Author Archives: Joe Hodnicki

Weekend reading: McFaul’s From Cold War to Hot Peace: An American Ambassador in Putin’s Russia

From the blurb for Michael McFaul’s From Cold War to Hot Peace: An American Ambassador in Putin’s Russia (Houghton Mifflin Harcourt, May 8, 2018):

From one of America’s leading scholars of Russia who served as U.S. ambassador to Russia during the Obama administration, a revelatory, inside account of U.S.-Russia relations from 1989 to the present

In 2008, when Michael McFaul was asked to leave his perch at Stanford and join an unlikely presidential campaign, he had no idea that he would find himself at the beating heart of one of today’s most contentious and consequential international relationships. As President Barack Obama’s adviser on Russian affairs, McFaul helped craft the United States’ policy known as “reset” that fostered new and unprecedented collaboration between the two countries. And then, as U.S. ambassador to Russia from 2012 to 2014, he had a front-row seat when this fleeting, hopeful moment crumbled with Vladimir Putin’s return to the presidency. This riveting inside account combines history and memoir to tell the full story of U.S.-Russia relations from the fall of the Soviet Union to the new rise of the hostile, paranoid Russian president. From the first days of McFaul’s ambassadorship, the Kremlin actively sought to discredit and undermine him, hassling him with tactics that included dispatching protesters to his front gates, slandering him on state media, and tightly surveilling him, his staff, and his family.

— Joe

Tit-for-Tat Tariff Measures and U.S. Trade Policy

An excerpt from the CRS Report, Tit-for-Tat Tariff Measures and U.S. Trade Policy (IN10927 July 11, 2018):

As a result of Section 232 investigations launched by the Administration, the United States has unilaterally applied new tariffs on steel (25%), aluminum (10%), and potentially auto imports from the EU, Canada, Mexico, China, and other countries. Some countries were exempted, generally based on quota agreements to limit the amount of steel and/or aluminum exports to the United States. The last time a president had taken restrictive trade action under this law was based on a 1983 petition submitted by the U.S. machine tool industry.

— Joe

ASTM v. Public.Resource.org: Access to law cannot be conditioned on the consent of a private party [text]

As you may recall, PublicResource.org has been making available technical standards incorporated by reference in federal law contrary to the wishes of standards organizations that promulgate the standards. Yesterday, the DC circuit appeals court ruled that standards industry groups cannot control publication of binding laws and standards.

The federal district court for the District of Columbia ruled in favor of the standards organizations in 2017, and ordered PublicResorce.org not to post the standards. A three-judge panel of the Court of Appeals for the D.C. Circuit reversed that decision, ruling that the district court did not properly consider copyright’s fair use doctrine. It rejected the injunction and sent the case back to district court for further consideration of the fair use factors at play. “[I]n many cases,” wrote the court, “it may be fair use for [PublicResource.org] to reproduce part or all of a technical standard in order to inform the public about the law.”

As Judge Katsas wrote in his concurrence, the demands of the industry groups for exclusive control of the law “Cannot be right: access to the law cannot be conditioned on the consent of a private party.”

Here’s the text of the DC Circuit opinion in ASTM v. PublicResource.org. — Joe

CRS Report: Justice Anthony Kennedy: His Jurisprudence and the Future of the Court

An excerpt from Justice Anthony Kennedy: His Jurisprudence and the Future of the Court (R45256 July 11, 2018):

