Author Archives: Joe Hodnicki

Library of Congress publishes new digital scans of James Madison’s Notes of the Constitutional Convention

Don’t know how I missed this but here is the link to the new digital scans of James Madison’s Original Notes on Debates at the Federal Constitutional Convention, 1787, which Lynn Uzzell calls “exquisite” in her take on the new scans. — Joe

Who owns data? No one?!

Lothar Determann’s No One Owns Data (Feb. 14, 2018) “begins with a brief review of the current landscape of the Internet of Things notes explosive growth of data pools generated by connected devices, artificial intelligence, big data analytics tools and other information technologies. Part 1 lays the foundation for examining concrete current legal and policy challenges in the remainder of the article. Part 2 supplies conceptual differentiation and definitions with respect to “data” and “information” as the subject of rights and interests. Distinctions and definitional clarity serve as the basis for examining the purposes and reach of existing property laws in Part 3, including real property, personal property and intellectual property laws. Part 4 analyzes the effect of data-related laws that do not grant property rights. Part 5 examines how the interests of the various stakeholders are protected or impaired by the current framework of data-related laws to identify potential gaps that could warrant additional property rights. Part 6 examines policy considerations for and against property rights in data. Part 7 concludes that no one owns data and no one should own data.” — Joe

Taking control of the DOJ by the White House: The Presidential Oath and the Take Care Clause

Here’s the abstract for Andrew McCanse Wright’s Justice Department Independence and White House Control (February 18, 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.

See also LLB’s Intra-branch checks and balances: Presidential control of the DOJ (March 6, 2018). — Joe

Weaponizing your digital footprint because computer-based personality judgments are more accurate than those made by humans

Computer-based personality judgments are more accurate than those made by humans, PNAS January 27, 2015. 112 (4) 1036-1040, by Wu Youyou, Michal Kosinski and David Stillwell was one of the building blocks for the development of products and services sold to clients by firms like Cambridge Analytica. The study compares the accuracy of personality judgment —- a ubiquitous and important social-cognitive activity —- between computer models and humans. Using several criteria, the authors show that computers’ judgments of people’s personalities based on their digital footprints are more accurate and valid than judgments made by their close others or acquaintances (friends, family, spouse, colleagues, etc.). The study’s findings highlight that people’s personalities can be predicted automatically and without involving human social-cognitive skills. — Joe

Meet Christopher Wylie, the whistle-blowing creator of “Steve Bannon’s psychological warfare mindfuck tool” at Cambridge Analytica

The Guardian’s Carole Cadwalladr profiles Christoper Wylie, a 20-something former Cambridge Analytica employee who Cadwalladr describes as “the data nerd who came in from the cold” because of his revelations of how Cambridge Analytica weaponized Facebook profiles for political campaigns. The article is part of a series of features about Cambridge Analytica published by The Guardian. Recommended. — Joe

Facebook press release clarifies that acquisition of 50 million user profiles was not a data breach

In a press release announcing that UK psychology professor Aleksandr Kogan and Cambridge Analytica have been suspended from Facebook, the Company explained how the user profiles were obtained:

The claim that this is a data breach is completely false. Aleksandr Kogan requested and gained access to information from users who chose to sign up to his app, and everyone involved gave their consent. People knowingly provided their information, no systems were infiltrated, and no passwords or sensitive pieces of information were stolen or hacked.

Although Kogan gained access to this information in a legitimate way and through the proper channels that governed all developers on Facebook at that time, he did not subsequently abide by our rules. By passing information on to a third party, including SCL/Cambridge Analytica and Christopher Wylie of Eunoia Technologies, he violated our platform policies. When we learned of this violation in 2015, we removed his app from Facebook and demanded certifications from Kogan and all parties he had given data to that the information had been destroyed. Cambridge Analytica, Kogan and Wylie all certified to us that they destroyed the data.

