Author Archives: Joe Hodnicki

CRS guides for researching federal legislation

Two regularly updated research guides produced by the Congressional Research Service were updated in the last year.

Researching Current Federal Legislation and Regulations: A Guide to Resources for Congressional Staff (Feb. 6, 2017, RL33895) introduces congressional staff to selected governmental and nongovernmental sources that are useful in tracking and obtaining information on federal legislation and regulations. It includes governmental sources, such as Congress.gov, the Government Publishing Office’s Federal Digital System (FDsys), and U.S. Senate and House websites. Nongovernmental or commercial sources include resources such as HeinOnline and the Congressional Quarterly (CQ) websites.

Legislative History Research: A Guide to Resources for Congressional Staff (July 6, 2016, R41865) provides an overview of federal legislative history research, the legislative process, and where to find congressional documents. The report also summarizes some of the reasons researchers are interested in legislative history, briefly describes the actions a piece of legislation might undergo during the legislative process, and provides a list of easily accessible print and electronic resources.

See also, The Framing of the United States Constitution: A Beginner’s Guide on In Custodia Legis.

Useful. — Joe

Origins of Memorial Day observance in the United States

In 1868, Commander in Chief John A. Logan of the grand Army of the Republic issued what was called General Order Number 11, designating May 30 as a memorial day. He declared it to be “for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet churchyard in the land.” Hence the original name for Memorial Day was Decoration Day.

Here’s the complete text of the order:

HEADQUARTERS GRAND ARMY OF THE REPUBLIC
General Orders No. 11, WASHINGTON, D.C., May 5, 1868

1. The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.

We are organized, comrades, as our regulations tell us, for the purpose among other things, “of preserving and strengthening those kind and fraternal feelings which have bound together the soldiers, sailors, and marines who united to suppress the late rebellion.” What can aid more to assure this result than cherishing tenderly the memory of our heroic dead, who made their breasts a barricade between our country and its foes? Their soldier lives were the reveille of freedom to a race in chains, and their deaths the tattoo of rebellious tyranny in arms. We should guard their graves with sacred vigilance. All that the consecrated wealth and taste of the nation can add to their adornment and security is but a fitting tribute to the memory of her slain defenders. Let no wanton foot tread rudely on such hallowed grounds. Let pleasant paths invite the coming and going of reverent visitors and fond mourners. Let no vandalism of avarice or neglect, no ravages of time testify to the present or to the coming generations that we have forgotten as a people the cost of a free and undivided republic.

If other eyes grow dull, other hands slack, and other hearts cold in the solemn trust, ours shall keep it well as long as the light and warmth of life remain to us.

Let us, then, at the time appointed gather around their sacred remains and garland the passionless mounds above them with the choicest flowers of spring-time; let us raise above them the dear old flag they saved from hishonor; let us in this solemn presence renew our pledges to aid and assist those whom they have left among us a sacred charge upon a nation’s gratitude, the soldier’s and sailor’s widow and orphan.

2. It is the purpose of the Commander-in-Chief to inaugurate this observance with the hope that it will be kept up from year to year, while a survivor of the war remains to honor the memory of his departed comrades. He earnestly desires the public press to lend its friendly aid in bringing to the notice of comrades in all parts of the country in time for simultaneous compliance therewith.

3. Department commanders will use efforts to make this order effective.

By order of

JOHN A. LOGAN,
Commander-in-Chief

Source. — Joe

Fourth Circuit upholds injunction against President Trump’s travel ban

Here’s the text of the opinion. For an analysis, see this Constitutional Law Prof Blog post. — Joe

It’s about time: LexisNexis publishes first multimedia secondary work

Since the foreshadowed demise of Lexis and Westlaw classic versions back in 2010 and 2011, I’ve been expecting to see the use of multimedia by our very expensive digital legal publishers in their newer search service platforms because it could be a transformative value-add-on for the traditional text-only electronic delivery of legal information. LexisNexis’ The Wagstaffe Group Practice Guide: Federal Civil Procedure Before Trial embeds 150+ short videos within the content of the work when you subscribe to the publication on Lexis Advance. LexisNexis press release. It appears, however, that the videos may not be embedded in a standalone eBook edition of this work. The work’s blurb notes “The eBook versions of this title feature links to Lexis Advance for further legal research options. Video content and links are exclusively available with a subscription to this title on Lexis Advance.” That’s disappointing but not unexpected; both Thomson Reuters and LexisNexis require a subscription to their search service to access resources linked to in their eBooks.

