Author Archives: Joe Hodnicki

Compelling presidential compliance with a judicial subpoena: CRS report

Compelling Presidential Compliance with a Judicial Subpoena (LSB10130, May 4, 2018): “Special Counsel Robert Mueller reportedly warned President Trump’s lawyers in a March meeting that if the President declined to participate in a voluntary interview, Mueller could issue a subpoena compelling the President’s testimony before a grand jury. The alleged exchange raises the question of whether a sitting President, consistent with the separation of powers and Article II of the Constitution, may be required to comply with a subpoena for his testimony as part of an ongoing criminal investigation.”

H/T to beSpacific. — Joe

Is legislative history unconstitutional?

According to Victoria Nourse, The Constitution and Legislative History, 17 University of Pennsylvania Journal of Constitutional Law 313 (2014), the answer is “no.” From the conclusion of Nourse’s article:

It is time to retire the all-or-nothing 1980s debate about the constitutionality of legislative history. These arguments have been generally ignored by the vast majority of judges and the Supreme Court. New developments in the theory of statutory interpretation, including decision process theory, help to sharpen the critique of legislative history but at the same time retire the constitutional questions as they have been posed. When applied to legislative rules and proceedings, the arguments against the constitutionality of legislative history, are not supported by the text, history or structure of the Constitution.

— Joe

Citation count analysis for papers with preprints

Here’s the abstract for Sergey Feldman, Kyle Lo and Waleed Ammar’s Citation Count Analysis for Papers with Preprints (May 14, 2018):

We explore the degree to which papers prepublished on arXiv garner more citations, in an attempt to paint a sharper picture of fairness issues related to prepublishing. A paper’s citation count is estimated using a negative-binomial generalized linear model (GLM) while observing a binary variable which indicates whether the paper has been prepublished. We control for author influence (via the authors’ h-index at the time of paper writing), publication venue, and overall time that paper has been available on arXiv. Our analysis only includes papers that were eventually accepted for publication at top-tier CS conferences, and were posted on arXiv either before or after the acceptance notification. We observe that papers submitted to arXiv before acceptance have, on average, 65\% more citations in the following year compared to papers submitted after. We note that this finding is not causal, and discuss possible next steps.

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

Election hacking and international law

Ido Kilovaty’s Doxfare – Election Hacking as Prohibited Intervention, 9 Harvard National Security Journal ___ (Spring 2018) “argues that foreign actors meddling with a legitimate political process in another State through cyberspace ought to be in violation of the norm of non-intervention. Although seemingly the constitutive coercion element is absent, international law should adapt to the digital era’s threats, and consider non-coercive interferences that constitute “doxfare” – the public release of sensitive documents – with the intent of disrupting legitimate domestic processes, as violations of the norm. As this paper contends, cyberspace operations are distinct in their effects from their physical counterparts, and a traditional standard of coercion for the norm on non-intervention is outdated and requires the introduction of a more nuanced approach, that takes into account interventions that are non-coercive in nature.”

Jens David Ohlin’s Did Russian Cyber-Interference in the 2016 Election Violate International Law?, Texas Law Review (Forthcoming 2018):  “When it was revealed that the Russian government interfered in the 2016 U.S. presidential election by hacking into the email system of the Democratic National Committee and releasing its emails, international lawyers were divided over whether the cyber-attack violated international law. President Obama seemingly went out of his way to describe the attack as a mere violation of “established international norms of behavior,” though some international lawyers were more willing to describe the cyber-attack as a violation of international law. However, identifying the exact legal norm that was contravened turns out to be harder than it might otherwise appear. To the layperson, the Russian hacking constituted an impermissible (and perhaps shocking) interference in the American political process—an intervention that non-lawyers would not hesitate to label a “violation of sovereignty” as that term is used in political or diplomatic discourse. The problem arises when one attempts to translate that common-sense intuition into legal discourse. At that point, the translation effort breaks down for a variety of reasons. The genesis of the difficulty is that none of the standard rubrics for understanding illegal interventions clearly and unambiguously applies to the facts in question. That being said, it would be a mistake to hastily reject our common-sense intuitions about the impropriety of Russian hacking during the election. The lack of fit with the doctrinal requirements for an illegal intervention against another state’s sovereignty is simply an indication that the notions of “sovereignty” and “intervention”—though mainstays of contemporary public international law doctrine—are poorly suited to analyzing the legality of the conduct in this case. A far better rubric for analyzing the behavior is the notion of self-determination, a legal concept that captures the right of a people to decide, for themselves, both their political arrangements and their future destiny.”

