It should surprise no one that Cooley Law School was ranked last in the lowest median LSAT with a score of 142 this year (The 25th percentile LSAT score for Cooley was 139). But which law schools rank in the top 12 with the highest LSAT scores? See 12 Law Schools with the highest LSAT scores (US News The Short List Blog).

Which law schools do applicants with high LSAT scores favor? See A De Gustibus Approach to Ranking Law Schools by Christopher J. Ryan Jr. and Brian L. Frye. Here’s the abstract:

The U.S. News & World Report “Best Law Schools Rankings” define the market for legal education. Law schools compete to improve their standing in the rankings and fear any decline. But the U.S. News rankings incite contention, because they rely on factors that are poor proxies for quality like peer reputation and expenditures per student. While many alternative law school rankings exist, none have challenged the market dominance of the U.S. News rankings. Presumably the U.S. News rankings benefit from a first-mover advantage, other rankings fail to provide a clearly superior alternative, or some combination of the two.

This article assumes that the purpose of ranking law schools is to help students decide which school to attend. Accordingly, it describes an approach to ranking law schools based entirely on the revealed preferences of students. Law schools admit applicants based almost entirely on their LSAT score and undergraduate GPA, and compete to matriculate students with the highest possible scores. Our de gustibus approach to ranking law schools assumes that the “best” law schools are the most successful at matriculating those students. This article concludes with a “best law schools ranking” based exclusively on the LSAT scores and undergraduate GPAs of matriculating students.

— Joe

Take Care, a blog monitoring Trump’s adherence to the law of the land under Article II of the Constitution, has been launched and is staffed by an impressive list of contributors that includes Larry Tribe, Erwin Chemerinsky and more than 20 former Supreme Court clerks and numerous former senior Executive Branch officials. Recommended. — Joe

So this morning’s email from the Land of 10,000 Invoices said, “Thomson Reuters is conducting a survey to gather your feedback as a valued customer.” OK, what the hell. Sometimes taking a vendor survey is revealing. From the survey’s first page display comes the first question:

Thank you for taking the time to participate in our survey. The survey is brief and should take around 5-7 minutes to complete. Your opinions will help us ensure that we are providing the best possible solutions and services.

What best describes your role?

Judge

Staff Attorney

Legal Adviser

Clerk of Court

Court Administrator/Court Manager

Courtroom Clerk

IT Specialist

Management Information Systems (MIS) Director

Other (please specify) ____________

And when I specified “Law Librarian” the response I received was “We thank you for your time spent taking this survey.  Your response has been recorded.” At least the survey took less than a minute. File this under “Friday Fun from Thomson Reuters.” I was pretty sure I wouldn’t get too deep into the survey because of the listed job titles. Can’t the “answer company” manage its email lists better for targeting surveys? — Joe

Placed on probation by the ABA, losing its federal loan revenues, and losing much of its tuition paying student body as a consequence, Charlotte School of Law is on the verge of collapse if it doesn’t do something to overhaul itself. The private law school has announced plans to affiliate with a northeastern university, one not yet identified, and to go non-profit. From Wednesday’s NPR  program:

“MT: How would this work?

LW: The school’s new dean, Scott Broyles, says the plan is to partner with a university in the northeast. InfiLaw, the company who now owns Charlotte School of Law, wouldn’t make academic decisions, but, instead, deal with the school’s day-to-day operations.

MT: How much of a difference would this change make? Is it a smokescreen?

LW: It’s hard to say at this point. It’s not clear how that agreement between the non-profit board and InfiLaw would work, nor how much the school would pay InfiLaw. But the plan also calls for faculty to play a bigger role in making academic decisions, starting with admissions standards.”

“MT: Is this enough to persuade the Department of Education to begin cutting federal loan checks again to Charlotte School of Law?

LW: That remains to be seen. A letter from the Department of Education in January didn’t mention the option of re-instating federal loan money to the school back. It simply noted because the school hadn’t agreed to close, students wouldn’t have their federal loans forgiven. But Broyles [the new dean] says a few things have changed since then.”