Unlike several other Justices on the Court, Justice Kennedy did not necessarily subscribe to a particular judicial philosophy, such as originalism or textualism. Instead, Justice Kennedy’s judicial approach seemed informed by a host of related principles. First, Justice Kennedy’s views on the law were often grounded in concerns for personal liberty, particularly freedom from government interference with thought, belief, expression, and certain intimate conduct. His emphasis on liberty manifested itself in a range of opinions he wrote or joined during his tenure on the Court, including on issues related to free speech, religious freedom, and government policies concerning same-sex relationships. Second, the structural protections of the Constitution—i.e., restraints imposed on the federal government and its respective branches by the doctrines of federalism and separation of powers—also animated Justice Kennedy’s jurisprudence. For Justice Kennedy, separation of powers was a “defense against tyranny,” and he authored or joined a number of Court opinions that invalidated on separation-of-powers grounds intrusions on the executive, legislative, or judicial functions. Likewise, during the Rehnquist Court and Roberts Court eras, Justice Kennedy joined several majority opinions that recognized federalism-based limitations on the enumerated power of the federal government, established external limitations on Congress’s legislative powers over the states, and reaffirmed protections for state sovereignty. Third, Justice Kennedy’s jurisprudence was undergirded by his view that the Court often has a robust role to play in resolving issues of national importance. With Justice Kennedy casting critical votes, over the last 30 years the Court has reasserted its role in a number of areas of law in which it was previously deferential to the judgment of the political branches.

— Joe

Russian national charged with conspiracy to act as foreign agent [text]

On Monday, the Justice Department unsealed a criminal complaint and supporting affidavit against Maria Butina, a Russian national, for conspiring to act as an unregistered foreign agent in violation of Title 18, Section 371 of the United States Code. — Joe

Does WEXIS use legal search user data in their surveillance search platforms?

Following up on this LLB post that asks “Does WEXIS use legal search user data in their surveillance search platforms?,” Sarah Lamdan reports via email about what transpired at CRIV’s Vendor Roundtable on Sunday. Sarah reports that LexisNexis denied using legal search user data in their surveillance search platform and Bloomberg Law stated it doesn’t save user data. “Thomson Reuters/Westlaw was notably silent,” Sarah observed.

Not discussed at CRIV’s vendor roundtable Sunday was the thornier issue for librarian professional ethics, namely that these companies are bidding on and contracting with ICE for surveillance purposes. See Sarah’s Surveillance and Legal Research Providers: What You Need to Know. — Joe

LexisNexis launches Lexis Analytics

Yesterday, LexisNexis launched Lexis Analytics. From the press release:

The suite consists of new and enhanced products fueled by smart content from Lexis Advance and the strategic acquisitions of Lex Machina, Intelligize and Ravel Law, and integrates the most powerful technologies in the legal space, including machine learning, artificial intelligence (A.I.) and visualization tools.

Most powerful? Thomson Reuters’ Westlaw Edge is offering stiff competition for analytics. For a review of the launch, see the following stories:

LexisNexis Launches Lexis Analytics, Putting A ‘Stake in the Ground’ to Claim the Legal Analytics Space, Bob Ambrogi, LawSites, uly 13, 2018

LexisNexis Launches Lexis Analytics, Leveraging Collective Power of Recent Acquisitions, LegaltechNews, July 12, 2018

— Joe

 

Westlaw Edge overview videos

Hap tip to Scott Frey for locating introductory videos of Westlaw Edge features. The videos cover litigation analytics, WestSearch Plus, KeyCite overruling risk, and statutes compare. Recommended. — Joe

Weekend reading: Kakutani’s The Death of Truth: Notes on Falsehood in the Age of Trump

Here’s the blurb for Michiko Kakutani, The Death of Truth: Notes on Falsehood in the Age of Trump (Tim Duggan Books, July 17, 2018):

We live in a time when the very idea of objective truth is mocked and discounted by the occupants of the White House. Discredited conspiracy theories and ideologies have resurfaced, proven science is once more up for debate, and Russian propaganda floods our screens. The wisdom of the crowd has usurped research and expertise, and we are each left clinging to the beliefs that best confirm our biases.

How did truth become an endangered species in contemporary America? This decline began decades ago, and in The Death of Truth, former New York Times critic Michiko Kakutani takes a penetrating look at the cultural forces that contributed to this gathering storm. In social media and literature, television, academia, and politics, Kakutani identifies the trends—originating on both the right and the left—that have combined to elevate subjectivity over factuality, science, and common values. And she returns us to the words of the great critics of authoritarianism, writers like George Orwell and Hannah Arendt, whose work is newly and eerily relevant.