— Joe


CRS report on nuclear negotiations with North Korea

Nuclear Negotiations with North Korea (R45033, Mar. 14, 2018) summarizes past nuclear and missile negotiations between the United States and North Korea and highlights some of the lessons and implications from these efforts. — Joe

Who is Stefan Halper?

Stefan Halper is suspected of being the FBI informant, Trump would say “spy,” who assisted the Russia investigation. Profiles have been published by the Washington Post and the Independent. — Joe

Information warfare: Former Republican Congressman Tom Coleman argues that Trump has committed treason

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. Former Republican Congressman Tom Coleman argues Donald Trump may have committed treason through his “actions and comments” regarding Russian attempts to influence the outcome of the 2016 election because Russa’s attempt amounted to information warfare. Here’s Coleman’s Daily Beast think piece. Interesting. — Joe

Epic Systems v. Lewis: Employers prevail in arbitration case before Supreme Court

In a major employment case, Epic Systems v. Lewis, the Court held 5-4 that arbitration clauses in employment contracts that require employees to forego class and collective actions are enforceable. The opinion was handed down by Justice Gorsuch on May 21, 2018. Justice Thomas filed a concurring opinion. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined. On SCOTUSblog, Amy Howe authored an analysis here. — Joe

The conflict of conscience and compliance in the Trump era

From the abstract of Keith A. Petty’s Duty and Disobedience: The Conflict of Conscience and Compliance in the Trump Era, 45 Pepperdine Law Review ___ (2018):

In the first weeks of President Trump’s administration, the Acting Attorney General was fired for ordering the Justice Department not to enforce a controversial Executive Order on immigration. Police departments and corporate boardrooms prepare for less oversight and deregulation, opening the door to more aggressive police tactics and profit seeking, respectively. Military leaders wonder whether they will be ordered to torture suspected terrorists. In each of these situations, individuals must decide whether they will follow their conscience and disobey superiors or comply with organizational and state policies.

This article examines the conflict between conscience and compliance and draws upon lessons from military conscientious objectors to describe the behavioral pulls that influence decisions to disobey. The law of military conscientious objection is an impactful microcosm of legal and ethical noncompliance. As such, it is an effective illustration of the relationship between individual behavior and organizations/states. Applying compliance theory, the branch of social- psychological studies seeking to answer why individuals, organizations, or states obey the law, this article offers prescriptive recommendations aimed to enhance organizational efficiency, individual commitment, and balance the legal and moral conflicts of potential objectors.

— Joe

Winkler’s We the Corporations: How American Businesses Won Their Civil Rights

Ronald Collins’ interview of Adam Winkler about his new book, We the Corporations: How American Businesses Won Their Civil Rights (Liveright, Feb. 27, 2018), for SCOTUSblog piqued my interest in Winkler’s new book. Here’s the blurb:

We the Corporations chronicles the astonishing story of one of the most successful yet least well-known “civil rights movements” in American history. Hardly oppressed like women and minorities, business corporations, too, have fought since the nation’s earliest days to gain equal rights under the Constitution?and today have nearly all the same rights as ordinary people.

Exposing the historical origins of Citizens United and Hobby Lobby, Adam Winkler explains how those controversial Supreme Court decisions extending free speech and religious liberty to corporations were the capstone of a centuries-long struggle over corporate personhood and constitutional protections for business. Beginning his account in the colonial era, Winkler reveals the profound influence corporations had on the birth of democracy and on the shape of the Constitution itself. Once the Constitution was ratified, corporations quickly sought to gain the rights it guaranteed. The first Supreme Court case on the rights of corporations was decided in 1809, a half-century before the first comparable cases on the rights of African Americans or women. Ever since, corporations have waged a persistent and remarkably fruitful campaign to win an ever-greater share of individual rights.

