Concord Law School along with Kaplan University have been acquired by Purdue University to beef up Purdue’s online education offerings. What Prudue is going to do with America’s oldest online law school is beyond me. Only one state bar allows students from Concord Law School to sit for the bar exam and that’s California. “Graduates of Concord Law had a very poor showing during the July 2016 administration of the California bar exam, with an overall passage rate of just 16 percent. Only 27 percent of first-time takers from the school passed the test last summer,” writes ATL’s Staci Zaretsky in Big Ten University Purchases Online Law School With Abysmal Bar Passage Rates, adding “Purdue’s purchase may be revolutionary, but we’re not quite sure that the school’s students will be well served by a law school with such discouraging outcomes.” — Joe

Here’s the abstract for Michael Rich’s (Elon Law) Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment:

At the conceptual intersection of machine learning and government data collection lie Automated Suspicion Algorithms, or ASAs, algorithms created through the application of machine learning methods to collections of government data with the purpose of identifying individuals likely to be engaged in criminal activity. The novel promise of ASAs is that they can identify data-supported correlations between innocent conduct and criminal activity and help police prevent crime. ASAs present a novel doctrinal challenge, as well, as they intrude on a step of the Fourth Amendment’s individualized suspicion analysis previously the sole province of human actors: the determination of when reasonable suspicion or probable cause can be inferred from established facts. This Article analyzes ASAs under existing Fourth Amendment doctrine for the benefit of courts who will soon be asked to deal with ASAs. In the process, the Article reveals how that doctrine is inadequate to the task of handling these new technologies and proposes extra-judicial means of ensuring that ASAs are accurate and effective.

— Joe

The debt restructuring petition was filed by Puerto Rico’s financial oversight board in the US District Court in Puerto Rico on Wednesday under Title III of PROMESA. Title III provides a court debt restructuring process akin to US bankruptcy protection. Puerto Rico is barred from a traditional municipal bankruptcy protection under Chapter 9 of the Bankruptcy Code. The action sent Puerto Rico, whose approximately $123 billion in debt and pension obligations far exceeds the $18 billion bankruptcy filed by Detroit in 2013, into uncharted ground. Enacted only last summer the Puerto Rico Oversight, Management, and Economic Stability Act or PROMESA, Pub. L. No. 114-187 was designed help insolvent territories like the Commonwealth restructure its billions in debt and pension obligations. Next step, Chief Justice Roberts will appoint a life-tenured judge to hear the case.

CRS produced this backgrounder on PROMESA. See also Melissa Jacoby’s Presiding Over Municipal Bankruptcies: Then, Now, and Puerto Rico, 91 American Bankruptcy Law Journal __, 2017 Forthcoming, Why Puerto Rico Will Likely Rely On PROMESA Title III, Law360, March 1, 2017 and Issues To Expect In A Title III Puerto Rico Restructuring, Law360, March 8, 2017. — Joe

Angela Feleccia Epps, dean of Florida A&M University’s College of Law, was dismissed this week after less than 18 months on the job. The law school’s bar passage rate for Florida’s February 2017 exam was 46.2 percent. For July 2016, the pass rate  was 52.9 percent, the Florida Board of Bar Examiners reported. The school’s median LSAT score is 145. For more, see Stephanie Francis Ward’s ABAJ report, Law school leader among four deans dismissed from Florida A&M. — Joe

On Lextalk, LexisNexis makes an obvious distinction: it offers resources low-cost search services do not provide. In a nutshell, Low-Cost Legal Research = Low-Value Results. LexisNexis Equips You with Much, Much More (March 18, 2017) claims that Lexis Advance is simply better because of its offerings (even if you don’t need the resources, tools and other value-add-ons). No metrics, no comparison of search engine performance, simply an unsubstantiated warning to lawyers that “cost savings usually equals case-law light,” meaning as displayed below, “low-cost can cost you.” See also Lextalk’s Low-Cost Legal Research: Go Cheap, Get Gaps. Go LexisNexis, Gain Confidence (Apr. 5, 2017).

