Reynen Court has convinced a dozen BigLaw firms to form a consortium focused on standardizing their needs for legal software including artificial intelligence and smart contracts. Once they’ve identified the needs, Reynen Court plans to develop the software these firms would benefit from. Their services automation platform will enable law firms to deploy a wide range of computing applications without exposing firm or client content to disparate third-party cloud environments. The start-up also hopes to accelerate inter-operability between and among legal technology applications.
From the abstract to Presidential Norms and Article II, 131 Harv. L. Rev. 218 (2018), by Daphna Renan:
The nature of the presidency cannot be understood without reference to norms. The written provisions of our constitutional structure do not, by themselves, offer a sufficiently thick network of understandings to create a workable government. Rather, those understandings are supplied by norm-governed practices. Presidential power is both augmented and constrained by these unwritten rules. This Article offers a sustained account of the norm-based presidency. It maps out the types of norms that structure the presidency and excavates the constitutional functions that these norms serve, the substantive commitments that they supply, the decisional arenas where they apply, and the conditions that make some norms (relative to others) more or less fragile. Understanding these characteristics of an unwritten Article II helps to mark abnormal presidential behavior when it arises. It also brings into view core features of structural constitutionalism itself. Norms simultaneously settle constitutional duty for a time and orient contestation over what legitimate practice should be. Norms, however, cannot be understood in contrast to a fixed constitutional structure. Rather, norms bring into view the provisional nature of our constitutional order itself.
Through a Lawyer’s Eyes: Data Visualization and Legal Epistemology (Mar. 8, 2018) by Vincenzo Zeno-Zencovich “aims at investigating the relationship between the law and its visual depiction, in the light of the growing use of vast amounts of data to represent social phenomena. Visual analytics and infographics are part of contemporary forms of representation and knowledge. To what extent can lawyers do – or should do – without them and what profit, instead, might they take from them?”
Beginning in early 2019, the 60,000 members of the California Lawyers Association will have access to Fastcase according to this press release. This agreement brings Fastcase’s user population to 900,000 or approximately 70% of all licensed attorneys in the US.
Is Fastcase’s user population larger that Thomson Reuters? Larger than LexisNexis? Bloomberg Law? Wolters Kluwer? Can’t prove it but I think Fastcase is the largest legal search vendor by user population. With duopolies in both the general law market (Thomson Reuters and LexisNexis) and the speciality law market (Bloomberg Law and Wolters Kluwer), Fastcase is poised for a breakthrough.
For some context, see Fastcase Rising on LLB.
Mother Jones reports “Washington’s state Supreme Court has ruled that it’s unconstitutional to sentence teen offenders to life in prison without parole because their brains are less developed than those of adult offenders, arguing that they should be granted a second chance because of their potential for growth.
“The 5-4 decision on Thursday comes one week after the court abolished the death penalty in the state. Washington is now one of at least 21 states, along with the District of Columbia, that ban life-without-parole punishments for crimes committed by people under the age of 18.”
From the abstract for Presidential Attacks on the Press, Missouri Law Review, Forthcoming, by Sonja West:
President Donald Trump’s habit of hurling invectives at the press is disturbing. It undermines the work of the press and breaks long-standing norms that presidents show respect for the role of the Fourth Estate. But insults alone rarely raise First Amendment issues. Presidents have long used the bully pulpit to respond to or criticize news reports. Even Trump’s near daily verbal assaults on reporters and news organizations can be considered part of our country’s “uninhibited, robust, and wide-open” marketplace of ideas. Presidents have opinions too, and journalists should be able to handle his rants.
Yet there are also times when Trump’s lashing out at the press go beyond mere name-calling, and he instead attempts to use the power of his presidency to punish or silence press organizations that displease him. In these instances, Trump is unsheathing an entirely different kind of weapon. When a president crosses the line from insulting the press to turning the wheels of government as a means to retaliate against news organizations for their reporting, the potential First Amendment violations become very real.