Although corporations never marched on Washington, they employed many of the same strategies of more familiar civil rights struggles: civil disobedience, test cases, and novel legal claims made in a purposeful effort to reshape the law. Indeed, corporations have often been unheralded innovators in constitutional law, and several of the individual rights Americans hold most dear were first secured in lawsuits brought by businesses.

Winkler enlivens his narrative with a flair for storytelling and a colorful cast of characters: among others, Daniel Webster, America’s greatest advocate, who argued some of the earliest corporate rights cases on behalf of his business clients; Roger Taney, the reviled Chief Justice, who surprisingly fought to limit protections for corporations?in part to protect slavery; and Roscoe Conkling, a renowned politician who deceived the Supreme Court in a brazen effort to win for corporations the rights added to the Constitution for the freed slaves. Alexander Hamilton, Teddy Roosevelt, Huey Long, Ralph Nader, Louis Brandeis, and even Thurgood Marshall all played starring roles in the story of the corporate rights movement.

In this heated political age, nothing can be timelier than Winkler’s tour de force, which shows how America’s most powerful corporations won our most fundamental rights and turned the Constitution into a weapon to impede the regulation of big business.

Recommended. — Joe

A practical guide to the European Union’s GDPR for American businesses

American businesses operating or serving customers in the EU must comply with the EU’s GDPR which becomes effective on May 25. A recent survey found that 91 percent of American businesses lack awareness surrounding the details of the GDPR, while 84 percent don’t understand the GDPR’s implications for their specific business. On Recode, Nancy Harris offers a practical guide to the European Union’s GDPR for American businesses. — Joe

The independence of federal law enforcement and Congress

From the abstract of Andrew Kent’s Congress and the Independence of Federal Law Enforcement, 52 U.C. Davis Law Review (Forthcoming 2018): “Not since the Nixon presidency has the issue of the professional neutrality and independence of federal law enforcement from White House interference or misuse been such a pressing issue. This article describes the problem, details Congress’s important role in responding to it during the 1970s, and makes specific recommendations for Congress today.” — Joe

DOJ independence and White House control

From the abstract of Andrew McCanse Wright’s Justice Department Independence and White House Control (2018):

Problematic relations between the White House and the U.S. Department of Justice stand out amidst the broader tumult of President Donald Trump’s first year in office. With respect to written policy restricting contacts between the White House staff and the Department, the Trump White House has followed the general contours of predecessor administrations. Those policies recognize that White House contacts restrictions vary with the Department’s complex functions, restrict channels of contact, and restrict personnel authorized to make contacts. They also grant limited exceptions where White House-Department contact is required to assist the President in the performance of a constitutional duty and contact would be appropriate from a law enforcement perspective. A number of episodes, however, suggest that the President and senior administration officials have not honored the spirit, and in some cases the letter, of that contacts policy.

One of the frequent criticisms leveled against President Trump is that he disregards many norms and traditions that have been observed by presidential administrations of both parties for decades. Restrictions on White House interference in criminal investigations do not merely protect norms. Rather, those policies also seek to prevent unconstitutional conduct by the President and his political appointees. This Article demonstrates that political interference by the President undertaken in bad faith could violate the Take Care Clause even in the absence of a criminal statute. Obstructive behavior is even worse. Whether or not the President is indictable for the commission of a statutory criminal offense of obstruction of justice during his tenure in office, this Article explains why the President may violate the Take Care Clause independently of criminal offenses.

A principle of political noninterference by the White House in the federal prosecution function in particular matters is consistent with Article II. Neither the Vesting Clause, the President’s position atop the Executive Branch, nor the President’s broader enforcement discretion defeat the anti-interference principles commanded by the Presidential Oath and the Take Care Clause. It is a question that goes to the very concept of Rule of Law itself. However, political processes, rather than justiciable legal proceedings, serve as the presumptive source of Take Care Clause enforcement as to White House-Department relations.