With remarkable erudition and insight, Kakutani offers a provocative diagnosis of our current condition and points toward a new path for our truth-challenged times.

— Joe

Thomson Reuters launches Westlaw Edge

Calling Westlaw Edge the most significant release since WestlawNext in 2010, Thomson Reuters announced the launch of Westlaw Edge just in time to create a lot of buzz at AALL’s annual meeting. Is it buzz worthy? Well, I haven’t seen it but initial reports indicate that the AI-enhanced Westlaw Edge is more that just an incremental upgrade.

To dive into this new development ahead of AALL 2018, check out the below articles:

Move Over Westlaw – Meet the Next-Generation Westlaw Edge, With Advanced AI and Analytics, Bob Ambrogi, LawSites, July 12, 2018

Thomson Reuters Launches Westlaw Edge, West Search Plus, Analytics, Enhanced Citator and More, Jean O’Grady, Dewey B Strategic, July 12, 2018

A Deep Dive Into the Tech Upgrades in Thomson Reuters’ Westlaw Edge, Legaltech News, July 12, 2018

Westlaw Edge will be offered as an upgrade from Westlaw for current Westlaw subscribers. Westlaw will be phased out in 2024. I wonder if Thomson Reuters is going to repeat the pricing mistake the company made at the launch of WestlawNext by trying to charge a 10% premium for Westlaw Edge? It didn’t work for WestlawNext. I doubt it will work with Westlaw Edge. — Joe

Questioning WEXIS as big data surveillance vendors by AALL member legal search users

As Sarah Lamdan has documented both Thomson Reuters and RELX are supplying search solutions for their compiled surveillance data to law enforcement agencies, including ICE. She has also called attention to the ethical issues information professionals face in light of this development.

One issue that affects law librarians who use WEXIS legal search services is the extent to which, if any, there is cross-pollination of usage data from WEXIS legal search platforms to their surveillance search platforms. One would think our WEXIS representatives would be able to answer one simple yes/no question — Does WEXIS use legal search user data in their surveillance search platforms?

Hopefully this question will be asked and answered straightforwardly at CRIV’s Vendor Roundtable Sunday. That assumes WEXIS will send company representatives to the roundtable to serve as participants, not just observers, and further assumes that WEXIS responses will not hide behind a “proprietary information” response.

This matter may lead to further investigations by CRIV and, perhaps may require AALL Executive Board involvement. This Sunday’s vendor roundtable may be one of the most interesting roundtables in recent memory.

CRIV Vendor Roundtable
Sunday, July 15
1:00 p.m.-2:00 p.m.
Hilton Key Ballroom 9

— Joe

Who is Brett Kavanaugh?

Here’s four profile pieces to read more about Trump’s nominee for the Supreme Court.

Brett Kavanaugh, Trump’s Supreme Court pick, has sided with broad views of presidential powers, Washington Post, July 9, 2018

Brett Kavanaugh: Everything you need to know about Trump’s new Supreme Court candidate, Independent, July 10, 2018

Who is Judge Brett Kavanaugh? Trump’s Supreme Court nominee, Boston.com, July 10,2018

Who Is Brett Kavanaugh, President Trump’s Pick For The Supreme Court?, NPR, July 9, 2018

— Joe

Surveillance and Legal Research Providers: What You Need to Know

By Sarah Lamdan

Legal research companies are selling surveillance data and services to law enforcement agencies including ICE. Their participation in government surveillance raises ethical questions about privacy, confidentiality and financial support: How private is your search history when your legal research vendors also sell surveillance data? Are you funding products that sell your patrons’ and clients’ data to ICE and other law enforcement agencies?

Historically, librarians have protected people from unwanted surveillance and safeguarded intellectual freedom. How do librarians uphold their privacy and intellectual freedom standards when they rely on surveillance companies for their research resources?

Thomson Reuters, RELX, and ICE Surveillance

Since September 11, 2001, permissive surveillance laws and improving data technology have created a huge market for big data policing products. Thomson Reuters and Reed Elsevier (now branded as RELX), the companies that own Westlaw and Lexis, are competing for contracts to supply troves of personal data and search technology to the government. Both companies have expanded their product lines to take advantage of lucrative surveillance opportunities. Since 2017, Thomson Reuters and RELX have bid on contracts to help ICE track hundreds of thousands of immigrants and target them for arrest.

