From the abstract for Tonya L. Brito, The Right to Civil Counsel, Dædalus, Winter 2019:

The U.S. Constitution grants no categorical right to counsel in civil cases. Undaunted, the legal profession’s renewed effort to improve access to justice for low-income unrepresented civil litigants includes a movement to establish this right. How this right is implemented turns out to be as important as whether such a right exists. To be effective, any new right must be national in scope, adequately funded, and protected from political influence. Lawyers must be available early and often in the legal process, so that they can provide assistance for the full scope of their client’s legal problem and prevent further legal troubles. A right to civil counsel should encompass proceedings where basic needs are at stake, and not be influenced by inadequately informed judgments of who is worthy of representation.

From the abstract for Sonia Katyal, Private Accountability in the Age of Artificial Intelligence, 66 UCLA L. REV. 54 (2019):

In this Article, I explore the impending conflict between the protection of civil rights and artificial intelligence (AI). While both areas of law have amassed rich and well-developed areas of scholarly work and doctrinal support, a growing body of scholars are interrogating the intersection between them. This Article argues that the issues surrounding algorithmic accountability demonstrate a deeper, more structural tension within a new generation of disputes regarding law and technology. As I argue, the true promise of AI does not lie in the information we reveal to one another, but rather in the questions it raises about the interaction of technology, property, and civil rights.

For this reason, I argue that we are looking in the wrong place if we look only to the state to address issues of algorithmic accountability. Instead, we must turn to other ways to ensure more transparency and accountability that stem from private industry, rather than public regulation. The issue of algorithmic bias represents a crucial new world of civil rights concerns, one that is distinct in nature from the ones that preceded it. Since we are in a world where the activities of private corporations, rather than the state, are raising concerns about privacy, due process, and discrimination, we must focus on the role of private corporations in addressing the issue. Towards this end, I discuss a variety of tools to help eliminate the opacity of AI, including codes of conduct, impact statements, and whistleblower protection, which I argue carries the potential to encourage greater endogeneity in civil rights enforcement. Ultimately, by examining the relationship between private industry and civil rights, we can perhaps develop a new generation of forms of accountability in the process.

The Constitutional Accountability Center’s issue brief, The Historical and Legal Basis for the Exercise of Congressional Oversight Authority, details the history of legislative investigations, case law approving Congress’s vast power to investigate, and the ways in which Congress can enforce subpoenas to make its investigations effective and to hold the Executive Branch accountable.

Annalee Hickman believes that the best way to start teaching students about the many facets of legal research is by using supplemental readings. In Engaging Legal Research Students Through Supplemental Readings from the Last Decade, 26 Perspectives: Teaching Legal Res. & Writing 67 (2018) she offers an short annotated bibliography of readings intended to engage students in their LRW classes. Useful.

From the blurb for Robert J. Norris, Exonerated: A History of the Innocence Movement (NYU Press, Feb. 5, 2019):

Documentaries like Making a Murderer, the first season of Serial, and the cause célèbre that was the West Memphis Three captured the attention of millions and focused the national discussion on wrongful convictions. This interest is warranted: more than 1,800 people have been set free in recent decades after being convicted of crimes they did not commit.

In response to these exonerations, federal and state governments have passed laws to prevent such injustices; lawyers and police have changed their practices; and advocacy organizations have multiplied across the country. Together, these activities are often referred to as the “innocence movement.” Exonerated provides the first in-depth look at the history of this movement through interviews with key leaders such as Barry Scheck and Rob Warden as well as archival and field research into the major cases that brought awareness to wrongful convictions in the United States.

Robert Norris also examines how and why the innocence movement took hold. He argues that while the innocence movement did not begin as an organized campaign, scientific, legal, and cultural developments led to a widespread understanding that new technology and renewed investigative diligence could both catch the guilty and free the innocent.

From the abstract for Adam S. Chilton, Jonathan S. Masur & Kyle Rozema, Rethinking Law School Tenure Standards (Jan. 31, 2019):

Academic departments decide on tenure standards with limited evidence about their accuracy and efficacy. We study the implications of stricter tenure standards in law schools, an environment in which 95 percent of all tenure track hires receive tenure. To do so, we construct a novel dataset of the articles and citation counts of 1,720 law professors who were granted tenure at top-100 law schools between 1970 and 2007. We first show that pre-tenure research records are highly predictive of future academic impact. We then simulate the costs and benefits of applying stricter tenure standards using predictions of law professors’ future academic impact at the time of their tenure decision. Of faculty members not tenured under stricter standards, only 5 percent have greater future academic impacts than their counterfactual replacements. Moreover, increasing tenure denials by 10 percentage points would increase the academic impact of a school’s median professor by over 50 percent.

A White House source has leaked nearly every day of President Trump’s private schedule for the past three months. Since Nov. 7, the day after the midterm elections, Trump has spent around 297 hours in Executive Time, according to the 51 private schedules obtained by Axios. For those same schedules, Trump has had about 77 hours scheduled for meetings.