— Joe

Experiential legal research courses are a natural fit for the ABA’s experiential course requirements

Legal research courses are and have been for quite a while the “stepchild” in the legal education curriculum. But legal research is closely tied to each of the four competencies laid out by the ABA in Standard 301. Standard 301 could be transformative for legal research instruction if legal research courses are given the opportunity to fill necessary experiential learning gaps in legal education.

In The Need for Experiential Legal Research Education, 108 LLJ 511 (2016), Alyson Drake makes a strong case for experiential legal instruction. “Designating legal research courses as experiential would allow schools to both increase offerings in legal research and to meet the ABA’s newly-expanded six credit experiential course requirement for every student. When structured appropriately, stand-alone legal research courses clearly meet the requirements laid out in the simulation category of experiential courses.”

From the conclusion of Drake’s excellent article:

The primary goal of experiential legal instruction is to prepare students to do the type of work that awaits them as legal professionals. In response to frequent reports from employers and scholars that new hires’ research skills are lacking, the ABA now mandates that law schools produce attorneys who are practice-ready from day one. And since thirty-five percent of new attorneys’ time is spent conducting legal research, being practice-ready clearly requires that students practice and refine their research skills throughout law school. Experiential courses are the ABA’s answer for increasing students’ practice skills; as such, law schools need to embrace the experiential legal research course so more students have the opportunity to strengthen their research skills and the chance to enter the profession as practice ready professionals.

Recommended. — Joe

Buyer’s Guide suggests law-related AI companies have grown by 65% in the last year

According to the In-House Counsel’s LegalTech Buyer’s Guide 2018, the number of artificial intelligence companies catering to the legal field has grown by 65 percent in the last year, from 40 to 66. In his LawSites post, Bob Ambrogi offers some caveats:

First, its listing of AI companies is not complete. Most notably, it omits Thomson Reuters, whose Westlaw, with its natural-language processing, was one of the earliest AI products in legal. Thomson Reuters Labs and, within it, the Center for Cognitive Computing, are major initiatives devoted to the study of AI and data science. Just in January, TR rolled out an AI-powered product for data privacy law.

In addition, there are a number of small legal tech startups that are using AI but that are not included on this list.

Second, when the guide suggests that established players such as LexisNexis are joining the field, it should be pointed out, for the sake of accuracy, that LexisNexis, like TR, was using AI in its research platform well before most of these other players came along.

— Joe

The renaissance debate over printing English law: An intellectual history of law publishing

Here’s the abstract for The Commoning of the Common Law: The Renaissance Debate Over Printing English Law, 1520-1640, 146 Univ. of Penn. Law Review 323 (1998), by Richard J. Ross:

Should the laws of England be printed? What were the likely effects of different strategies of dissemination? From the early sixteenth century through the English Revolution, these questions framed a debate among English lawyers over the propriety, advantages and risks of legal publication. Advocates of law printing envisioned national unity, godliness, and social harmony flowing from the legal press as readily as quartos and folios. Opponents, like the barrister William Hudson, warned of releasing the inner reasons and fictions of the law “to the multitude, who are apt to furnish themselves with shifts to cloak their wickedness, rather than to gain understanding to further the government of the Commonwealth.” Participating in the expansion of law publishing underway in Elizabethan and early Stuart England, lawyers questioned print’s impact on a profession heavily dependent on manuscripts and oral tradition and on a nation reading lawbooks without the interpretive conventions imbued by legal training.

This essay pursues an intellectual history of law publishing. It explores lawyers’ uncertain, divisive, and changing opinions about the effects and meanings of the legal press – their attacks, defenses, interpretations, aspirations, and warnings.