H/T to Bob Ambrogi’s LawSite post. See also Jean O’Grady’s Treatises are not dead they are just being transformed. Lexis Launches First Video Treatise. Can the Gamified Treatise Be Far Behind? — Joe

New CBO analysis of American Health Care Act, H.R. 1628, as passed by the House

The Congressional Budget Office released its analysis of the health-care bill that passed the House of Representatives earlier this month. Here’s the text. For an analysis, see NPR’s GOP Health Plan Would Leave 23 Million More Uninsured, Budget Office Says. — Joe

UELMA update

The Uniform Electronic Legal Material Act (UELMA) has been enacted in 16 states and the District of Columbia. AALL has updated its handy UELMA Enactment Chart, which includes information about the covered materials, cost, and effective date of the act in each state. — Joe

Who is Marc Kasowitz?

Numerous sources, including Reuters and the Washington Post, are reporting that President Trump has retained trusted longtime counsel Marc Kasowitz to help with the Russia probe despite Kasowitz having no substantial criminal law experience. So who is he?

According to his profile on the Kasowitz Benson Torres LLP website, Kasowitz has been “[d]escribed by CNBC as the ‘toughest lawyer on Wall Street’ and by Bloomberg Financial News as an ‘uberlitigator.'” From the profile:

Marc regularly serves as national trial counsel in complex litigation in the areas of bank finance, fraudulent conveyance, RICO, corporate governance, antitrust, securities, mass tort, product liability, environmental, breach of contract, and other commercial cases.  Marc also has an extensive and successful track record in dealing with investigations and lawsuits by state attorneys general, including path-breaking settlements of tobacco litigation.  Marc has also conducted numerous internal investigations on behalf of boards of directors, management and special committees regarding alleged corporate misfeasance, conflicts of interest, challenges to board authority, insider trading, accounting fraud, market timing, obstruction of justice, market manipulation, and other issues relating to director and officer fiduciary responsibilities and liabilities.

In Marc E. Kasowitz: 5 Fast Facts You Need to Know, we learn

  1. He Has Represented Donald Trump For Over 15 Years
  2. He Wrote a Letter Demanding The New York Times Retract Its Story About Donald Trump’s Alleged Groping Incidents
  3. Another One of His Clients Is the Largest Bank in Russia
  4. His Former Partner Is Now the U.S. Ambassador to Israel
  5. He Has Compared the O’Reilly Scandal to McCarthyism

Regarding the O’Reilly scandal, the article notes that Kasowitz represented Bill O’Reilly during the Fox News host’s legal trouble surrounding alleged sexual harassment in the workplace. See also, ATL’s What’s Going On At Kasowitz Benson? — Joe

Charlotte School of Law students receive federal loan money in the nick of time

Karen Sloan is reporting that the Department of Education has released federal loan money for beleaguered Charlotte School of Law students. Back in December, the Department of Education had revoked the school’s eligibility for the federal student loan program. That left students scrambling for ways to pay for the spring semester without loan money. All that changed apparently after the school hired lobbyists including one who worked with Education Secretary Betsy DeVos during her confirmation hearings. For more, see Karen Sloan, With New Lobbyists, Charlotte Law Disperses Federal Student Loans as School Year Ends, Law.com, May 22, 2017. — Joe

New edition of law librarian’s bible now available


The 2017 edition of Legal Information Buyer’s Guide & Reference Manual is now available. Enhancements include:

  • More than 80 new treatises, reference titles, and other product reviews (Chapter 27)
  • Enhanced bibliographies of legal treatises in 66 subject areas, including 77 titles on Legal Research and Writing, with new, used, electronic, and West Monthly Assured Print Pricing on more than 2,600 titles in all (Chapter 27)
  • Enhanced bibliography of legal reference titles (Chapter 22)
  • Updated bibliographies of state legal resources and research guides (Chapter 28)
  • Completely updated bibliographic data for all covered titles
  • Completely updated cost and supplementation figures through 2017, with supplementation figures through 2016 (and 2017 for Matthew Bender).
  • Completely updated cost spreadsheet for supplemented titles (Appendix H)
  • Completely updated charts and tables reflecting 2016 annual reports and pricing data
  • Completely updated sample Westlaw and Lexis costs (Chapter 25)
  • Completely updated sample CALR costs for all vendors (Chapter 25)
  • Completely updated spreadsheet of caselaw coverage for all CALR vendors
  • Completely updated spreadsheet of published state statutory codes
  • Recent industry developments and acquisitions, including profit margins (Chapter 2)
  • Updated information on Fastcase and Law360
  • Cumulative supplementation cost data going back 24 years — all at your fingertips — to guide your acquisitions and de-acquisitions decisions
  • Special alerts of egregious price and supplementation cost increases in recent years

Highly recommended. — Joe

A very short introduction to citation performance indicators

The purpose of Citation Performance Indicators — A Very Short Introduction by Phil Davis, Scholarly Kitchen (May 15, 2017) “is to provide a brief summary of the main citation indicators used today. It is not intended to be comprehensive, nor is it intended to opine on which indicator is best. It is geared for casual users of performance metrics and not bibliometricians.”

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

Trump administration’s first budget released

Following up on President Trump’s budget blueprint, the Trump administration released an ideological wish list, its first budget on May 23rd. See A New Foundation for American Greatness – President’s Budget FY 2018 and Major Savings and Reform. It now heads to the House where opposition from Trump’s own party is expected. Politico reports that House Speaker Paul Ryan is standing by his alternative tax reform plan which includes a controversal “border adjustment tax” that would put a 20 percent tax on imports coming into the U.S. See The battle over the border tax. Talking points to sell the Ryan tax reform plan were released recently.

Referencing Trump’s budget blueprint, CNN identified many of Trump’s proposed budget cuts as did the New York Times here. See also, The Key Spending Cuts and Increases in Trump’s Budget, NYT, May 22, 2017. — Joe

End Note: Browse all the FY2018 budget documents here.

Search and politics

Search and Politics: The Uses and Impacts of Search in Britain, France, Germany, Italy, Poland, Spain, and the United States reports the results of an online poll of Internet users about how they use search, social media, and other important media to get information about political candidates, issues, and politics generally. From the abstract:

Global debate over the impact of algorithms and search on shaping political opinions has increased following dramatic election results in Europe and the US. Powerful images of the Internet enabling access to a global treasure trove of information have shifted to worries over whether those who use search engines and social media are being fed inaccurate, false, or politically targeted information that distorts public opinion. There are serious questions over whether biases embedded in the algorithms that drive search engines and social media have major political consequences, such as creating filter bubbles or echo chambers. For example, do search engines and social media provide people with information that aligns with their beliefs and opinions or do they challenge them to consider countervailing perspectives? Most generally, the predominant concern is do these media have a major impact on public opinion and political viewpoints, and if so, for the better or worse.

— Joe

Legal issues surrounding fake news: An analysis

“Fake news” has garnered substantial attention recently but the authors of Fake News: A Legal Perspective, Journal of Internet Law (Apr. 2017) note that no legal discussion of issues surrounding the publication of fake news have appeared in the legal literature. “This [brief] article evaluates examples of fake news publications to present a workable definition of “fake news” for purposes of our legal analysis. We then explore many of the legal and regulatory hurdles facing online fake news publishers. This article concludes by discussing some of the legal protections available to fake news publications and publishers of other online content.” — Joe

Are you ready for the Third Wave of AI for Law?