See also the ABAJ article, Can for-profit InfiLaw schools be had on the cheap, and would they be worth it? because Sterling Partners may be unloading all three of its for-profit InfiLaw System law schools, including Charlotte School of Law. — Joe

In his introduction to The Foreign Emoluments Clause and the Chief Executive, Iowa Law prof Andy Grewal writes “[t]he 2016 Presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. … Donald Trump’s successful election has ignited public and scholarly interest in the Foreign Emoluments Clause and, specifically, the meaning of the term ’emolument.’” Here’s the abstract:

This article, forthcoming in the Minnesota Law Review, extensively examines whether and to what extent President Trump risks violating the Foreign Emoluments Clause through his continued interests in the Trump Organization. Numerous legal authorities show that the clause is narrower than is commonly asserted, but that serious constitutional problems will arise if President Trump becomes entangled in the organization’s business activities.

— Joe

I believe this is a first. From SCOTUSblog’s Thursday round-up by Edith Roberts:

In Endrew F. v. Douglas County School District, a unanimous court ruled that the Individuals with Disabilities Education Act requires a school to offer an “individualized education program” reasonably calculated to allow the student to progress in the child’s circumstances. Coverage of the decision comes from Emma Brown and Ann Marimow in The Washington Post, who report that the court “raised the bar for the educational benefits owed to millions of children with disabilities in one of the most significant special-education cases to reach the high court in decades.” In The Wall Street Journal, Jess Bravin reports that although “the specific decision overruled was decided in 2015, the phrase the justices rejected derives from a 2008 ruling by Judge Neil Gorsuch, President Donald Trump’s Supreme Court nominee, who had been defending that very decision at a Senate Judiciary Committee hearing when word of Chief Justice Roberts’s opinion reached the Hart Senate Office Building.

NPR reports “[w]hen questioned on his record, in light of this new ruling, during his hearing today by Texas Sen. John Cornyn, [Judge Gorsuch] said ‘I was wrong, senator, because I was bound by circuit precedent, and I’m sorry.'” — Joe

Apparently the answer is “yes” according to Univ. of Virginia law prof and former chief of staff of the Joint Committee on Taxation, George K. Yin. Yin writes

President Trump’s continuing refusal to release his tax returns despite the contrary common practice of presidents over the last 40 years has spurred interest in finding alternative ways to obtain the information. This article describes the authority of Congress, under section 6103(f)(1) and (4)(A), to obtain, inspect, and disclose the confidential tax information of any taxpayer, including the president, without the taxpayer’s consent. The authority may be exercised by any one of three tax committees: the House Ways and Means Committee, the Senate Finance Committee, and the Joint Committee on Taxation.

For details, see Yin’s article Congressional Authority to Obtain And Release Tax Returns, 154 Tax Notes 1013 (2017). Interesting. — Joe

Westlaw carries the full text of the sixth edition of the National Survey of State Laws online. Therein lies the problem. In addition to not stating online that the sixth edition has been superceded by the much more recent seventh edition (which Westlaw is going to publish online), the compiliers of the State Laws Survey have released two updates and four (or is it five?) new chapters that are not online. Bottom line: if you are using the National Survey of State Laws on Westlaw, you are searching eight-year-old topical state laws surveys. Make a note of that, researchers, at least until the seventh edition is online.

Time for the folks in the Land of 10,000 Invoices to get the seventh edition of this valuable resource uploaded and to keep it updated once it is. Perhaps Lexis or BNA can do a better publishing job for this title.– Joe

PS: A reader has commented that the seventh edition of the National Survey of State Laws is available, apparently since Jan. 12, 2016, on HeinOnline.

Key takeaways from the CRS report Impeachment and Removal (October 29, 2015, R44260) include:

The Constitution gives Congress the authority to impeach and remove the President, Vice President, and other federal “civil officers” upon a determination that such officers have engaged in treason, bribery, or other high crimes and misdemeanors.