In LexisNexis Comes Out Swinging Against Lower-Cost Legal Research Services, the Lawyerist’s Lisa Needham makes a perceptive observation: “What LexisNexis seems to overlook in their eagerness to go after everyone else is that it merely highlights how much they see things like Fastcase and Google Scholar as competition. If you’re scared enough to mount an entire campaign about how great you are and how terrible other services are, you’ve pretty much already acknowledged that they represent a legitimate threat. Fastcase and Casemaker should be nothing but proud to be highlighted in this fashion.”

Competition is definitely increasing in the small law market with Lexis, Westlaw and Fastcase in a virtual tie in the small law market and it does look like Lexis is mounting a campaign to acquire a larger install base in it. Lextalk recently published posts such as Texas Legal Research: 4 Ways to Get It Done Quickly, Thoroughly, Massachusetts Legal Research: 4 Ways to Get It Done Quickly, Thoroughly and Illinois Legal Research: 4 Ways to Get It Done Quickly, Thoroughly, all of which were published on April 25, 2017. Each post offers a discount for Lexis Advance that is limited to any attorney in a law firm with 1 – 50 attorneys. So has Lexis been losing ground to Casemaker and Fastcase in the Texas, Massachusetts and Illinois small law market? — Joe

End note: Members of the state bars of Texas, Massachusetts and Illinois receive Fastcase access as a membership benefit.

Here’s the abstract for Rory Van Loo’s (Boston Univ. School of Law) interesting article, Rise of the Digital Regulator, 66 Duke Law Journal 1267 (2017):

The administrative state is leveraging algorithms to influence individuals’ private decisions. Agencies have begun to write rules to shape for-profit websites such as Expedia and have launched their own online tools such as the Consumer Financial Protection Bureau’s mortgage calculator. These digital intermediaries aim to guide people toward better schools, healthier food, and more savings. But enthusiasm for this regulatory paradigm rests on two questionable assumptions. First, digital intermediaries effectively police consumer markets. Second, they require minimal government involvement. Instead, some for-profit online advisers such as travel websites have become what many mortgage brokers were before the 2008 financial crisis. Although they make buying easier, they can also subtly advance their interests at the expense of those they serve. Publicly run alternatives lack accountability or—like the Affordable Care Act health-insurance exchanges—are massive undertakings. The unpleasant truth is that creating effective digital regulators would require investing heavily in a new oversight regime or sophisticated state machines. Either path would benefit from an interdisciplinary uniform process to modernize administrative, antitrust, commercial, and intellectual property laws. Ideally, a technology meta-agency would then help keep that legal framework updated.

— Joe

US Supreme Court Opinions and their Audiences (Cambridge UP, 2017) by Ryan C. Black, Ryan J. Owens, Justin Wedeking and Patrick C. Wohlfarth is the first study specifically to investigate the extent to which US Supreme Court justices alter the clarity of their opinions based on expected reactions from their audiences. The authors examine this dynamic by creating a unique measure of opinion clarity and then testing whether the Court writes clearer opinions when it faces ideologically hostile and ideologically scattered lower federal courts; when it decides cases involving poorly performing federal agencies; when it decides cases involving states with less professionalized legislatures and governors; and when it rules against public opinion. The data shows the Court writes clearer opinions in every one of these contexts, and demonstrates that actors are more likely to comply with clearer Court opinions. For more, the work was reviewed in the April issue of Law and Politics Book Review here. — Joe

Judicata is a legal search service still evolving into becoming a fully-fledged, professional grade one but it is getting very close to being ready. The search service already claims to be better than WEXIS. According to Judicata’s CEO Itai Gurari, “[w]e’ve focused on building a search engine that returns the best results the fastest, and at this point it mops the floor with Westlaw and Lexis.” Why? Because Judicata is mapping the law with extreme accuracy and granularity. Bob Ambrogi was given an opportunity to test drive Judicata yesterday and reports his findings today at After Five Years in Stealth Mode, Judicata Reveals Its Legal Research Service. Recommended. — Joe