From the abstract for Michele Beardslee DeStefano, The Law Firm Chief Innovation Officer: Goals, Roles, and Holes (2018):

So many lawyers are sick of hearing that they must “innovate or die,” yet their clients call for innovation continues to be loud; and, although not clear, it is clearly resounding. Demand for innovation is old news; now, clients are going even further – requesting in pitch proposals (RFPs) that law firms demonstrate how they have innovated or how they will innovate or be innovative. Even those clients who do not use what might be better called ‘the i-word’ ask for it in other forms, including demanding cheaper, better, faster, services or asking for ‘collaboration’ within the firm, or with other competing law firms or legal services companies on projects and panels. Even more compelling evidence for the magnitude of this call? Clients who say they value innovation by their law firms and reward it or, worse yet, punish firms without it. General Counsels (GCs) have been consistent and clear: “If you don’t want to be an innovation partner with [them], then [they] are going to be inclined not to give you business.” In other words, collaboration towards innovation is no longer a higher standard – it is quickly becoming the standard requirement. True, as I have argued in my book Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in Law, many clients have not been clear as to what they mean by innovation, nor have they quite figured out how to measure it. True, many law firms are unsure what they or their clients mean by innovation or what the ROI is on investing in innovation. But these – and other – ambiguities have not stopped law firms from answering their clients’ call by investing (in some way, shape or form) in innovation.

One way law firms are answering this call is by appointing, identifying or hiring someone in the role of what is sometimes called, the chief innovation officer (CINO), or some other title that signifies this person is the head of innovation. The very first time I heard of the role of CINO at a law firm was in April 2015. Inspired, I decided to investigate. Over the past couple years, I have interviewed more than 100 GCs, heads of innovation at law firms, and law firm partners to uncover what is meant by the hackneyed i-word in the law market, to understand lawyers’ views of innovation, and to explore the role of the CINO at law firms. One of the many questions I sought to answer was whether designating someone as the head of innovation at a law firm is an effective way to meet changing marketplace demands and satisfy clients’ expectations. This article explores that question along with others concerning the CINO role. It is divided into two parts. This part, Part 1, begins by overviewing the goals and roles of a law firm CINO as described to me by my interviewees. Part 2, to be published in January 2019, highlights the holes that I believe exist within and between the goals and the roles. It concludes by providing three recommendations to law firms to help mend the holes so that the roles are better leveraged and the goals are better met.

Under the National Emergencies Act the president has complete discretion to issue an emergency declaration—but he must specify in the declaration which powers he intends to use, issue public updates if he decides to invoke additional powers, and report to Congress on the government’s emergency-related expenditures every six months. The state of emergency expires after a year unless the president renews it, and the Senate and the House must meet every six months while the emergency is in effect “to consider a vote” on termination.

At the moment President Donald Trump threatens to bypass Congress and secure funding for a wall along the border with Mexico by declaring a national emergency. With that in mind, here are three national emergency backgrounders:

From the introduction to Lara Freed and Joel Atlas’s A Structural Approach to Case Synthesis, Fact Application, and Persuasive Framing of the Law, 26 Perspectives: Teaching Legal Res. & Writing 50 (2018):

Among the thorniest of [lawyering-skills] are synthesizing cases, applying facts, and persuasively framing the law. Professors struggle to teach these skills, and students consistently struggle to understand and implement them. To lighten the burden for both professors and students, we have approached these skills structurally and, in doing so, have identified the fundamental components of the skills and common pitfalls associated with understanding and implementing them. With this foundation, we have created teaching models and examples that provide professors with a systematic, refined method for helping students acquire these skills.

Transparency International has released its Corruption Perceptions Index 2018. The index, which ranks 180 countries and territories by their perceived levels of public sector corruption according to experts and businesspeople, uses a scale of 0 to 100, where 0 is highly corrupt and 100 is very clean. More than two-thirds of countries score below 50 on this year’s CPI, with an average score of just 43.

Denmark, the country with the lowest measured corruption, scored an 88 and Somalia received the highest ranking with a score of 10. The report gave the US a score of 71 for 2018 and a global ranking of 22, down from a 75 score and 16th ranking in 2017.

From the blurb for Mar-a-Lago: Inside the Gates of Power at Donald Trump’s Presidential Palace (Flatiron Books, Jan. 29, 2019) by Laurence Leamer:

To know Donald J. Trump it is best to start in his natural habitat: Palm Beach, Florida. It is here he learned the techniques that took him all the way to the White House. Painstakingly, over decades, he has created a world in this exclusive tropical enclave and favorite haunt of billionaires where he is not just president but a king. The vehicle for his triumph is Mar-A-Lago, one of the greatest mansions ever built in the United States. The inside story of how he became King of Palm Beach―and how Palm Beach continues to be his spiritual home even as president―is rollicking, troubling, and told with unrivaled access and understanding by Laurence Leamer.

In Mar-A-Lago, the reader will learn:

  • How Donald Trump bought a property now valued by some at as much as $500,000,000 for less than three thousand dollars of his own money.
  • Why Trump was blackballed by the WASP grandees of the island and how he got his revenge.
  • How Trump joined forces with the National Enquirer, which was headquartered nearby, and engineered his own divorce.
  • How by turning Mar-A-Lago into a private club, Trump was the unlikely man to integrate Palm Beach’s restricted country club scene, and what his real motives were.
  • What transpires behind the gates of today’s Mar-A-Lago during “the season,” when President Trump and assorted D.C. power players fly down each weekend.

