental Policy Act and the Administrative Procedure Act occurring as a result of the actions of the United States of America, the United States Department of Homeland Security (“DHS”), former DHS Secretary John Kelly in his official capacity, Acting DHS Secretary Elaine Duke in her official capacity, the United States Customs and Border Protection (“CBP”), and Acting CBP Commissioner Kevin K. McAleenan in his official capacity (together Defendants”), with respect to the planning and construction of a border wall and related border barrier projects along the southern border of the United States, including sigificant projects (“Border Wall” or “Border Wall Projects”).

For background, see Patrick McGreevy and Jazmine Ulloa, California to sue Trump administration over plan for U.S.-Mexico border wall, Los Angeles Times, Sept. 20, 2017. — Joe

What sort of information transparency is necessary for reliance on analytical tools?

According to RNRMarketResearch.com, the legal analytics market is growing at a compound annual growth rate of 32.7% and is projected to grow from $451.1 million in 2017 to $1.858 billion by 2022. But not all legal analytical products are created equally. On the AALL CS-SIS blog, Jonathan Germann demonstrates this by comparing Docket Navigator with Bloomberg Law. The latter comes up lacking. “As information professionals become regular users and gatekeepers of analytics tools, what information transparency is necessary for reliance?,” asks Germann. He proceeds to provide a transparency checklist. — Joe

Should the US continue its active internationalist role? CRS backrounder for Congress

Just days before Trump’s first UN speech [transcript], the Congressional Research Service produced U.S. Role in the World: Background and Issues for Congress (Sept. 15, 2017 R44891). From the introduction:

The overall U.S. role in the world since the end of World War II in 1945 (i.e., over the past 70 years) is generally described as one of global leadership and significant engagement in international affairs. A key aim of that role has been to promote and defend the open international order that the United States, with the support of its allies, created in the years after World War II. In addition to promoting and defending the open international order, the overall U.S. role is generally described as having been one of promoting freedom, democracy, and human rights, while criticizing and resisting authoritarianism where possible, and opposing the emergence of regional hegemons in Eurasia or a spheres-of-influence world.

Certain statements and actions from the Trump Administration have led to uncertainty about the Administration’s intentions regarding the future U.S. role in the world. Based on those statements and actions, some observers have speculated that the Trump Administration may want to change the U.S. role in one or more ways. A change in the overall U.S. role could have profound implications for U.S. foreign policy, national security, and international economic policy, for Congress as an institution, and for many federal policies and programs.

— Joe

Google’s mobile search helps users find ebooks at some local public libraries

For detail’s see my Gesenhues’ Search Engine Land post. H/T to Gary Price’s InfoDocket post. — Joe

Going solo as in licensing Lexis only or Westlaw only

Over 50% of large law firms license only Lexis or only Westlaw according to Feit Consulting. Some 22% of BigLaw firms with 750+ attorneys have gone solo provider. Michael Feit looks at the duopoly of our very expensive search vendors and the best route for individual firms in One of the largest law firms goes sole provider, does this finally foretell the Wexis monopoly demise in the largest segment?

Feit Consulting has been monitoring the sole provider trend for over a decade. As corporate clients pushed back on research costs, firms were not able to recover costs entirely. The affect on the bottom line pushed some firms to make the decision to go sole provider. The freedom of funds allows firms and organizations to purchase wish-list software and technology to enhance the delivery of legal information. While this has worked for some, the big question is whether it is the right decision for your firm or organization.

H/T to PinHawk’s Legal Administrator Daily — Joe

What’s in the new Graham-Cassidy bill?

Here’s the text of the new Graham-Cassidy bill and a summary of its provisions from Senator Cassidy’s website. For an analysis, see Timothy Jost’s New Graham-Cassidy Bill: A Last GOP Shot At ACA Repeal And Replace Through Reconciliation, Health Affairs Blog (Sept 13, 2017), noting “The fundamental idea of the Graham-Cassidy bill is to terminate the ACA’s Medicaid expansions, premium tax credits, cost-sharing reduction payments, small business tax credits, and Basic Health Program as of 2019 and redistribute the money funding those programs to the states, using a complex formula described below. The bill would also impose per capita caps on Medicaid funding generally, also offering the states the alternative of a broader Medicaid block grant. Finally, the bill contains a number of tax cuts and health care regulation changes taken from earlier Senate repeal bills.” — Joe

Law dean felons?

Morgan Cloud and George B. Shepherd have posted Law Deans in Jail on SSRN. Here is the abstract:

A most unlikely collection of suspects – law schools, their deans, U.S. News & World Report and its employees – may have committed felonies by publishing false information as part of U.S. News’ ranking of law schools. The possible federal felonies include mail and wire fraud, conspiracy, racketeering, and making false statements. Employees of law schools and U.S. News who committed these crimes can be punished as individuals, and under federal law the schools and U.S. News would likely be criminally liable for their agents’ crimes.

Some law schools and their deans submitted false information about the schools’ expenditures and their students’ undergraduate grades and LSAT scores. Others submitted information that may have been literally true but was misleading. Examples include misleading statistics about recent graduates’ employment rates and students’ undergraduate grades and LSAT scores.

U.S. News itself may have committed mail and wire fraud. It has republished, and sold for profit, data submitted by law schools without verifying the data’s accuracy, despite being aware that at least some schools were submitting false and misleading data. U.S. News refused to correct incorrect data and rankings errors and continued to sell that information even after individual schools confessed that they had submitted false information. In addition, U.S. News marketed its surveys and rankings as valid although they were riddled with fundamental methodological errors.

— Joe

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