The goals of this short Article are modest. It seeks simply to differentiate the various ways Trump has attacked the press, to emphasize that we should not view them all through the same constitutional lens, and to bring attention to the most serious type of offense. Unsurprisingly, it is Trump’s attempts to employ the power of the federal government to retaliate against the press that raise the most troubling constitutional concerns.
From the blurb for The Perfect Weapon: War, Sabotage, and Fear in the Cyber Age (Crown, June 19, 2018) by David E. Sanger:
The Perfect Weapon is the startling inside story of how the rise of cyberweapons transformed geopolitics like nothing since the invention of the atomic bomb. Cheap to acquire, easy to deny, and usable for a variety of malicious purposes—from crippling infrastructure to sowing discord and doubt—cyber is now the weapon of choice for democracies, dictators, and terrorists. Two presidents—Bush and Obama—drew first blood with Operation Olympic Games, which used malicious code to blow up Iran’s nuclear centrifuges, and yet America proved remarkably unprepared when its own weapons were stolen from its arsenal and, during President Trump’s first year, turned back on the US and its allies. The government was often paralyzed, unable to threaten the use of cyberweapons because America was so vulnerable to crippling attacks on its own networks of banks, utilities, and government agencies.
Stephen McAllister got interested in the family trees of Supreme Court Justices after finding three Justice-to-Justice family relations. “I began wondering whether there were other familial relations — either between Justices themselves or between Justices and other prominent people — that might be interesting to explore.” For the results of his research see the Green Bag article, The Supreme Court and Superman: The Justices and the Famous People in Their Family Trees. Superman?! Read more about it.
On June 8, 2018, New York Legal Assistance Group (NYLAG) submitted a request under the Freedom of Information Act to the Board of Immigration Appeals (BIA), requesting that the BIA make all of its unpublished decisions since 1996 publicly available in an electronic format under 5 U.S.C. § 552(a)(2) as the BIA’s decisions, whether published or unpublished, are “final opinions” and “orders” of the agency. EOIR denied NYLAG’s request, and NYLAG submitted an administrative appeal. On October 17, 2018, after EOIR and the BIA failed to respond by the statutory deadline, NYLAG filed suit in the U.S. District Court for the Southern District of New York, represented by attorneys at Public Citizen Litigation Group and NYLAG. NYLAG contends that the BIA’s failure to make its unpublished decisions publicly available in an electronic format violates FOIA or, in the alternative, the Administrative Procedure Act. Here’s the text of the complaint.
The Washington Supreme Court has found the death penalty to be unconstitutional because it violates the state constitution, specifically Article 1, Section 14, which states, “[e]xcessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.” From the opinion in State v. Gregory, No. 88086-7 (Wash. Oct. 11, 2018):
“The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered. As noted by appellant, the use of the death penalty is unequally applied—sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution.”
For an analysis, see this blog post by Reba Kennedy.
5G is coming to a compatiable device near you. On October 1, Verizon launched the first 5G network providing 5G home service in Houston, Indianapolis, Los Angeles and Sacramento. AT&T and other carriers will start to launch 5G networks within a year. But what exactly is 5G? For background, see one or more of the below backgrounders.
From the blurb for Jason Stanley’s How Fascism Works: The Politics of Us and Them (Random House, Sept. 4, 2018): Fascist politics are running rampant in America today—and spreading around the world. A Yale philosopher identifies the ten pillars of fascist politics, and charts their horrifying rise and deep history.
From the abstract for Nancy J. White, Legal Analysis: There’s a Template for that! 2 ALSB Journal of Business Law & Ethics Pedagogy ___ (Forthcoming):
Legal analysis is often one of the more difficult skills to teach undergraduate and first-year law students. This skill, related to what is called “legal frame working” in law school, is needed by law students and lawyers, to analyze legal issues and requires the user of the legal framework to have a detailed understanding of the law. This same level of skill is not taught at the undergraduate level, but a basic understanding increases critical thinking and helps undergraduate students conceptualize how the law is used. This paper describes a simplified method for introducing the skill of legal analysis to undergraduate students and first-year law students using a legal analysis template developed by the author.