A simple majority of the House is necessary to approve articles of impeachment.

If the Senate, by vote of a two-thirds majority, convicts the official on any article of impeachment, the result is removal from office and, at the Senate’s discretion, disqualification from holding future office.

The Constitution does not articulate who qualifies as a “civil officer.” Most impeachments have applied to federal judges. With regard to the executive branch, lesser functionaries—such as federal employees who belong to the civil service, do not exercise “significant authority,” and are not appointed by the President or an agency head—do not appear to be subject to impeachment. At the opposite end of the spectrum, it would appear that any official who qualifies as a principal officer, including a head of an agency such as a Secretary, Administrator, or Commissioner, is likely subject to impeachment.

Impeachable conduct does not appear to be limited to criminal behavior. Congress has identified three general types of conduct that constitute grounds for impeachment, although these categories should not be understood as exhaustive: (1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.

The House has impeached 19 individuals: 15 federal judges, one Senator, one Cabinet member, and two Presidents. The Senate has conducted 16 full impeachment trials. Of these, eight individuals—all federal judges—were convicted by the Senate.

— Joe

As a quick follow-up to my earlier post titled 10,000 documents: Is there a flaw in West Search? (March 20, 2017), it appears that a West reference attorney has confirmed my conclusion that Westlaw does not offer as comprehensive a searching capability as Lexis.

In reading Mary Whisner’s (Reference librarian, Gallagher Law Library, University of Washington School of Law) research paper Comparing Case Law Retrievals, Mid-1990s and Today, Appendix B records an exchange between Whisner and a West reference attorney. Here’s the pertinent parts:

11/18/2016 01:14:35PM Agent (Anna Wiles): “Those searches seem to be maxing out.”

11/18/2016 01:14:51PM Agent (Anna Wiles): “Sometimes, the algorithm will cut off before 10,000.”

11/18/2016 01:23:26PM Agent (Anna Wiles): “If you run the search in all states and all federal, it will max out because it is a broad search.”

11/18/2016 01:23:53PM Agent (Anna Wiles): “If you narrow by a jurisdiction, the results will not max out.”

But Whisner was attempting to perform a fairly comprehensive search. Note that West Search sometimes will max out at under 10,000 documents too according to the West staffer.

More evidence that in an attempt to find the Holy Grail of legal research —  the uber precise search result — West Search may have sacrificed comprehensiveness. — Joe

“For a researcher in the twenty-second century, it will seem unimaginable that someone studying the twenty-first century would do anything but draw heavily on the online world to tell them about peoples’ changing lives. Currently, however, the web remains an almost untapped source for research. This book aims to make a start in this direction,” write Niels Brugger and Ralph Schroeder in the Introduction to their compilation titled  The Web as History (UCL Press, 2017). Here’s the blurb:

The World Wide Web has now been in use for more than 20 years. From early browsers to today’s principal source of information, entertainment and much else, the Web is an integral part of our daily lives, to the extent that some people believe ‘if it’s not online, it doesn’t exist.’ While this statement is not entirely true, it is becoming increasingly accurate, and reflects the Web’s role as an indispensable treasure trove. It is curious, therefore, that historians and social scientists have thus far made little use of the Web to investigate historical patterns of culture and society, despite making good use of letters, novels, newspapers, radio and television programmes, and other pre-digital artefacts.

This volume argues that now is the time to question what we have learnt from the Web so far. The 12 chapters explore this topic from a number of interdisciplinary angles – through histories of national web spaces and case studies of different government and media domains – as well as an introduction that provides an overview of this exciting new area of research.

An open access PDF version of the book is available here. Recommended. — Joe

10,000 documents is an awful lot. Truly a low precision, high recall search. But sometimes, one starts off searching very broadly because Westlaw and Lexis Advance provide a “search within results” option to narrow down initial search output. While I do not perform many broad searches in Westlaw, I have never once seen a figure higher than 10,000 documents in my search results. I have, however, seen “10,000+” documents in equally broad Lexis Advance searches on the same topic.  Unfortunately 10,000 documents appears to be a search results limit in Westlaw.