Thomson Reuters and RELX have quietly been developing surveillance tools for years. In 2004, Reed Elsevier purchased Accurint, a huge personal information data system. By 2006, Lexis had the world’s largest electronic legal, news, and public records collection. In 2015, Reed Elsevier rebranded itself as RELX and moved further away from traditional academic and professional publishing. This year, the company purchased ThreatMetrix, a cybersecurity company that specializes in tracking and authenticating people’s online activities, which even tech reporters saw as a notable departure from the company’s prior academic publishing role.

Thomson Reuters, Westlaw’s company, has also changed its business to compete in the surveillance data and technology market. Thomson Reuters Special Services (TRSS) was developed to sell surveillance products, and TRSS CEO Stephen Rubley joined the board of the ICE Foundation. Thomson Reuters has signed three contracts to provide ICE with surveillance services totaling over $26 million. The contracts include:

  1. A contract to provide ICE access to Thomson Reuters’ Consolidated Lead Evaluation and Reporting (CLEAR) system, which contains information that ICE uses to identify and target suspects, businesses and assets for arrest, seizure, and forfeiture.  CLEAR provides access to billions of records, sourced from both government agencies and private suppliers. RELX’s Accurint is CLEAR’s main competitor. The product interfaces with law enforcement agency databases in real-time, feeding data through Palantir’s FALCON analysis system, Peter Thiel’s “automated policing” technology that decides whether people should be targeted for investigation.
  2. A contract to integrate license plate recognition (LPR) data into the CLEAR system. LPRs are roadside cameras that automatically photograph passing license plates and convert the images into a computer-readable format, creating a “read” that contains license plate numbers and registration data, vehicles’ makes and models, camera IDs that include passenger IDs in some cases, GPS coordinates, and the time and date each photograph was taken to pinpoint peoples’ locations. The International Association of Chiefs of Police has warned that using LPRs could violate the First Amendment, and in 2015, the DHS cancelled its bid for LPR services after a privacy impact assessment raised red flags. However, in 2017, the agency went ahead and purchased LPR services from Thomson Reuters and a company called Vigilant Solutions.
  3. A contract to give ICE “subscription data services” that continuously monitor and alert ICE about changes to immigrant’s FBI numbers; State Identification Numbers; jail booking data; credit history; insurance claims; phone number account information; wireless phone accounts; wire transfer data; driver’s license information; vehicle registration information; property information; payday loan information; public court records; incarceration data; employment address data; Individual Taxpayer Identification Number (ITIN) data; and employer records. (RELX also expressed interest in this contract, but lost out to Thomson Reuters, according to the Sole Source Justification records.)

More surveillance contracts are likely on the way to help ICE reach its goal of generating at least 10,000 leads per year for deportation and visa denial. Thomson Reuters and RELX will likely bid on those contracts, too. Representatives from both companies attended ICE’s investor day event for its controversial Visa Lifecycle Vetting Initiative (VLVI), or Extreme Vetting program. ICE wanted to hire a data company to surveill social media profiles and predict who should be allowed in the U.S., but ICE shelved the program because the companies had not yet developed the technology the agency wanted. Once the companies make the right surveillance tools, ICE will probably want to pay for them.

Why does this matter to law librarians?

Thomson Reuters’ and RELX’s expansion into big data surveillance products has changed their relationships with law librarians. The new business models mean that law product purchasers are no longer the companies’ top priority customers. As Thomson Reuters and RELX work to entice law enforcement customers, law librarians have been moved down the queue. Westlaw and Lexis have become less flexible and forthcoming about contracts while providing less customer service.