In The Original Meaning of ‘Emoluments’ in the Constitution, 52 Georgia Law Review ___ (2017), Robert Natelson explores the original meaning of the word “emolument.” The article identifies “four common definitions in founding-era political discourse. It places the constitutional use within its context as part of a larger reform movement in Britain and America and as driven by other historical events. The Article examines how the word was employed in contemporaneous reform measures, in official congressional and state documents, in the constitutional debates, and in the constitutional text. … The author concludes that the three appearances of “emoluments” in the Constitution had a common meaning, which was ‘compensation with financial value, received by reason of public employment.'” Interesting. — Joe

Of the 556 key senior level positions requiring Senate confirmation, the Trump administration has no nominee yet for 465 positions according to the Washington Post’s appointments tracker. See Tracking how many key positions Trump has filled so far, an interactive database-driven tool for monitoring key appointments. (Of course there are many more less senior level positions still unfilled as well.)

Nominees for many of the unfilled senior level positions must meet qualifications mandated by Congress. “The preponderance of evidence and historical practice suggests that Congress generally has the constitutional authority to establish statutory qualifications for federal government positions.” Quoting from the conclusion of the CRS report, Statutory Qualifications for Executive Branch Positions (Sept. 9, 2015, RL33886). The report adds

Although Congress enjoys broad discretion in this area, there appears to be consensus that it may not set qualifications that limit the President’s selection to the extent that the appointment is a de facto legislative designation. Neither case law nor statute has established a bright line that clearly defines the boundaries of this authority. Within this somewhat ambiguous environment, Congress, at times, has enacted standards that limit the President’s selection pool to a greater extent than the executive branch sees as legitimate.

This CRS report provides examples of department and agency leadership positions with statutory qualification requirements and similar examples for independent collegial bodies, such as regulatory boards and commissions. At the other end of the spectrum, see the GAO’s Characteristics of Presidential Appointments that do not Require Senate Confirmation (GAO-13-299R, Mar 1, 2013). — Joe

From Brian Forde’s Harvard Business Review article, Using Blockchain to Keep Public Data Public:

The public blockchain would fundamentally change the way we govern and do business. Rather than asking companies and consumers to downgrade their digital interactions in order to comply with the law, the government would create an adaptable system that would reduce the amount of paperwork and compliance for businesses and consumers. Rather than force emerging technologies and business models into legal gray areas, the government would use algorithmic regulation to create a level playing field for incumbent companies in their respective industries.

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

From the abstract of Reproducing Gender and Race Inequality in the Blawgosphere, a draft chapter in Fate of Legal Scholarship (Cambridge UP, Forthcoming)  by Jane C. Murphy (Baltimore) and Solangel Maldonado (Seton Hall):

The use of the Internet and other digital media to disseminate scholarship has great potential for expanding the range of voices in legal scholarship. Legal blogging, in particular, with its shorter, more informal form, seems ideal for encouraging commentary from a diverse group of scholars. This Chapter tests this idea by exploring the role of blogging in legal scholarship and the level of participation of women and scholars of color on the most visible academic legal blogs. After noting the predominance of white male scholars as regular contributors on these blogs, we analyze the relative lack of diversity in this emerging form of scholarship. Finally, we offer suggestions for reversing these trends and creating a more inclusive blogosphere and enriching its potential for lively, informed scholarship.

