From the abstract for If the Text is Clear–Lexical Ordering in Statutory Interpretation, 94 Notre Dame Law Review ___ (2018) by Adam M. Samaha:
Most courts now endorse lexical ordering for statutory cases. That is, a limited set of top-tier sources, if adequately clear, are supposed to establish statutory meaning. Lower-tier sources are held in reserve for close calls. Examples include legislative history and deference to agency positions, which often are demoted into tiebreaking roles. In fact, some such hierarchy of sources is approved by working majorities at the U.S. Supreme Court and more than forty state supreme courts. Although popular today, lexically ordered interpretation has risen and fallen before. Indeed we should pause to reconsider whether these instructions are justified and whether judges can follow them.
This Article explores the core trade-offs and implementation challenges. On trade-offs, the Article spotlights decision quality, decision costs, and, less intuitively, decisiveness. Compared to aggregating all source inferences, lexical ordering threatens decision quality by sometimes throwing out useful information, but it can reduce decision costs and probably will increase the chance of a decisive judgment. Compared to flatly excluding lower-tier sources, lexical ordering probably yields higher quality decisions and decisiveness, but also higher decision costs. Whether the overall compromise seems tolerable depends on a series of debatable judgment calls. Moreover, the actual trade-offs depend on whether judges lexically order sources in their decision making, not only in their opinion writing. To date, we lack evidence either way.
The Article goes on to report results from a new vignette experiment conducted with approximately one-hundred appellate judges. These judges showed curiously mixed success at lexical ordering. In a trade name case, we find little evidence that judges were improperly influenced by legislative history. In an election law case, by contrast, we find evidence that judges were improperly influenced by an agency’s position. There is much more to learn about the patterns of judicial behavior in this field. For now, we should expect mixed judicial success at achieving the mixed advantages and disadvantages of lexical ordering. The hard trade-offs cannot be casually assumed or ignored. With that unsettling lesson, more courts might abandon lexical ordering’s complex and sometimes fragile architecture—or at least maintain respect for judges who are committed to less orthodox, more extreme, and simpler methods for deciding statutory cases.
In its sixth presidential ranking since 1982, 157 scholars surveyed by the Siena College Research Institute ranked Trump the third worst president of all time after Andrew Johnson (who was impeached) and James Buchanan (whose presidency was followed by the Civil War).
Respondents ranked each of 44 presidents on a scale of 1 (poor) to 5 (excellent) on each of twenty presidential attributes, abilities and accomplishments. Overall rankings were computed by assigning equal weight to each of those twenty categories. Trump ranked last for integrity, intelligence and overall ability. Details here.
Developed by thought leaders from Lex Mundi member firms across the United States, the Lex Mundi Blockchain Whitepaper Series is designed to provide in-house counsel and key stakeholders with a high-level introduction to the practical application of blockchain technology in specific practice areas and industries. The 10 in-depth article series addresses blockchain topics spanning practice areas and industries:
- Accepting Payment in Bitcoin: Considerations for Merchants
- Bitcoin, ICOs and the IRS — U.S. Tax Issues
- Blockchain and Insurance
- Blockchain and Real Property Recording
- Blockchain and Data Privacy
- Estate Planning for Cryptocurrency Doesn’t Need to be Cryptic
- Financial Institutions and the Drive to Leverage Cryptocurrency
- Minimizing Litigation Risk for Crypto and Blockchain Companies
- Unleashing the U.S. Life Sciences Industry with Blockchain Technology
- Supply Chain DLT and Token Legal Considerations
Security breach laws typically have provisions regarding who must comply with the law (e.g., businesses, data/ information brokers, government entities, etc); definitions of “personal information” (e.g., name combined with SSN, drivers license or state ID, account numbers, etc.); what constitutes a breach (e.g., unauthorized acquisition of data); requirements for notice (e.g., timing or method of notice, who must be notified); and exemptions (e.g., for encrypted information). All 50 states, the District of Columbia, Guam, Puerto Rico and the Virgin Islands, according to the National Conference of State Legislatures survey, have enacted legislation requiring private or governmental entities to notify individuals of security breaches of information involving personally identifiable information.
NPR is reporting that Senate Majority Leader Mitch McConnell announced Tuesday that he wants the Senate to vote on the pending Green New Deal resolution introduced in the House by Rep. Alexandria Ocasio-Cortez and in the Senate by Sen. Edward Markey on Feb. 7, 2019. See Recognizing the duty of the Federal Government to create a Green New Deal, H.Res. 109 and S.Res. 59.
The companion resolutions call for the creation of a Green New Deal with the goals of
- achieving net-zero greenhouse gas emissions;
- establishing millions of high-wage jobs and ensuring economic security for all;
- investing in infrastructure and industry;
- securing clean air and water, climate and community resiliency, healthy food, access to nature, and a sustainable environment for all; and
- promoting justice and equality.