In addition to copious interviews and reporting from inside Mar-A-Lago, Laurence Leamer brings an acute and unparalleled understanding of the society of Palm Beach, where he has lived for twenty-five years. He has written an essential book for understanding Donald Trump’s inner character.

H/T to Legal History Blog for calling attention to Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History, by Robert W. Gordon published in the Winter 2019 issue of Dædalus. Here’s the abstract:

Ideally, justice is a universal good: the law protects equally the rights of the rich and powerful, the poor and marginal. In reality, the major share of legal services goes to business entities and wealthy people and the prestige and prosperity to the lawyers who serve them. This essay deals with the history of access to justice – chiefly civil justice – and with the role of lawyers and organized legal professions in promoting and restricting that access. In the last century, legal professionals and others have taken small steps to provide access to legal processes and legal advice to people who could not otherwise afford them. By doing so, they have inched closer to the ideals of universal justice. Though the organized bar has repeatedly served its own interests before those of the public, and has restricted access to justice for the poor, it has been a relatively constructive force.

The Fall 2018 issue is out now and available online here. Articles in this issue include:

  • Finding Your Muse by Professor Abigail L. Perdue
  • A Structural Approach to Case Synthesis, Fact Application, and Persuasive Framing of the Law By Professors Lara Freed and Joel Atlas
  • How to Support International ELL Law Students When You Only Have a Few of Them By Professor Sue Liemer
  • Engaging Legal Research Students Through Supplemental Readings from the Last Decade By Professor Annalee Hickman
  • Alliteration, Restraint, and a Mind at Work By Professor Patrick Barry
  • Show and Tell By Patrick Barry
  • Reflections of a Legal Writing Advisor By Professor Paul Von Blum

From the abstract for Hans Morten Haugen, Is Internet Access a Human Right? For Everyone or Just Persons with Disabilities?:

Allegations that Internet access is a human right is a popular perception, reflected in media reports. The most explicit basis is found in the Convention on the Rights of Persons with Disabilities (CRPD). Acknowledging that private actors are essential in providing Internet services, the CRPD Article 21(c) explicitly urges them to provide information and services in accessible and usable formats. It is not common that human rights treaties specify the role of private actors with such explicit wording. A review of relevant international law sources, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), finds that there is no basis in international law for stating that Internet access is a human rights. On the other hand, rights and obligations on Internet access and accessibility is clearly outlined in the CRPD, finding that there is a human right to the Internet – with corresponding State obligation – for persons with disabilities. The article then identifies States’ compliance with its CRPD obligations in the realm of Internet, and finds severe weaknesses in public policies, but the adoption of a treaty on copyright exceptions applying to use by persons with disabilities is a positive recent development.

Lawrence B. Solum’s Originalism versus Living Constitutionalism: The Conceptual Structure of the Great Debate (Jan. 28, 2019) “explores the conceptual structure of the great debate about ‘originalism’ and ‘living constitutionalism.’ The core of the great debate is substantive and addresses the normative question, “What is the best theory of constitutional interpretation and construction?” That question leads to others, including questions about the various forms and variations of originalism and living constitutionalism. Originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances and values. This Essay advances a metalinguistic proposal for classifying theories as originalist or living constitutionalist and suggests that some constitutional theories are hybrids, combining elements of both theories.”

In the history of law library-vendor relations, Thomson Reuters traditionally has been viewed as “the evil vendor” for its long history of nasty B2B relations with law libraries due to the company’s past aggressive duopolistic business practices. No longer in my opinion. One clear impression I got from reading Feit Consulting’s 2019 Legal Information Vendor Market Survey Summary for Survey Respondents is that LexisNexis is the new evil vendor.

It takes a lot to replace Thomson Reuters for this “honor.”  Despite TR trying to gouge law libraries by attempting to charge as much as a 20% premium for Westlaw Edge and pricing Practical Law too high according to survey respondents, dissatisfaction with the functionality of LexisNexis’ search platform, pricing trends, and new tying tactics is so widespread and passionate among survey respondents that LexisNexis is clearly entrenched as our new evil vendor.

I’m not sure how LexisNexis ended up here.  Perhaps because of –

  • the decline in cost recovery practices for search services along with the reduction in the number of firms that provide both Westlaw and Lexis since 2008;
  • the 2011 not ready for prime time release of Lexis Advance;
  • the nearly annual corporate-wide reorganizations, and executive, managerial and account rep staff replacements (voluntary or not);
  • the perception that the company is now offering a search product inferior to Westlaw Edge (While most Feit survey respondents do not license Westlaw Edge yet a majority of Westlaw respondents say they will within the next 3 years.); and
  • the company’s new tying tactic leverages the popularity of its legal news products in an attempt to prop up Lexis Advance’s install base and revenue stream (And which appears to be backfiring according to the verbatim comments found in the Feit survey.).

My bottom line:  LexisNexis needs a turnaround specialist in its C suite.