Even as customer relations decline, AALL treats the companies like colleagues rather than service providers and censors librarians’ conversations about their surveillance contracts.  But not talking about these issues does not change the fact that Lexis and Westlaw are no longer mom n’ pop law companies. Like other companies, they operate less like publishers and more like data supercenters. Westlaw and Lexis legal product packages now sit on virtual megastore shelves next to the law-adjacent “risk solution” law enforcement surveillance products, and the legal products help the companies leverage surveillance product sales to law enforcement agencies. Law librarians no longer have a clear understanding of their vendors’ practices as law libraries are one of many profit sources for corporations that also sell data to entities whose ethical practices might violate librarians’ professional codes.

Librarians protect their patrons’ privacy. The American Library Association’s Code of Ethics requires that librarians safeguard people’s personal information and ensure that people seeking information do not become surveillance targets. Moreover, the Code says that librarians must not advance private interests, including those of vendors, at the expense of library users. Librarians are responsible for protecting intellectual freedom against surveillance efforts.

Librarians also support the ethical use of information. The ACRL Framework for Information Literacy emphasizes the ethical use of information, data, and scholarship. The AALL Legal Research Competencies and Standards state that a successful legal researcher “distinguishes between ethical and unethical uses of information” and the Boulder Statement on Legal Research Education specifies that legal research instruction should include “an ongoing examination of professional standards, including the identification of ethical responsibilities.”

Lexis and Westlaw’s companies’ expansion into surveillance products implicates librarians’ ethical obligations in several ways:

  1. Confidentiality and Privacy: When legal research vendors sell surveillance data to enforcement agencies, they risk the confidentiality of the data collected by their legal research product. If surveillance is their market, what happens to data tracking Westlaw and Lexis log-ins, search histories, and document views? Client confidentiality is a cornerstone of the legal profession. With few exceptions, lawyers are obligated to keep client information from enforcement agencies’ reach. While product reps may say that searches on their law products are private, neither company has issued any official assurances that they would not funnel lawyers’ search histories into their other products. Thomson Reuters’ privacy statement says that the company can use subscribers’ information (which includes browsing history and search terms) “for the prevention, detection or investigation of a crime or other breach of law or requirement, loss prevention or fraud” or “to comply with requests from courts, law enforcement agencies, regulatory agencies, and other public and government authorities.” Without affirming a commitment to search confidentiality, Westlaw and Lexis users cannot be sure that either product would defy their government clients’ requests for legal research data.
  2. The Ethical Use of  Information: When law librarians and legal professionals buy legal research services from vendors that are developing surveillance products for ICE and other enforcement entities, chances are high that the money funds surveillance research and development. Buying Westlaw’s legal products gives Thomson Reuters ample overhead to build a “digital deportation machine” for ICE. Contracting with research vendors that fuel government surveillance and help ICE carry out ethically fraught programs raises critical information literacy issues ripe for discussion by law library professionals.

ICE surveillance data may be used to target noncriminal residents for denaturalization and to locate and arrest people at schools, at courthouses, in hospitals, at work, and at their homes. Some companies are refusing to use and work with companies that build ICE surveillance systems as ICE’s surveillance and enforcement practices raise numerous ethical and legal concerns. Lawyers, including the ABA, have called ICE’s practices unconstitutional and unethical.

Editor’s Note: I want to thank Sarah for calling her article to my attention and allowing me to republish it on LLB. The article was originally published on Medium on July 6th. See also Sarah’s earlier LLB post on this subject here. — Joe

Tying controversy: AALL statement on July 2 meeting with Lexis representatives

Here’s the text of the eBriefing emailed to AALL members today:

In response to the June 7 letter sent by AALL’s attorney to LexisNexis, AALL and Lexis leadership met in Chicago on July 2. Those in attendance were Greg Lambert, AALL president, Kate Hagan, AALL executive director, James P. Fieweger, AALL counsel, and Lexis representatives Sean Fitzpatrick, managing director of North American research solutions, Paul Speca, vice president, large law & law school markets, Jeffrey Pfeifer, vice president, product management, and Logan Breed, counsel.

The purpose of the meeting was to discuss member concerns regarding a recent LexisNexis sales practice that ties access to its electronic and print publication products to the purchase of a license to Lexis Advance.