— Joe

As the House Committee on Financial Services meets today to begin the mark-up of the Financial CHOICE Act of 2017, H.R. 10, [Committee memorandum], “Too Big To Fail” will be in the news again because of H.R. 10’s Dodd-Frank Act repeal provisions. Systemically Important or “Too Big to Fail” Financial Institutions (Jan. 4, 2017, R42150) discusses the economic issues raised by “Too Bill To Fail,” broad policy options, and policy changes made by the relevant Dodd-Frank provisions. — Joe

With the emoluments lawsuit proceeding, interest in presidential impeachment is increasing. The impeachment process provides a mechanism for removal of the President found to have engaged in “treason, bribery, or other high crimes and misdemeanors.” The Constitution places the responsibility and authority to determine whether to impeach and to draft articles of impeachment in the hands of the House of Representatives. Should the House vote to impeach and vote articles of impeachment specifying the grounds upon which impeachment is based, the matter is then presented to the Senate for trial. Under the Constitution, the Senate has the sole power to try an impeachment. The decision whether to convict on each of the articles must be made separately. A conviction must be supported by a two-thirds majority of the Senators present. A conviction on any one of the articles of impeachment brought against an individual is sufficient to constitute conviction in the trial of the impeachment. Should a conviction occur, the Senate must determine what the appropriate judgment is in the case. The Constitution limits the judgment to either removal from office or removal and prohibition against holding any future offices of “honor, Trust or Profit under the United States.”

For background see these CRS reports, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice (Dec. 9, 2010, 98-186) and Impeachment and Removal (Oct. 29, 2015, R44260). See also, Frank O. Bowman and Stephen L. Sepinuck, ‘High Crimes & Misdemeanors’: Defining the Constitutional Limits on Presidential Impeachment, 72 Southern California Law Review 1517 (1999)(Arguing there are impeachable offenses for which Congress may constitutionally and properly decide not to impeach or remove a President.) and Michael J. Gerhardt’s The Lessons of Impeachment History, 67 George Washington Law Review 603 (1999)(“[M]y focus has been to clarify what constitutional structure and history has to teach us about the process of impeachment. … These lessons in turn help to clarify the kinds of questions that members of Congress should ask and the kinds of factors members of Congress should take into consideration when trying to decide whether to impeach and remove the President of the United States.”)

End Note: What role might SCOTUS play in a presidential impeachment? Presidential Impeachment: The Legal Standard and Procedure (Findlaw) notes that “the Supreme Court of the United States has decided that it should not review judicial impeachments, using the ‘political question’ doctrine to sidestep the issue. Walter Nixon v. United States, 506 U.S. 224 (1993). Concurring opinions by Justice White and Justice Souter in this case offer the following dicta on presidential impeachments:

The concurring opinion of Justice White indicates an unwillingness, on his part at least, to conclude in advance that a Presidential impeachment would be unreviewable. See Walter Nixon v. United States, 506 U.S. at 244. As stated by Justice White at footnote 3, page 247 of the Walter Nixon case:

“Finally, as applied to the special case of the President, the majority’s argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis.”

This view is echoed by Justice Souter in his concurring opinion in the same case: “If the Senate were to act in a manner seriously threatening the integrity of its results…judicial interference might well be appropriate.” Walter Nixon v. United States, 506 U.S. at 253.

— Joe

From the press release:

Congratulations to Associate Dean Usha Rodrigues, Law Library Director Carol A. Watson and Faculty Services Librarian Thomas “T.J.” Striepe for their work with the Terry College of Business that resulted in an approximately $50,000 grant from the Institute of Museum and Library Services. This money will provide for the design of an open-source open government digital transparency platform that will offer data access to and visualization of the U.S. legislative process. This interactive, informative tool will aid citizens in becoming more engaged, allowing them to form their opinions on legislation in a quick, fact-based and safe online environment. By combining text analysis, network analysis and visualization, the project will provide insights into how libraries can take on new roles supporting access to government and legislative information and data.

Kudos — Joe

From Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement (February 9, 2017 R44761):

The legal procedure through which the United States withdraws from treaties and other international agreements has been the subject of long-standing debate between the legislative and executive branches. Recently, questions concerning the role of Congress in the withdrawal process have arisen in response to statements made by President Donald J. Trump that he may consider withdrawing the United States from certain high-profile international commitments. This report outlines the legal framework for withdrawal from international agreements under domestic and international law, and it examines legal issues related to the potential termination of two agreements that may be of significance to the 115th Congress: the Paris Agreement on climate change and the Joint Comprehensive Plan of Action (JCPOA) related to Iran’s nuclear program.