Beware of signing up for data-sharing apps. — Joe

Claims of neutrality in SCOTUS confirmation hearings have negative effects on the legitimacy of the Court as an institution

Here’s the abstract for Carolyn Shapiro’s The Language of Neutrality in Supreme Court Confirmation Hearings, Dickinson Law Review, Forthcoming:

At Justice Neil Gorsuch’s confirmation hearing, then-Judge Gorsuch repeatedly insisted that judging involves no more than examining the legal materials — like statutes and precedents — and applying them to the facts of the case. There is, he emphasized, no room for a Justice’s “personal views,” and he refused even to state his agreement (or disagreement) with such iconic cases as Loving v. Virginia and Griswold v. Connecticut. Instead, then-Judge Gorsuch reiterated only that they were precedents of the Court and thus entitled to respect. Frustrating as his answers may have been to some Senators, however, they differed from answers given by other recent nominees largely in degree and tone, not in kind. Indeed, all four most recent nominees before Gorsuch — but especially Chief Justice Roberts and Justice Sotomayor — made similar claims, of which Roberts’s invocation of the neutral umpire is only the most famous.

Such forceful claims of neutrality and their attendant implication that there are necessarily right and wrong answers to difficult legal questions — answers that can be determined through deductive reasoning or by examining legal texts through the right lens — are not new, but their role and prominence in Supreme Court confirmation hearings have changed over the years. Using both qualitative and quantitative analysis, including empirical research on confirmation hearings already reported, this Article charts the history of such discussions in Supreme Court confirmation hearings from Justice Harlan’s hearing in 1955 through Justice Gorsuch’s hearing in 2017 — the period of time during which all nominees have been expected to appear before the Senate Judiciary Committee. More specifically, the Article focuses on the extent to which nominees and Senators have claimed that there are objectively correct answers to the hard questions faced by the Supreme Court or, alternatively, have acknowledged and discussed the reality that textual and historical sources often do not provide clear answers and that Supreme Court Justices must balance competing interests, precedents, and constitutional principles and apply constitutional provisions and doctrines in new and complex factual circumstances.

Specifically, the Article establishes that during the Warren court years, claims of objectivity were often made by conservative Senators, with relatively little discussion of alternative views of judging by either Senators or nominees. By the late 1980s and 1990s, however, Senators and nominees were having surprisingly candid conversations about the role of the Supreme Court, conversations that acknowledged the importance of judgment and judicial philosophy in resolving many difficult constitutional questions. Since 2000, however, nominees have largely eschewed such discussions and, along with Republican Senators, have embraced claims of objectivity and neutrality.

As the Article demonstrates, however, such claims about the Court and its work are highly inaccurate, and they may have negative effects on the legitimacy of the Court as an institution. After all, when the Court announces its decisions in difficult cases, members of the public can plainly see that different Justices both approach those cases differently and often disagree about the result in predictable ways. News media regularly refer to the “liberal” and “conservative” Justices. So there is a significant disconnect between the claims made during confirmation hearings and the actions the Justices take — and research suggests that such a disconnect can undermine public confidence in the institution. The Article closes by proposing that Senators use their questions during confirmation hearings to combat the myth that judging, especially on the Supreme Court, is necessarily about reaching objectively correct, logically deducible conclusions.

— Joe

Pilot program will try to integrate SSRN and Bepress platforms

Last week, SSRN and Bepress announced a joint pilot to explore integration between their two platforms. The four-month pilot launches today with the participation of Columbia Law School’s Arthur W. Diamond Law Library and University of Georgia School of Law’s Library. From the Bepress press release:

Both bepress and SSRN are eager to explore potential solutions to the obstacles that professional schools and their libraries face in promoting their open access scholarship. The initial pilot offers one possible model for demonstrating the increased reach of legal scholarship when work is available through an open access repository as well as a specialized network of peers, by simplifying population of and aggregating research impact from both platforms.

Wait ‘n see. — Joe

Search engines, social media and the editorial analogy

A snip from the abstract from Heather M. Whitney’s Search Engines, Social Media, and the Editorial Analogy (Mar. 1, 2018):

Some prominent commentators claim that Facebook is analogous to a newspaper and that its handling of a feature like Trending Topics is analogous to a newspaper’s editorial choices. As a result, these commentators find congressional scrutiny of such matters to be constitutionally problematic. Moreover, the editorial analogy has been a remarkably effective shield for these tech companies in litigation. In a series of lower court cases, Google and others have argued that their decisions concerning their platforms — for example, what sites to list (or delist) and in what order, who can buy ads and where to place them, and what users to block or permanently ban — are analogous to the editorial decisions of publishers. And like editorial decisions, they argue, these decisions are protected “speech” under the First Amendment. While mostly wielded against small-fry, often pro se plaintiffs, courts have tended to accept this analogy wholesale.

