A federal judge on Tuesday blocked enforcement of part of President Donald Trump’s executive order to deny federal funding to sanctuary cities that refuse to help the government detain and deport immigrants. The court issued a nationwide injunction to block enforcement of Section 9(a) of E.O. 13768, Enhancing Public Safety in the Interior of the United States, 82 Fed. Reg. 8799 (Jan. 30, 2017), the provision that would allow the federal government to withhold funding from sanctuary jurisdictions. Text of Decision. For an analysis, see Steven D. Schwinn’s Constitutional Law Prof Blog post.

Prior to the court ruling, the administration’s latest effort to clamp down on sanctuary jurisdictions came on April 21st when the DOJ sent letters to nine jurisdictions demanding proof of compliance with 8 USC 1373. According to the DOJ press release:

The letters remind the recipient jurisdictions that, as a condition for receiving certain financial year 2016 funding from the Department of Justice, each of these jurisdictions agreed to provide documentation and an opinion from legal counsel validating that they are in compliance with Section 1373. The Department of Justice expects each of these jurisdictions to comply with this grant condition and to submit all documentation to the Office of Justice Programs by June 30, 2017, the deadline imposed by the grant agreement.

The piecemeal implementation of Trump’s executive order, should it ever be enforceable, is the topic of Sanctuary Jurisdictions and Select Federal Grant Funding Issues: In Brief (March 16, 2017, R44789). This report discusses questions that might be raised regarding the implementation of Trump’s EO 13768 by federal grant-making agencies on the impact of federal grant funding for designated sanctuary jurisdictions. The CRS report observes

Because of the complexity of implementing a centralized policy such as the EO through the decentralized structure of federal grants administration practices, there is uncertainty in determining the impact of the EO on federal grant funding for sanctuary jurisdictions. The impact could be affected by the discretion exercised by the Attorney General and the Secretary [of Homeland Security] in defining a “federal grant,” determining which programs are exempted because of providing necessary funding for law enforcement purposes, and determining what constitutes a “sanctuary jurisdiction.” The impact of the EO on federal grant funding could also be affected by how federal grant awarding agencies utilize discretion in administering the grant programs, including review of eligibility and conditioning federal grant awards.

End Note. See also this CRS report, Executive Orders: Issuance, Modification, and Revocation (April 16, 2014, RS20846) which discusses executive orders with a focus on the scope of presidential authority to execute such instruments, as well as judicial and congressional responses to their issuance, and  this LLB post for links to additional CRS reports on sanctuary jurisdictions. For additional background, see Darla Cameron’s How sanctuary cities work, and how Trump’s executive order might affect them (Washington Post, Jan. 25, 2017). — Joe

“The shift to digital delivery of serials content has had a profound effect on the information ecosystem” but not on pricing models report Stephen Bosch and Kittie Henderson in their LJ article, New World, Same Model: Periodical Pricing Survey 2017. “Most publishers have explored new ways of pricing their content—such as population served, FTE (full-time equivalent), tiered pricing based upon Carnegie classification, or other defining criteria—or the database model, which treats all content within an e-journal package as a database, eliminating the need for title by title reconciliation. However, in the end, the pricing conversation always seems to circle back to the revenue generated by the annual subscription model.” Here’s what the authors forecast:

The 2018 serials marketplace will continue to see steady price increases, with no indicators that this will change. Drivers in the marketplace, such as budget compression, currency fluctuation, OA, government mandates, shifts in the global political climate, new assessment and evaluation tools, and alternating patterns of the distribution of information offered by research platforms and social networks have not changed the fundamentals of the business models, and serials price inflation remains constant. Publisher and vendor consolidation will continue, and libraries will actively manage their portfolios to get the biggest return for their dollars. Annual price inflation has hovered in the 6% range since 2012. As in previous years, the 6% average price increase seen in 2017 is expected to be much the same for 2018. The mature market seems to have found the 5%–6% equilibrium a rate of increase that neither libraries nor publishers like but with which both can work.

— Joe

Currently the Register of Copyrights is appointed by the Librarian of Congress. That would change if H.R. 1695, Register of Copyrights Selection and Accountability Act of 2017, passes. The bill would make the Register position a presidential appointment with confirmation by the Senate, with 10-year term limit. It would create minimum standards for those who hold the Register of Copyrights position by requiring the officeholder to be a U.S. citizen who has professional background and experience in copyright law. Under the proposed legislation, the President will select a nominee from a list of names identified by a Congressional leadership panel that includes the Librarian of Congress.