If an initial search pulls up 10,000 documents in Westlaw, there is no reason to believe all Westlaw documents identified by one’s search are really all the potentially relevant documents in the Westlaw database. Searching within the initial 10,000 documents search results would be, therefore, based on a seriously flawed subset of the Westlaw database, one defined by West Search, not one’s search logic. This is not the case in Lexis Advance where a broad search may yield 10,000+ documents for searching within initial results. If this is indeed a flaw in West Search’s output, one must conclude that Lexis Advance offers more comprehensive searching of its database than Westlaw. — Joe

“The idea for the Gorsuch Project was born after law librarians from several universities and government offices faced a similar question from their patrons: ‘Find as much information about the new Supreme Court nominee as possible.'” — From the Gorsuch Project.

The Gorsuch project “is the result of the collaborative efforts of several libraries to research and collect a comprehensive set of materials relating to the Hon. Neil Gorsuch’s career on the 10th Circuit Court of Appeals. Majority opinions, dissents, and concurrences authored or joined by Gorsuch and references to his published work and speeches are presented here.” The academic law libraries involved are located at the Univ. of Illinois College of Law, the Univ. of Richmond School of Law, the Univ. of Virginia School of Law (host site of the Project), plus the Free Law Project and the US Railroad Retirement Board contributed to the project.

See also Neil M. Gorsuch a Law Library of Congress bibliography that was last updated February 2, 2017.

H/T to Michel-Adrien Sheppard’s Slaw post. — Joe

I hope not. See BNA’s Scott Mozarsky (President of Bloomberg Law and Bloomberg BNA’s Legal Division) ATL post, Large Law’s Not-So-Secret Weapon In Marketing And BD: The Library. (Observing that he only knows of four of the 50 largest firms where the law library reports to the chief marketing officer.)  See also Greg Lambert’s response to Mozarsky’s post at Who Leads the Law Library? How About Law Librarians? — Joe

Keith Lee identifies recent court opinions that cite (or reject) Wikipedia as an authority on Associate’s Mind. He writes:

Every Circuit has judicial opinions that cite Wikipedia as a reliable source for general knowledge. Who Ludacris is. Explaining Confidence Intervals. But some courts within the same Circuit will be dismissive of Wikipedia as a source of general information. There is no definitive answer. Judges seem to make determinations about Wikipedia’s reliability on a case-by-case basis. If you want to cite Wikipedia in a brief and not have a judge be dismissive of it, it’s probably worth your time running a quick search to see where the judge stands on the topic.

Hat tip to PinHawk’s Librarian News Digest on the PinHawk Blog. — Joe

Here’s the abstract to Accountable Algorithms, 165 University of Pennsylvania Law Review ___ 2017 (Forthcoming). This very interesting article was written by Joshua Kroll, Joanna Huey, Solon Barocas, Edward Felten, Joel Reidenberg, David Robinson and Harlan Yu.

Abstract:

Many important decisions historically made by people are now made by computers. Algorithms count votes, approve loan and credit card applications, target citizens or neighborhoods for police scrutiny, select taxpayers for an IRS audit, and grant or deny immigration visas.

The accountability mechanisms and legal standards that govern such decision processes have not kept pace with technology. The tools currently available to policymakers, legislators, and courts were developed to oversee human decision-makers and often fail when applied to computers instead: for example, how do you judge the intent of a piece of software? Additional approaches are needed to make automated decision systems — with their potentially incorrect, unjustified or unfair results — accountable and governable. This Article reveals a new technological toolkit to verify that automated decisions comply with key standards of legal fairness.

We challenge the dominant position in the legal literature that transparency will solve these problems. Disclosure of source code is often neither necessary (because of alternative techniques from computer science) nor sufficient (because of the complexity of code) to demonstrate the fairness of a process. Furthermore, transparency may be undesirable, such as when it permits tax cheats or terrorists to game the systems determining audits or security screening.