The resolution calls for accomplishment of these goals through a 10-year national mobilization effort. The resolution also enumerates the goals and projects of the mobilization effort, including
- building smart power grids (i.e., power grids that enable customers to reduce their power use during peak demand periods);
- upgrading all existing buildings and constructing new buildings to achieve maximum energy and water efficiency;
- removing pollution and greenhouse gas emissions from the transportation and agricultural sectors;
- cleaning up existing hazardous waste and abandoned sites;
- ensuring businesspersons are free from unfair competition; and
- providing higher education, high-quality health care, and affordable, safe, and adequate housing to all.
The Senate vote is not yet scheduled.
‘Bullets of Truth’: Julian Assange and the Politics of Transparency (Feb. 8, 2019) by Mark Fenster “updates (to early 2019) earlier work on the WikiLeaks story in order to consider what more recent developments reveal about the theoretical promise that Assange articulated at the time of the website’s emergence. Assange has characterized secrecy as both a form and symptom of corruption, and ultimately as the foundation of a “conspiracy” of governance that states like the U.S. inflict on their subjects and the world. He advocates a non-political, vigilante form of transparency in which WikiLeaks serves as a neutral entity that will save the public and free the world with information. He predicted that corrupt political orders would fall as the threat of exposure forces the collapse of their conspiratorial communication networks. But WikiLeaks has failed not only to save the world but to save itself from politics — and in the process has itself become a bit player in the larger geo-political drama that it had hoped to disrupt. Assange’s theory of information disclosure, as well as his assumptions about the state and governing institutions, have proven far too descriptively and normatively simple. More prominent, less radical theories of transparency should take note of these failures to the extent that they share many of his assumptions.”
Resolving Ambiguity: The Continued Relevance of Legislative History in an Era of Textualism (Feb. 11, 2019) by John Cannan “argues that Judge Brett Kavanaugh’s decision in Allina Health Servs. v. Price, 863 F.3d 937 (D.C. Cir. 2017), currently before the U.S. Supreme Court, was the correct one, but only by chance. Kavanagh based his ruling on subjective textualism. Congress’ true intent for the provision at issue, 42 U.S.C. 1395hh(a)(2), can be found in legislative history that has gone largely overlooked. This paper examines this history and shows how legislative history, in general, should, at the very least, continue to be persuasive evidence of statutory meaning.”
Excerpted from the press release:
The Association of Research Libraries has published the ARL Annual Salary Survey 2017–2018 (paywalled), which analyzes salary data for professional staff working in the 123 ARL member libraries during FY 2017–2018. The 2017–2018 data show that Canadian ARL librarians’ salaries kept pace with inflation, but US ARL librarians’ salaries did not. The median salary for professionals in US ARL university libraries in 2017–2018 was $73,357, an increase of 1.1% over the 2016–2017 median salary of $72,560. The US CPI rose 1.7% during the same period. The Canadian CPI rose 1.2%, and median salaries in Canadian university libraries increased from $97,380 (Canadian dollars) to $99,912 (Canadian dollars), a rise of 2.6%.
Yesterday, President Trump issued an executive order directing U.S. agencies to prioritize keeping the U.S. ahead in the development and deployment of artificial intelligence because “[c]ontinued American leadership in AI is of paramount importance to maintaining the economic and national security of the United States and to shaping the global evolution of AI in a manner consistent with our Nation’s values, policies, and priorities.” Trump did not, however, allocate specific sums of money, but told aides to tally up what it will cost to maintain the lead, and to budget for it. Read the executive order here.
Kevin O’Keefe offers 17 very sound tips for law student blogs ranging from writing style, length of posts, to technical considerations like domain registration and blogging platform. Useful and not just for law students.
The New York Times reported on Monday that Cliff Sims, author of “Team of Vipers,” is “suing the president in his official capacity, alleging that he used his campaign organization as a ‘cutout’ to improperly seek retribution against former employees and keep them from invoking their First Amendment rights.” Sims’ lawsuit comes after the Trump campaign filed an arbitration claim against the White House aide turned author. The campaign is claiming that Sims violated a non-disclosure agreement, but Sims is reportedly not entirely sure he signed an NDA at all. Read the complaint here.
Prior to 2010, most states ended foster care services for youth at age 18. However, the Federal Fostering Connections to Success and Increasing Adoptions Act of 2008 allowed states to use federal funding to extend care up until age 21. More than 45 states extend foster care to serve youth who are over age 18. Here’s the Juvenile Law Center’s 50-state survey of extended foster care.
Politico is reporting that “powerful companies such as LexisNexis have begun hoovering up the data from insurance claims, digital health records, housing records, and even information about a patient’s friends, family and roommates, without telling the patient they are accessing the information, and creating risk scores for health care providers and insurers.” The risk score is the product of confidential algorithms. While the data collection is aimed at helping doctors and insurers make more informed decisions on prescribing opioids, it could also lead to blacklisting of some patients and keep them from getting the drugs they need, according to patient advocates. Details here.