The story unfolds in four sections. The first explores the initial justification of law printing offered in Henrician England, an echo of humanist and Protestant advocacy of textual dissemination as an agent of godly order. As it dissolved obscurantism, its friends claimed, the legal press solidified obedience to kingly authority against local, seigneurial, and ecclesiastical rivals.

The second section discusses how an emerging group of latter sixteenth-century skeptics such as Hudson, the “anti-publicists,” questioned these irenic predictions about the effects of lawbooks. Disorder, degeneracy, and disunion were their counter-prophesies. Absolutist and high church conformist suspicions of “publicity” inclined anti-publicists to disapprove of revealing the law’s inner reasons and fictions. They wanted it to speak in a voice of command, not persuasion.

The third section explores the contexts engendering the debate and making plausible the disputants’ contrasting prophesies about the effects of lawbooks. Three interrelated developments stand out: the growing lay audience putting lawbooks to political uses and undermining the tacit identification of the reading public with the profession; increasing episcopal and absolutist suspicion of the unwitting dangers of licit printing; and the gradual realization within the profession of how print reshaped the control of knowledge (and hence of status and power) among themselves and between themselves and the nation.

The fourth and final section reflects on how the controversy over law printing implicated a larger change in English legal culture: the “commoning” of the common law. In reaction to the anti-publicist critique, publicists helped further the gradual redefinition of the law as a national inheritance rather than a guild or royal possession. They defended popular right of access to the inner reasons of the law, valorized lay rather than royal or guild “ownership” of the law, and brought out the latent constitutionalist implications of legal printing. In the realm of perception, they helped transform the laws of the realm of England into the laws of Englishmen.

Interesting. — Joe

Pay discrimination lawsuit concludes with Univ. of Denver School of Law agreeing to consent decree

The University of Denver School of Law has settled a pay discrimination lawsuit with seven full-time female law profs by way of an EEOC consent decree. The settlement, which includes a $2.66 million monetary award, was announced Thursday. The law profs will receive back pay, compensatory damages and compensation increases stemming from an equal pay lawsuit brought in 2016 by the EEOC. Prior to the suit, the average salary of full-time female professors at the University of Denver School of Law was about $20,000 less than that of full-time male professors. For details, see this ABAJ article. — Joe

Quantifying Neil Gorsuch’s stylistic proclivities

Here’s the abstract for Nina Varsava’s Elements of Judicial Style: A Quantitative Guide to Neil Gorsuch’s Opinion Writing, 93 NYU Law Review Online (Forthcoming 2018):

Current discussions of judicial writing in the U.S. often feature Neil Gorsuch’s opinions. Despite the fervor around Gorsuch’s style and rhetoric, there have been no attempts to systematically quantify his stylistic proclivities. This article presents results from a quantitative study of published opinions from the Tenth Circuit Court of Appeals during Gorsuch’s tenure there. Through analyses of extensive stylistic data, I illuminate Gorsuch’s stylistic fingerprint, revealing, in quantitative terms, how Gorsuch has achieved the stylistic effect that has impressed many observers. I also analyze Gorsuch’s stylistic drift over the past decade, revealing trends that might give us a sense of what to expect from the Justice’s writing for the Supreme Court. I find that Gorsuch’s writing style is remarkably informal and unconventional compared to his Tenth Circuit peers. Moreover, Gorsuch’s opinions have a lot in common with fiction writing. They are often suspenseful, and they contain a broad range of vocabulary but limited legal jargon and citation. Regardless of the merit of Gorsuch’s writing style, it has captivated many readers, among both the public and the legal community. This paper pinpoints, in kind and degree, some of the properties that make Gorsuch’s writing stand out—properties that have helped form his reputation as a jurist.

H/T to Bob Ambrogi’s LawSites post. In his post Bob reports the results of testing Gorsuch’s opinions against BriefCatch, PerfectIt and WordRake. — Joe

RBG, the official trailer

— Joe


Would you pass the British citizenship test?

Meghan Markle reportedly will become a British citizen eventually. Like all applicants she will have to pass a citizenship text with at least a passing score of 18 out of 24 questions. Here’s the test. Did you pass it? — Joe