Large consequences hinge on whether the various choices companies like Facebook and Google make are indeed analogous to editorial “speech.” The answer will partly determine whether and how the state can respond to current challenges ranging from the proliferation of fake news to high levels of market concentration to the lack of ad transparency. Furthermore, algorithmic discrimination and the discrimination facilitated by these platforms’ structures affect people’s lives today and no doubt will continue to do so. But if these algorithms and outputs are analogous to the decisions the New York Times makes on what to publish, then attempts to extend antidiscrimination laws to deal with such discrimination will face an onslaught of potentially insuperable constitutional challenges. In short, these companies’ deployment of the editorial analogy in the First Amendment context poses a major hurdle to government intervention.

Whether, or to what extent, the editorial analogy should work as a shield against looming legislation and litigation for companies like Facebook and Google is something this historical moment demands we carefully consider. My primary aim in this paper is to do just that. I will engage critically with, and ultimately raise questions about, the near-automatic application of the editorial analogy. The core takeaways are these: (1) we should be cognizant of the inherent limitations of analogical reasoning generally and of the editorial analogy specifically; (2) whether these companies’ various outputs should receive coverage as First Amendment “speech” is far from clear, both descriptively and normatively; (3) the proposition that regulations compelling these companies to add content (disclaimers, links to competitors, and so on) compel the companies to speak is also far from clear; and, finally and most crucially, (4) given the limits of analogical reasoning, our future debates about First Amendment coverage should focus less on analogy and more on what actually matters — the normative commitments that undergird free speech theory and how our choices either help or hinder their manifestations.

Interesting. — Joe

Russian cyber actors for interference with the 2016 U.S. elections and malicious cyber-attacks finally sanctioned by Trump administration

Announced Thursday, the Treasury Department enacted what amounts to the most stringent punishment yet by Trump for Russia’s election interference. The new sanctions, which include individuals indicted by the Special Counsel, finally met the Countering America’s Adversaries Through Sanctions Act’s mandate to impose measures punishing Moscow for its cyber intrusion.

For general background, see this CRS report — Overview of U.S. Sanctions Regimes on Russia (IN10634, July 11, 2017). — Joe

Huddleston’s Fastcase: The Definitive Guide published by ABA

From the blurb for Fastcase: The Definitive Guide (ABA (2018) by Brian Huddleston:

The days when lawyers could run up hundreds or thousands of dollars in expenses from one of the “big three” legal research services and bill those amounts to their clients are long gone. And, as any lawyer knows, time is money. If you’re a lawyer using Fastcase, you already know how to use your legal research budget and your time efficiently. This book will help you put Fastcase and your valuable time to even better use. It will also show you some features you didn’t even know it had.

If you’re new to Fastcase, get ready to learn how to use this invaluable legal research tool and work with the variety of resources it gives you, from case law to statutes, regulations, and more. More than 25 state bar associations now provide Fastcase to their members; if yours is one of them (or if you have your own subscription) you can’t be without this helpful guide!

Recommended for all Fastcase users. — Joe

Library Journal announces Movers & Shakers 2018

Learn about the change agents, community builders, digital developers, educators and innovators here. — Joe

Information wants to be expensive, not free

From Dieter Zinnbauer’s Information Wants to Be Expensive, Not Free! And this is Bad for Justice, Democracy, the Economy (Mar. 1, 2018):

This essay is rather speculative. I argue that there is a very much overlooked characteristic of information goods, particularly digital information goods – that leads to a substantive, yet rarely discussed market failure with far-reaching consequences for important classes of information related to our education and research system, the judiciary, markets and democracy at large.

This overlooked feature is the positionality of many information goods. Positionality means that the utility of a specific information item for user x depends on the level of consumption of the same item by other users. Specific types of information are more valuable (or at times only valuable), when they are very exclusively available only to a small band of users. Or more intuitively, the fewer other people have a specific piece of information at a given point in time, the more valuable it may be to me.