From the abstract for Deborah N. Archer, Political Lawyering for the 21st Century, Denver Law Review (Forthcoming):
Legal education purports to prepare the next generation of lawyers capable of tackling the urgent and complex social justice challenges of our time. But law schools are failing in that public promise. Clinical education offers the best opportunity to overcome those failings by teaching the skills lawyers need to tackle systemic and interlocking legal and social problems. But too often even clinical education falls short: it adheres to conventional pedagogical methodologies that are overly narrow and, in the end, limit students’ abilities to manage today’s complex racial and social justice issues. This article contends that clinical education needs to embrace and reimagine political lawyering for the 21st century in order to prepare aspiring lawyers to tackle both new and chronic issues of injustice through a broad array of advocacy strategies.
From the introduction to Global Trends in Democracy: Background, U.S. Policy, and Issues for Congress (R35344, Oct. 17, 2018): “Widespread concerns exist among analysts and policymakers over the current trajectory of democracy around the world. Congress has often played an important role in supporting and institutionalizing U.S. democracy promotion, and current developments may have implications for U.S. policy, which for decades has broadly reflected the view that the spread of democracy around the world is favorable to U.S. interests.”
The Sunlight Foundation’s Tracking Trump’s Conflicts of Interest project provides a free, searchable database detailing President Donald J. Trump’s known business dealings and personal interests that may conflict with his public duties as President of the United States. The project also documents news coverage of these potential conflicts.
From the EFF report: “the Federal Circuit has changed its policies to give the public immediate access to briefs. Previously, the court had marked submitted briefs as “tendered” and withheld them from the public pending review by the Clerk’s Office. That process sometimes took a number of days. EFF wrote a letter asking the court to make briefs available as soon as they are filed. The court has published new procedures that will allow immediate access to submitted briefs.”
From the abstract for President Trump’s War on Regulatory Science, Harvard Environmental Law Review, Forthcoming, by Albert Lin:
The Trump administration has taken numerous actions that appear hostile to scientists, scientific research, and scientific data, leading some observers to assert that a war on science is underway. A more precise characterization is that the Trump administration is engaging in a war on regulatory science, as these actions take aim specifically at regulatory science — i.e., knowledge production and synthesis carried out by the Environmental Protection Agency and other government agencies in the course of developing government regulations. The Administrative Procedure Act and other laws may constrain some aspects of the war on regulatory science, provided that they are subject to judicial review. Internal administrative law and agency norms also can promote rule of law values, but their success depends largely on the good faith of executive branch actors and the willingness of Congress and the public to push back when norms of administrative legality are ignored. Absent such pushback, the Trump administration’s war on regulatory science could lead to irrational policies and threaten democratic governance.
Movement Lawyering, 2017 Univ. of Illinois Law Review 1645 (2017) by Scott L. Cummings “explores an important development in American legal theory and practice over the past decade: the rise of ‘movement lawyering’ as an alternative model of public interest advocacy focused on building the power of nonelite constituencies through integrated legal and political strategies. Its central goal is to explain why movement lawyering has gained prominence, define its essential features, and explore what it reveals about the current state of efforts to work out an empirically grounded and normatively appealing vision of the lawyer’s role in social change. Toward that end, this Article shows how movement lawyering has long been an important part of progressive legal practice — complicating the standard historical account — while also illuminating the contemporary political and professional shifts that have powered the recent social movement turn. Synthesizing insights from social movement theory and practice, the Article then defines and analyzes the core features of the movement lawyering model — representing ‘mobilized clients’ and deploying ‘integrated advocacy’ — and explores how these features respond to long-standing critiques of public interest advocacy by presenting movement lawyers at their most accountable and effective: taking instructions from activist organizations in client-centered fashion and using law in politically sophisticated ways designed to maximize the potential for sustained social reform. In doing so, the new movement lawyering literature usefully refocuses attention on fundamental questions about the lawyer’s role in social change and thereby offers a crucial opportunity to jumpstart a contemporary dialogue — less freighted with the critical canon of the past and more rooted in empirical inquiry — about the conditions in which lawyering is most likely to produce accountable and effective democratic transformation.”
Election Security in All 50 States was compiled by the Center for American Progress.