AALL had a series of questions it wanted addressed regarding the new policy. Specific questions included the terms of the policy, why the policy was put in place at this time, and why members who were able to purchase stand-alone Lexis print and electronic products in the past are now required to purchase Lexis Advance for access to those products.

Lexis advised AALL it is unable to discuss any product packaging or pricing matters, except with their customers, since each relationship is customized to meet the firm’s needs, and because Lexis has negotiated NDAs with all of its customers.

They also reiterated their earlier statement: “As we retire Lexis.com this year and upgrade users to Lexis Advance, we will more fully leverage our platform that consolidates all content and tools to one ecosystem.”

AALL also could not confirm what markets the new sales policy affects, but to date, we have only heard from law firm members regarding this change.

AALL President Greg Lambert strongly urged Lexis leadership to reconsider the new practice. While we do not anticipate that will occur, he further urged that they communicate fully to the membership and to their individual customers at the local level the specifics of this new sales practice and how it will affect them when renewing their Lexis contracts.

AALL will continue to pursue any rights we might have in addressing these product-tying policies. In the meantime, it is important members are aware that the Lexis strategy of tying its print and electronic products to the purchase of Lexis Advance is an issue affecting the legal information marketplace. Members, especially those working in law firms, should work with firm leadership to inform them of these changes and the implications for the firm’s legal information and research needs. Members should also communicate directly with their assigned Lexis representatives to discuss what terms and conditions may or may not be available to them as customers of Lexis.

— Joe

 

Weekend reading: Dershowitz on the case against impeaching Trump

From the blurb for The Case Against Impeaching Trump, (Hot Books, July 9, 2018):

The Case Against Impeaching Trump seeks to reorient the debate over impeachment to the same standard that Dershowitz has continued to uphold for decades: the law of the United States of America, as established by the Constitution. In the author’s own words:

“In the fervor to impeach President Trump, his political enemies have ignored the text of the Constitution. As a civil libertarian who voted against Trump, I remind those who would impeach him not to run roughshod over a document that has protected us all for two and a quarter centuries. In this case against impeachment, I make arguments similar to those I made against the impeachment of President Bill Clinton (and that I would be making had Hillary Clinton been elected and Republicans were seeking to impeach her). Impeachment and removal of a president are not entirely political decisions by Congress. Every member takes an oath to uphold the Constitution of the United States, and the Constitution sets out specific substantive criteria that MUST be met.

I am thrilled to contribute to this important debate and especially that my book will be so quickly available to readers so they can make up their own minds.”

— Joe

What-if: Taking “legal or commercial action” against LexisNexis for its anticompetitive tying sales strategy

On July 2nd, AALL representatives met with LexisNexis representatives to discuss the company’s anticompetitive tying sales strategy. No official word on the outcome. (Not sure one should even expect an outcome after only one meeting. ) Until members hear something, this matter can be viewed as a work-in-progress. However, what if it wasn’t?

In its letter to LexisNexis CEO Mike Walsh, AALL called for an open dialog over the company’s anticompetitive tying sales strategy. If that failed, our association warned of taking “legal or commercial action” against the company. Assuming for this post that dialog does not produce our association’s desired outcome, the cessation of tying print and ancillary products to a Lexis Advance license, then taking legal or commercial action would be costly to AALL’s treasury.

It goes without saying that legal action would be very expensive (unless an AALL-member law firm would take the matter pro bono). The outcome would be unpredictable.  But this option is more likely in getting Lexis to change its sales policy.  Only someone with expertise in antitrust law (meaning not me) can evaluate this option.

Less unpredictable but also less likely to be as effective as legal action is taking “commercial action.” Commercial action could range from no longer accepting Lexis advertising revenue in AALL publications like LLJ and Spectrum, to a ban from AALL’s annual meeting and its exhibit hall, to a complete ban from all sanctioned activities of AALL and its chapters. Commercial action could be fairly expensive for our association too in some instances.