An Artificial Lawyer post, The Third Wave of Legal AI by Kripa Rajshekhar, the founder of legal AI company Metonymy Labs, has three goals (1) Introduce the Third Wave of AI, (2) Outline, in broad strokes, what this means for AI and Law, (3) Illustrate the path forward with a specific application of the approach: Metonymy Labs’ work to augment diligence with AI. Interesting. — Joe

Suggested articles of impeachment for President Trump

The time has come for Congress to act and for leaders on both sides of the aisle to put country before party and politics. Speaker Paul Ryan and Majority Leader Mitch McConnell ought to, in cooperation with Democratic leaders, begin the sequence of events that would likely lead to impeachment and removal proceedings for Trump. Given that this is unlikely, Democrats should make clear of their intentions to do what is necessary under our Constitution should they win back control of the House of Representatives in 2018. This process should be as full, fair, and transparent as our Constitution requires. Anything less would demean and harm the country even more than Trump has already done. — Phillip Carter, A first draft of an impeachment bill for the president, Salon, May 16, 2017

Echoing similar sentiments, Keith E. Whittington warns “If the impeachment power is perceived to be little more than a partisan tool for undermining elected officials and overturning election results, then the value of elections for resolving our political disagreements is significantly reduced. We do not want to be in a situation in which neither side trusts the other to continue adhering to the most basic democratic norms of abiding by election results.” Keith E. Whittington, An Impeachment Should Not Be a Partisan Affair, Lawfare, May 16, 2017.

Short of the Democrats winning a majority of seats in the House in the 2018 congressional elections, it is hard to imagine the Republican controlled House of Representatives bringing articles of impeachment against President Trump because impeachment has been a partisan political action for quite a while now. See Richard K. Neumann, Jr., The Revival of Impeachment as a Partisan Political Weapon, 34 Hastings Constitutional Law Quarterly 161 (2007). But if viewed as a thought experiment, Phillip Carter has offered a “first draft” of an impeachment bill. The drafted articles of impeachment he identifies are listed below:

Article 1: Compromising the integrity of the presidency through continuing violation of the Constitution’s Emoluments Clause.

Article 2: Violation of his constitutional oath to faithfully execute the duties of his office by disregarding U.S. interests and pursuing the interests of a hostile foreign power, to wit, Russia.

Article 3: Impairment and obstruction of inquiries by the Justice Department and Congress into the extent of the Trump administration’s conflicts of interests and Russia ties.

Article 4: Undermining of the American judicial system through felonious intimidation of potential witnesses.

Article 5: Undermining of his office and the Constitution through repeated assaults on the integrity of the federal judiciary and its officers.

Article 6: Demeaning the integrity of government and its public servants, particularly the military and intelligence agencies, in contravention of his constitutional duties to serve as chief executive and commander in chief of the armed forces.

Looks comprehensive to me. See Phillip Carter, A first draft of an impeachment bill for the president, Salon, May 16, 2017 for his explanations for each draft article of impeachment . See also, The Republican’s Guide to Presidential Behavior, New York Times editorial, May 13, 2017 (“What do Paul Ryan, Mitch McConnell and other Republican leaders think a president may say or do and still deserve their enthusiastic support? We offer this handy reference list in hopes of protecting them from charges of hypocrisy in the future. They can consult it should they ever feel tempted to insist on different standards for another president.”)  — Joe

FCC starts regulatory process to roll back net neutrality rule

The FCC voted 2-1 along party lines to advance FCC chairman Pai’s Restoring Internet Freedom proposal, which would repeal current net neutrality protections Thursday. Politico reports “The FCC’s action Thursday doesn’t repeal the rules yet but instead launches a lengthy proceeding that will pit ISPs and conservative groups, which back Pai’s efforts, against left-leaning digital activists and leading tech companies that say the net neutrality rules are crucial to creating a level playing field online. Already, the debate has begun to echo the bitter fight over the issue two years ago, and the number of public comments filed in the proceeding has skyrocketed to 1.6 million at last count.”