The central issue is how to assure the interests of citizens, and society as a whole, in making these processes more accountable. This Article argues that technology is creating new opportunities — more subtle and flexible than total transparency — to design decision-making algorithms so that they better align with legal and policy objectives. Doing so will improve not only the current governance of algorithms, but also — in certain cases — the governance of decision-making in general. The implicit (or explicit) biases of human decision-makers can be difficult to find and root out, but we can peer into the “brain” of an algorithm: computational processes and purpose specifications can be declared prior to use and verified afterwards.

The technological tools introduced in this Article apply widely. They can be used in designing decision-making processes from both the private and public sectors, and they can be tailored to verify different characteristics as desired by decision-makers, regulators, or the public. By forcing a more careful consideration of the effects of decision rules, they also engender policy discussions and closer looks at legal standards. As such, these tools have far-reaching implications throughout law and society.

Part I of this Article provides an accessible and concise introduction to foundational computer science concepts that can be used to verify and demonstrate compliance with key standards of legal fairness for automated decisions without revealing key attributes of the decision or the process by which the decision was reached. Part II then describes how these techniques can assure that decisions are made with the key governance attribute of procedural regularity, meaning that decisions are made under an announced set of rules consistently applied in each case. We demonstrate how this approach could be used to redesign and resolve issues with the State Department’s diversity visa lottery. In Part III, we go further and explore how other computational techniques can assure that automated decisions preserve fidelity to substantive legal and policy choices. We show how these tools may be used to assure that certain kinds of unjust discrimination are avoided and that automated decision processes behave in ways that comport with the social or legal standards that govern the decision. We also show how algorithmic decision-making may even complicate existing doctrines of disparate treatment and disparate impact, and we discuss some recent computer science work on detecting and removing discrimination in algorithms, especially in the context of big data and machine learning. And lastly in Part IV, we propose an agenda to further synergistic collaboration between computer science, law and policy to advance the design of automated decision processes for accountability.

Recommended. — Joe

Catherine A. Tremble attempts to answer that question in her forthcoming Fordham Law Review note, Wild Westworld: The Application of Section 230 of the Communications Decency Act to Social Networks’ Use of Machine-Learning Algorithms.

Here’s the abstract:

On August 10th, 2016, a complaint filed in the Eastern District of New York formally accused Facebook of aiding the execution of terrorist attacks. The complaint depicted user-generated posts and groups promoting and directing the incitement of terrorist activities. Under section 230 of the Communications Decency Act (CDA), Interactive Service Providers (ISPs), such as Facebook, cannot be held liable for user-generated content where the ISP did not create or develop the information. However, this case stands out because it seeks to hold Facebook liable not only for the content of third parties, but also for the effect its personalized machine-learning algorithms — or “services” — have had on the ability of terrorists to orchestrate and execute attacks. By alleging that Facebook’s conduct goes beyond the mere act of publication, and includes the actual services’ effect on terrorists’ abilities to more effectively execute attacks, the complaint seeks to prevent the court from granting section 230 immunity to Facebook.

This Note argues that Facebook’s services — specifically the personalization of social media pages through the use of machine-learning algorithms — constitute the “development” of content and as such do not qualify for immunity under section 230 of the CDA. Recognizing the challenge of applying a static statute to a shifting technological landscape, this Note analyzes recent jurisprudential evolutions in section 230 doctrine to revise the original analytical framework applied in early cases. This Framework is guided by congressional and public policy goals but evolves to demonstrate awareness of technological evolution and ability. It specifically tailors section 230 immunity to account for behavioral data mined for ISP use, and the effect the use of that data has on users — two issues that courts have yet to confront. This Note concludes that, under the updated section 230 framework, personalized machine-learning algorithms made effective through the collection of individualized behavioral data make ISPs co-developers of content and as such bar them from section 230 immunity.

— Joe