Using FY2018 budget data as a basis for illustrating future consequences, estimated total advertising revenue from Spectrum is $60,000 and from LLJ is $3,800.  That’s hardly a large amount. Spectrum and LLJ are already costing AALL more than the total revenue generated with an estimated annual net deficit of $114,928 for both. Not knowing what portion of Spectrum-LLJ ad revenue comes from Lexis, let’s just assume that the company pays AALL about $30,000. If so, simply banning Lexis from advertising would not hurt AALL’s bottom line that much. AALL would still end up with an estimated adjusted total budget surplus of $50,000 because AALL’s estimated total annual surplus for FY2018 is only $82,260. For such an egregious violation of fair business practices and possible antitrust violations simply banning LN from advertising just does not seem a proportional response. More is needed.

What’s needed in this what-if scenario is denying LN participation in our annual meeting and its exhibit hall until LN changes its sales policy. Not allowing LN a presence at our 2019 annual meeting (and later annual meetings as well) is justified. The company’s tying ultimatum deserve a similar take it or leave it action from AALL.

I cannot estimate what this annual meeting ban would cost AALL (but AALL administrators could). However I believe the ban would negatively impact our association’s annual budget surplus, turning a surplus of $82,260 into an annual net budget deficit amounting to low six figures. And if AALL decided to ban the company from our annual meeting, AALL would have to raise income some way, most likely in ways that directly affect rank-and-file law librarians.

So… is it still worth it? Yes. — Joe

Agency Interpretations of Executive Orders

Here’s the abstract for Matthew Chou’s Agency Interpretation of Executive Orders (April 6, 2018):

Executive orders are an important tool of presidential power that often rely on agencies to interpret and implement them. Moreover, agency interpretations of executive orders frequently arise in court. However, neither courts nor commentators have developed a well-reasoned interpretive methodology for agency interpretations of executive orders. Instead, relevant case law essentially has not developed since 1965, notwithstanding landmark shifts in administrative law marked by Chevron, Auer, and their progeny. This Article proposes a new legal test that both (i) reflects modern understandings of legal interpretation and (ii) outlines when courts should defer to an agency’s interpretation of an executive order.

CRS Reports on the Supreme Court Appointment Process

Here are five CRS reports that address the Supreme Court appointment process:

  1. Supreme Court Vacancies: Frequently Asked Questions, March 31, 2016 R44440
  2. President’s Selection of a Nominee for a Supreme Court Vacancy: Overview, June 27, 2018 IN10923
  3. Supreme Court Appointment Process: President’s Selection of a Nominee, June 27, 2018 R44235
  4. Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, March 17, 2017 R44236
  5. Supreme Court Appointment Process: Senate Debate and Confirmation Vote, October 19, 2015 R44234

— Joe

Trump’s Corrupt Use of the Pardon Power

From the abstract for Mark Greenberg and Harry Litman, Trump’s Corrupt Use of the Pardon Power, Lawfare, June 19, 2018:

In no aspect of his presidency has Trump acted more immorally and done more damage to the rule of law and constitutional norms than in his exercise of the pardon power. He has granted only five pardons, far fewer than any modern president at a comparable stage. And the immediate practical consequences of these pardons have been modest relative to the havoc he has wreaked with other endeavors — for example, his all-out assault on federal law enforcement institutions. But his pardons violate core principles of justice and appear designed to settle scores with enemies and to encourage allies to resist cooperation with the Mueller investigation. At times, Trump appears almost gleeful about using the pardon power in a manner directly contrary to its purpose.

Three of his pardons — the recent surprise grant to conservative political commentator Dinesh D’Souza; the April grant to Scooter Libby, former adviser to Vice President Dick Cheney; and the pardon of Sheriff Joe Arpaio last August — involve grave abuses of presidential power. Each of these pardons was a debasement of the pardon power and an egregious affront to constitutional norms and the rule of law.

— Joe

Ohio joins list of states enacting UELMA

On Friday, June 29th, Ohio Governor John Kasich signed SB 139 into law, making the state of Ohio the 18th state to enact the Uniform Electronic Legal Material Act.

H/T Kathy Dugan, Cleveland Law Library. — Joe