Although the Constitution sets forth a definite procedure whereby the Executive has the power to make treaties with the advice and consent of the Senate, it is silent as to how treaties may be terminated. Moreover, not all agreements between the United States and foreign states are made through Senate-approved, ratified treaties. The President also enters into executive agreements, which do not receive the Senate’s advice and consent, and “political commitments,” which are not binding under domestic or international law. The legal procedure for withdrawal often depends on the type of agreement at issue, and the process may be further complicated when Congress has enacted legislation implementing the agreement into domestic law.

— Joe

For Facebook, Jen Weedon, William Nuland and Alex Stamos write that the Company has “had to expand our security focus from traditional abusive behavior, such as account hacking, malware, spam and financial scams, to include more subtle and insidious forms of misuse, including attempts to manipulate civic discourse and deceive people. These are complicated issues and our responses will constantly evolve, but we wanted to be transparent about our approach.” That  approach is detailed by Facebook in Information Operations and Facebook (Apr. 27, 2017, version 1.0). — Joe

“It’s time to announce the winner of Above the Law’s 2017 Law Revue Video Contest. And the winner is… There is no winner. In fact, you — or many of you, at least — are a bunch of losers”, is how David Lat opens Law Revue Video Contest 2017: The Winner!. You see, web traffic to the contest’s web page was nowhere near as high as the number of votes some of the contestants received. That discrepancy alerted ATL to the possibility that some ethically challenged students gamed the contest in favor of their finalist. [Finalists here] ATL is now conducting a do-over of its 2017 Law Revue Video contest. Lat writes “[i]f you return to Above the Law at some point on Monday, you will see a post providing you with information on how to re-vote in the Law Revue Video Contest, using a more secure system.” — Joe

At the close of 2016, Thomson Reuters reported that the operating profit margin excluding fourth quarter charges for Thomson Reuters Legal was 30%. For Thomson Reuters Tax & Accounting, the operating profit margin excluding fourth quarter charges was 20%. This 10 percentage point difference is not atypical in the Company’s annual financial reports for both divisions. Some years the difference is even greater. But why?

I believe there are sufficient similarities to compare these two markets. Consumers in both markets are, for example, information and analytics intensive professionals. Both markets acquire similar information resources with (presumably) similar publishing costs. And both markets are dominated by a small number of very large and expensive value-adding suppliers who offer a similar mix of resources and services in print and digital formats.

Is the answer to the question “why?” that Thomson Reuters’ faces stiffer competition from specialty law publishers like Wolters Kluwer and Boomberg BNA to produce a 10% percentage point profit margin differential? Or is it that tax and accounting information consumers are better price negotiators than we are? I think both come into play. But since one can negotiate better pricing — one has greater bargaining power — in a more competitive market, competition from well-entrenched specialty tax and accounting providers probably is the primary reason Thomson Reuters’ profit margin is 10 percentage points lower that its legal division.

Being privately held, we have no financial data for Bloomberg BNA but we do for Wolters Kluwer. In 2016, Wolters Kluwer’s operating profit margin for its Tax & Accounting division was 26.9%, almost 7 percentage points better that Thomson Reuters’ Tax & Accounting division. One can almost say that Thomson Reuters is an also-ran in the tax and accounting market. Of course, one can also say that Wolters Kluwer is also almost an also-ran in the more general law and regulatory market because that market is dominated by LexisNexis and Thomson Reuters. (Wolters Kluwer reported an operating profit margin of only 12% for its Legal & Regulatory division. Remember, Thomson Reuters Legal reported a 30% profit margin.)

In a practice I would recommend to library budget managers because of the insights to be gained, I have followed the financial reporting of RELX Group (for LexisNexis), Thomson Reuters (for TR Legal) and Wolters Kluwer for several years now, since the beginnings of the Great Recession in fact. This information is handy to have for background purposes when representatives from our very expensive value-adding providers of law and law-related information knock on your office door to discuss their latest offer. — Joe