H.R. 1695 was reported out of committee [H. Rept. 115-91] and placed on the Union Calendar on April 20th.  The Hill’s Dina LaPolt and John Meller in H.R. 1695: A vital first step towards Copyright Office modernization opine that this change makes sense:

The Register advises Congress and accordingly, Congress should have a hand in who holds this position.  It makes sense to appoint the Register via a standard nomination process involving our elected representatives, same as most other high-ranking government officials. Why should the Librarian have unilateral authority over an appointment that impacts so many livelihoods in the United States?

AALL opposes the bill, stating that our association believes it is unnecessary and would create management conflicts within the Library of Congress. But LaPolt and Meller report that two former Registers support it.

This bill is also supported by two previous Registers of Copyright, Marybeth Peters and Ralph Oman. They point out that the Act would address issues that have escalated in the relationship between the Copyright Office and the Library, which they state are “structural, not personal or political”, and explain that Congress should be able to obtain “independent copyright advice straight and true from the expert agency” rather than “filtered through the lens – and shaped by the perspective – of the head of the national library”.  Their opinion should carry great weight here—especially since they were themselves appointed unilaterally by the Librarian.

What do you think? — Joe

A new analytical tool incorporated into GovTrack late last year reveals when provisions of bills are incorporated into other bills by way of text incorporation analysis. “Only about 3% of bills will be enacted through the signature of the President or a veto override. Another 1% are identical to those bills, so-called ‘companion bills,’ which are easily identified. Our new analysis reveals almost another 3% of bills which had substantial parts incorporated into an enacted bill in 2015–2016. To miss that last 3% is to be practically 100% wrong about how many bills are being enacted by Congress,” writes GovTrack. For details see GovTrack’s blog post and illustration of this new technique. — Joe

Source: Govtrack

From the YouTube blurb for the below video:

Over the past decade, an alternative digital paradigm has slowly been taking shape at the edges of the internet. This new paradigm is the blockchain. After incubating through millions of Bitcoin transactions and a host of developer projects, it is now on the tips of tongues of CEOs and CTOs, startup entrepreneurs, and even governance activists. Though these stakeholders are beginning to understand the disruptive potential of blockchain technology and are experimenting with its most promising applications, few have asked a more fundamental question: What will a world driven by blockchains look like a decade from now?

— Joe

The complaint, filed late last week, asserts the interim provost and the University of Cincinnati illegally placed Jennifer Bard on administrative leave in March immediately following her response to local media reports about financial deficits at the College and faculty members’ responses to her efforts to reduce those deficits. The complaint also asserts Bard was denied due process of law under the Fourteenth Amendment when she was summarily placed on administrative leave, suffered First Amendment retaliation for speaking to the press on matters of public concern, and that the university breached both its contract with her and an agreed upon 6-month plan to restore mutual trust and communication. TaxProf Blog has the complaint.  — Joe

From the abstract of Algorithmic Entities, 95 Washington University Law Review (Forthcoming), by Lynn LoPucki (UCLA):

This Article argues that algorithmic entities — legal entities that have no human controllers — greatly exacerbate the threat of artificial intelligence. Algorithmic entities are likely to prosper first and most in criminal, terrorist, and other anti-social activities because that is where they have their greatest comparative advantage over human-controlled entities. Control of legal entities will contribute to algorithms’ prosperity by providing them with identities that will enable them to accumulate wealth and participate in commerce.

Four aspects of corporate law make the human race vulnerable to the threat of algorithmic entities. First, algorithms can lawfully have exclusive control of not just American LLC’s but also a large majority of the entity forms in most countries. Second, entities can change regulatory regimes quickly and easily through migration. Third, governments — particularly in the United States — lack the ability to determine who controls entities they charter and so cannot determine which have non-human controllers. Lastly, corporate charter competition, combined with ease of entity migration, makes it virtually impossible for any government to regulate algorithmic control of entities.

— Joe

Shutdown of the Federal Government: Causes, Processes, and Effects (Sept. 8, 2014, RL34680) discussess the causes of shutdowns, including the legal framework under which they may occur; processes related to how agencies may plan for the contingency of a shutdown; effects of shutdowns, focusing especially on federal personnel and government operations; and issues related to shutdowns that may be of interest to Congress. See also, Past Government Shutdowns: Key Resources (Sept. 29, 2015, R41759) which provides an annotated list of historical documents and other resources related to several past government shutdowns. Sources for these documents and resources include the Congressional Research Service, Government Accountability Office, House and Senate Committees, Office of Management and Budget, Office of Personnel Management, and the Executive Office of the President. — Joe

In How Google Cashes In on the Space Right Under the Search Bar (NYT, Apr. 23, 2017), Daisuke Wakabayashi wrote, “[w]hen Google’s parent company, Alphabet, reports earnings this week, the internet giant’s big profits are expected to demonstrate yet again that the billboard space accompanying Google queries is the web’s most valuable real estate for advertisements,” adding

In the 17 years since Google introduced text-based advertising above search results, the company has allocated more space to ads and created new forms of them. The ad creep on Google has pushed “organic” (unpaid) search results farther down the screen, an effect even more pronounced on the smaller displays of smartphones.