Back in 2017, Venture Beat reported that LexisNexis was testing chatbots for legal search. Bob Ambrogi now reports that implementation of a chatbot for Lexis Advance is coming sooner rather than later although no launch date has been announced.
The chatbot’s goal, LexisNexis said, is to give users the option to take more of a conversational approach to search, rather than the “typing keywords into a search bar” approach. A Lexis Advance chatbot could have two key uses. The bot can guide researchers unfamiliar with a topic to sources people typically look at for that topic. The second use is when revisiting prior research. The bot can present it back to searchers, pointing out that, three months ago, they did similar research, and offering to show it to them again. Also, it is claimed that the bot will get better over time at predicting a user’s intent as the user interacts with the system.
Wait ‘n see.
Martin Minot has posted his note The Irrelevance of Blackstone: Rethinking the Eighteenth-Century Importance of the Commentaries, 104 Virginia Law Review 1359 (2018). Here is the abstract:
This Note challenges William Blackstone’s modern position as the “oracle of the law” in the eighteenth century. In a time when the status of legal doctrines at the Founding is of renewed significance in interpreting the Constitution, it is especially important to ensure that the sources of these doctrines comport with historical practices. This Note looks beyond the usual story of Blackstone’s influence, as told by the significant circulation of his work. It turns instead to the work’s practical significance for legal education in the decades preceding the Constitutional Convention. By using curricula and student notes-referred to as commonplace books-to discover what was actually considered influential in the legal profession of the period, a more comprehensive perspective of eighteenth-century legal thought is uncovered While Blackstone was apparently known to these late colonists, his work was far from “the most widely read law book in eighteenth-century America. ” Instead, more traditional treatises and English reporters dominated legal learning until at least 1787. It is these admittedly more impenetrable works which should inform our understanding of the common law as it existed at the Founding.
H/T Legal History Blog.
At ALA’s Midwinter Meeting in Seattle, ALA Council adopted revisions to “Copyright: An Interpretation of the Code of Ethics”. The changes, proposed by the Committee on Professional Ethics, strengthened “Copyright: An Interpretation of the Code of Ethics” by adding legal citations; expanding the text to include definitions of important principles for “Fair Use” and “First Sale Doctrine”; and addressing digital licensing agreements. The interpretation has also been broadened to encompass all types of libraries and material formats.
ALA’s Library Bill of Rights has been updated to include an article focused on the concept of ensuring privacy and confidentiality for library users.The new article of the Library Bill of Rights, Article VII, states: “All people, regardless of origin, age, background, or views, possess a right to privacy and confidentiality in their library use. Libraries should advocate for, educate about, and protect people’s privacy, safeguarding all library use data, including personally identifiable information.”
The Legal History and Rare Books (LH&RB) Section of the American Association of Law Libraries (AALL), in cooperation with Cengage Learning, announces the Eleventh Annual Morris L. Cohen Student Essay Competition. The competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School.
The competition is designed to encourage scholarship and to acquaint students with the AALL and law librarianship, and is open to students currently enrolled in accredited graduate programs in library science, law, history, and related fields. Essays may be on any topic related to legal history, rare law books, or legal archives. The winner will receive a $500.00 prize from Cengage Learning and present his or her paper in a national webinar.
Winning and runner-up entries will be invited to submit their entries to Unbound, the official journal of LH&RB. Past winning essays have gone on to be accepted by journals such as N.Y.U. Law Review, American Journal of Legal History, University of South Florida Law Review, William & Mary Journal of Women and the Law, Yale Journal of Law & the Humanities, and French Historical Review.
The entry form and instructions are available at the LH&RB website. Entries must be submitted by 11:59 p.m., April 15, 2019 (EDT)
Here’s the blurb for Merchants of Truth: The Business of News and the Fight for Facts (Simon & Schuster, Feb. 5, 2019) by Jill Abramson:
Merchants of Truth is the groundbreaking and gripping story of the precarious state of the news business told by one of our most eminent journalists.
Jill Abramson follows four companies: The New York Times, The Washington Post, BuzzFeed, and VICE Media over a decade of disruption and radical adjustment. The new digital reality nearly kills two venerable newspapers with an aging readership while creating two media behemoths with a ballooning and fickle audience of millennials. We get to know the defenders of the legacy presses as well as the outsized characters who are creating the new speed-driven media competitors. The players include Jeff Bezos and Marty Baron (The Washington Post), Arthur Sulzberger and Dean Baquet (The New York Times), Jonah Peretti (BuzzFeed), and Shane Smith (VICE) as well as their reporters and anxious readers.
Merchants of Truth raises crucial questions that concern the well-being of our society. We are facing a crisis in trust that threatens the free press. Abramson’s book points us to the future.
Freedom House compiles an annual report on the state of democracy and human rights around the world. This report, known as Freedom in the World, is widely cited by policymakers and academics who study democracy. This year, the report is heavily focused on Trump. Here’s the report: Democracy in Retreat: Freedom in the World 2019.