From the FCC press release:

The Federal Communications Commission today took the first step toward restoring Internet freedom and promoting infrastructure investment, innovation, and choice by proposing to end utility-style regulation of broadband Internet access service.

In a Notice of Proposed Rulemaking, the FCC proposes to return to the bipartisan framework that preserved a flourishing free and open Internet for almost 20 years.  First, the Notice proposes to reverse the FCC’s 2015 decision to impose heavy-handed Title II utility-style government regulation on Internet service providers (ISPs) and return to the longstanding, successful light-touch framework under Title I of the Communications Act.

Second, the Notice proposes to return to the Commission’s original classification of mobile broadband Internet access service as a private mobile service.  Given the historical innovation and success of the wireless marketplace prior to the Title II Order, this proposal is expected to substantially benefit consumers and the marketplace.

Third, the Notice proposes to eliminate the catch-all Internet conduct standard created by the Title II Order.  Because the Internet conduct standard is extremely vague and expansive, ISPs must guess at what they are permitted to do.  Eliminating the Internet conduct standard is therefore expected to promote innovation and network investment by eliminating regulatory uncertainty.

“The FCC is proposing a rule that would reclassify broadband as an ‘information service’ rather than a ‘telecommunications service.’ FCC Chairman Ajit Pai claims that this move would protect users, but all it would really do is protect Comcast and other big ISPs by destroying the legal foundation for net neutrality rules. Once that happened, it would only be a matter of time before your ISP had more power than ever to shape the Internet” wrote Corynne McSherry in yesterday’s EFF commentary, Dear FCC: We See Through Your Plan to Roll Back Real Net Neutrality.

For background see Net neutrality: If the Internet is not a utility, what is it? on LLB. — Joe

LawARXIV, a free, open access, open source archives for legal research, is now live

Launched on May 8, 2017 LawArXiv is an open access repository for legal scholarship. The repository was developed by LIPA, MALLCO, NELLCO and Cornell Law Library. “Our partnership in the LawArxiv project is a reflection of Cornell Law School’s deep and enduring commitment to open access principles, and the availability of legal information to all,” said Femi Cadmus, Edward Cornell Law Librarian, in this press release. — Joe

Cornell’s LII on its 25th anniversary: Bob Ambrogi interviews Tom Bruce

Congratulations to LII! Bob Ambrogi spoke with cofounder Tom Bruce about LII’s origins and where LII stands today here. — Joe

Meet Robert Mueller

Robert Mueller was named special counsel by the DOJ to probe Trump-Russia ties yesterday. See Text of DOJ Order No. 3915-2017 (May 17, 2017). That event lead to the publication of several profile pieces in the press. If interested, see Tal Kopan, Who is Robert Mueller? CNN, May 17, 2017; Maura Dolan, Meet Robert Mueller, the former San Francisco lawyer chosen to lead the Trump-Russia investigation, Los Angeles Times, May 17, 2017; and Tierney Sneed, Who Is Robert Mueller? Ex-FBI Director Takes Over Russia-Trump Probe, Talking Points Memo, May 17, 2017. — Joe

Text of DOJ Order No. 3915-2017: Appointment of special counsel to investigate Russian interference with the 2016 presidential election and related matters

From the source document:

ORDER NO. 3915-2017

APPOINTMENT OF SPECIAL COUNSEL
TO INVESTIGATE RUSSIAN INTERFERENCE WITH THE
2016 PRESIDENTIAL ELECTION AND RELATED MATTERS

By virtue of the authority vested in me as Acting Attorney General, including 28 U.S.C.§§ 509, 510, and 515, in order to discharge my responsibility to provide supervision and management of the Department of Justice, and to ensure a full and thorough investigation of the Russian governments efforts to interfere in the 2016 presidential election, I hereby order as follows:

(a) Robert S. Mueller III is appointed to serve as Special Counsel for the United States Department of Justice.

(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation; and

(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

(d) Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.

May 17, 2017 ….. Rob. J. Rosenstein, Acting Attorney General