The changes are profound for retailers and brands that rely on leads from Google searches to drive online sales. With limited space available near the top of search results, not advertising on search terms associated with your brand or displaying images of your products is tantamount to telling potential customers to spend their money elsewhere.

— Joe

Time’s Katie Reilly offers a backgrounder on impeachment in the context of the Trump presidency in How Difficult Would It Be to Impeach President Trump? In the article, Reilly observes “Bush and Obama both faced idle impeachment threats that never amounted to anything. People who now believe there’s a serious case for impeaching Trump will have to overcome the reputation established by those who raise the specter of impeachment merely to demonstrate political opposition.” — Joe

About The Rise of Robots and the Law of Humans, Horst Eidenmueller (Oxford) writes

The main theses developed in this article are the following: (i) robot regulation must be robot- and context-specific. This requires a profound understanding of the micro- and macro-effects of ‘robot behaviour’ in specific areas. (ii) (Refined) existing legal categories are capable of being sensibly applied to and regulating robots. (iii) Robot law is shaped by the ‘deep normative structure’ of a society. (iv) If that structure is utilitarian, smart robots should, in the not too distant future, be treated like humans. That means that they should be accorded legal personality, have the power to acquire and hold property and to conclude contracts. (v) The case against treating robots like humans rests on epistemological and ontological arguments. These relate to whether machines can think (they cannot) and what it means to be human. I develop these theses primarily in the context of self-driving cars – robots on the road with a huge potential to revolutionize our daily lives and commerce.

— Joe

A new book, Jeff Seul, Josias N. Dewey and Shawn Amuial’s The Blockchain: A Guide for Legal and Business Professionals, published by Thomson Reuters last year, promises that “no prior experience with blockchain technology is necessary” to get started. Here’s the blurb from the Thomson Reuters e-commerce site:

The Blockchain: A Guide for Legal and Business Professionals provides professionals such as lawyers, accountants, consultants, and business executives, the information they need to know in order to understand more complex implementations and concepts associated with the technology and, more importantly, how it might be able to help their business. The book also provides knowledge and insight to those with a more in-depth understanding of blockchain technology by developing and emphasizing a legal and business perspective.

Chapters include:
•The Fundamentals of Blockchain Technology
•Smart Contracts
•Blockchain Protocols
•Decentralized Autonomous Organizations
•Key Management for Business and Professional Firms
•Digital Identification on the Blockchain
•Related Technologies that Complement Blockchain Technology
•General Policy Considerations for Future Regulations
•Conclusions and Thoughts about the Future

— Joe

The Brennan Center for Justice just released Criminal Justice in President Trump’s First 100 Days. The analysis looks at what President Trump and his administration have said and done “so far to address crime and justice, and what the country can expect in the weeks and months ahead.” Here’s a snip from the report’s Executive Summary:

So far, many of the administration’s actions are symbolic. But they evidence a clear return to the discredited “tough on crime” rhetoric of the 1990s, and suggest a significant departure from the Obama administration’s approach to criminal justice. Trump’s turn also directly contradicts the emerging consensus among conservatives, progressives, law enforcement, and researchers that the country’s incarceration rate is too high, and that our over-reliance on prison is not the best way to address crime. As crime remains near historic lows — despite local, isolated increases — these proposed changes are, ultimately, solutions in search of a problem. Taken to an extreme, they would set back the national trans-partisan movement to end mass incarceration.

H/T to Sentencing Law and Policy’s blog post. — Joe

Jared A. Goldstein (Roger Williams) concludes his very interesting article, Unfit for the Constitution: Nativism and the Constitution, from the Founding Fathers to Donald Trump as follows:

Today, a wide-ranging campaign targets Muslims and asserts that they hold values that are fundamentally incompatible with the Constitution. With the election of Donald Trump, adherents of that view now hold positions of power in the White House. The allegation that Muslims are inherently un-American should be recognized as part of a long history of American nativism, in which anti-immigrant movements have routinely claimed that unwanted immigrants are hostile to constitutional values. In the 1850s, the Know-Nothings argued that Catholicism was incompatible with the Constitution. In 1882, Congress excluded Chinese immigrants based on the assertion that they were too foreign to embrace constitutional principles. In 1924, Congress enacted the National Origins Act out of the belief that members of the so-called Nordics race alone were genetically disposed to embrace constitutional values, while Jews, Italians, Poles, and Asians would inevitably destroy the nation’s constitutional government. In the late twentieth century and today, anti-immigrant groups have argued that immigration by Latin Americans and Asians is destroying the Constitution.