Surprisingly, this simple characteristic is rarely discussed in the information literature or perhaps seems just too obvious to merit deeper analysis. Yet, as I will try to show, the positionality of information has far-reaching implications for the functioning of information markets and for the actual incentive systems of different players that all too often seem to be mis-construed as overly pro-social. And putting a focus on positionality also highlights the relevance and urgency for revisiting related regulatory policies, in order to ponder possible corrective interventions to tackle the ensuing informational imbalances and exclusive practices that positionality-oriented pricing structures for such information will generate.

Recommended. — Joe

Weekend reading: Russian Roulette: The Inside Story of Putin’s War on America and the Election of Donald Trump

Here’s the blurb for Russian Roulette: The Inside Story of Putin’s War on America and the Election of Donald Trump (Twelve, Mar. 13, 2018) by Michael Isikoff and David Corn:

RUSSIAN ROULETTE is a story of political skullduggery unprecedented in American history. It weaves together tales of international intrigue, cyber espionage, and superpower rivalry. After U.S.-Russia relations soured, as Vladimir Putin moved to reassert Russian strength on the global stage, Moscow trained its best hackers and trolls on U.S. political targets and exploited WikiLeaks to disseminate information that could affect the 2016 election.

The Russians were wildly successful and the great break-in of 2016 was no “third-rate burglary.” It was far more sophisticated and sinister — a brazen act of political espionage designed to interfere with American democracy. At the end of the day, Trump, the candidate who pursued business deals in Russia, won. And millions of Americans were left wondering, what the hell happened? This story of high-tech spying and multiple political feuds is told against the backdrop of Trump’s strange relationship with Putin and the curious ties between members of his inner circle — including Paul Manafort and Michael Flynn — and Russia.

RUSSIAN ROULETTE chronicles and explores this bizarre scandal, explains the stakes, and answers one of the biggest questions in American politics: How and why did a foreign government infiltrate the country’s political process and gain influence in Washington?

Recommended. — Joe

ABA issues formal opinion on law blogging

ABA Formal Opinion 480 concludes that lawyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules. — Joe

Trump administration releases war powers report [text]

The recently released report is the topic of Lawfare’s We Read the New War Powers Report So You Don’t Have To. — Joe

Which legal novel deserves a shot at being the greatest work of legal fiction of all time?

Above the Law wants to know because it is conducting its March Madness poll about the best legal fiction. You have until Monday, March 19 at 9:00 a.m. Eastern to cast your votes here. — Joe

The constitutionality of censuring the President

Two pending House resolutions would condemn and censure President Trump if passed. They are H.Res. 496 and H.Res. 700. From The Constitutionality of Censuring the President (Legal Sidebar 10096, Mar. 12, 2018): “While each house of Congress has authority to discipline its own Members through censure, congressional censure of the President is rare. For that reason, there seems to be a recurring question as to whether Congress has the constitutional authority to adopt such a measure at all. As discussed below, it would appear that Congress may censure the President through a simple (one chamber) or concurrent (two chamber) resolution, or other non-binding measure, so long as the censure does not carry with it any legal consequence.” — Joe

The dictionary as a specialized corpus

Here’s the abstract to Jennifer Mascott’s The Dictionary as a Specialized Corpus, B.Y.U. L. Rev., 2018 Forthcoming:

Scholars consider reliance on dictionary definitions to be the antithesis of objective, big-data analysis of ordinary meaning. This Article contests that notion, arguing that when dictionaries are treated as a specialized database, or corpus, they provide invaluable textured understanding of a term. Words appear in dictionaries both as terms being defined and as terms defining other words. Examination of every reference to a contested term throughout a dictionary’s definitional entries of other words may substantially benefit statutory and constitutional interpretation. Because dictionaries catalog language, their use as a specialized corpus provides invaluable insight into the ways a particular word is used in relation to terms throughout the English language. Such evidence provides a crucial interpretive launchpad, even for corpus-based researchers looking for a collection of possible word meanings to analyze in a database of ordinary-language documents.

— Joe

CRS resources on steel and aluminum tariffs

Administration Materials:

CRS Products:

— Joe