All of these movements invoked allegations of hostility to the Constitution as the touchstone for identifying dangerous foreigners. In these movements “the Constitution” functions principally as a symbol of the United States, rather than a concrete legal document. To say that some people are hostile to the Constitution is simply a code for saying that they are hostile to the United States, that they are un-American. This way of speaking about the Constitution comes naturally to Americans as a result of the long tradition of identifying what it means to be American by reference to the Constitution, of saying that being American means believing in a set of values embodied in the Constitution.

What the history explored in this article should show is that the creedal conception of American nationalism—the belief that being American means believing in a common creed embodied in the Constitution—has not always been a benign and universalistic force. Devotion to the Constitution may be the cement that unites Americans, but it has also repeatedly been invoked to justify excluding unwanted people who, by race, religion, or national origin, do not share the traits of native-born Americans.

Recommended. — Joe

From the introduction to Iran Missile Tests and Sanctions (Feb. 8, 2017, IN10652):

On February 1, 2017, the Trump Administration announced that it was “officially putting Iran on notice” for recent actions that “threaten U.S. friends and allies in the region,” including the January 29 test of a ballistic missile and “weapons transfers [to groups such as Houthi rebels in Yemen], support for terrorism, and other violations of international norms.” The July 2015 multilateral nuclear agreement with Iran, the “Joint Comprehensive Plan of Action” (JCPOA), does not restrict Iran’s ballistic missile programs. However, U.N. Security Council Resolution 2231, which endorses the JCPOA, prohibits Iran from exporting weaponry and “call[s] upon” Iran “not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons, including launches.” Yet, Iran has conducted several ballistic missile tests since JCPOA Implementation Day on January 16, 2016—the day Resolution 2231 formally took effect.

For a timely comprehensive overview of US sanctions against Iran see Iran Sanctions (Apr. 14, 2017, RS20871). — Joe

Under Section 4 of the 25th Amendment, the vice president and a majority of cabinet officers or “of such other body as Congress may by law provide” may jointly decide that a president is unfit to serve. Following the 25th Amendment, on April 14th, Rep. Earl Blumenauer (D-Oregon) introduced the Strengthening and Clarifying the 25th Amendment Act of 2017, HR 2093. HR 2093 would “provide for an alternative body to transmit a written declaration that the President is unable to discharge the powers and duties of his office in accordance with the provisions of the 25th Amendment of the Constitution.” In a nutshell, if passed which it won’t in a Republican controlled Congress, HR 2093 would empower former presidents and vice presidents of both parties in coordination with the sitting vice president to determine if a president is fit for office. The motivation appears to be that the 25th Amendment would fall short in cases of emotional or mental incapacity because Cabinet officers might be too conflicted to make such a determination because they were appointed by the sitting president.

One can only wonder how the living former Republican presidents and vice presidents would vote on Trump’s fitness to lead the US. — Joe

The New York Times is reporting that Whittier Law School is planning to shut its doors. The school has not set a date but announced that it will not admit 1Ls this fall. Whittier is the first fully accredited school to announce plans to close. For more, see Elizabeth Olson’s DealBook post. See also Whittier Law School may close, as trustees announce no new students (National Jurist) which notes that Whittier’s enrollment has dropped from 700 in 2010 to less than 450. During the same time period, its median LSAT has dropped from 152 to 146. Its bar passage rate has dropped to 38.1 percent for the class of 2015, the most recent data available. It was as high as 69 percent in 2012. Inside Higher Ed reports that some law school faculty members have sued to block the school from closing. The faculty members claim that Whittier College is seeking to profit from a sale of the land on which the law school is located. Here’s their TRO brief. — Joe

According to the press release, some of the new features of the GPO’s new website, which is in beta at this time, include being mobile friendly, improved internal site search, improved user experience, easy access to GPO products and services, and easy access to GPO social media platforms. Once out of beta, this site will replace the GPO’s current website.

Give the new site a test drive at https://beta.gpo.gov/ . Visitors can submit general feedback to the GPO at https://www.surveymonkey.com/r/betagpodotgov

— Joe