Category Archives: Current Affairs

The Trump administration and the rule of law: Legal and ethical guidance for government lawyers

From the abstract of Cornell law prof W. Bradley Wendel’s Government Lawyers in the Trump Administration:

The words and actions of candidate, President-Elect, and now President Donald Trump indicate that this Administration will aggressively seek to use state power with little regard for the rule of law. A great deal has been written about the constitutional and administrative law regulating inter- and intra-branch separation of powers. However, there is no comprehensive legal and theoretical analysis of government lawyers as lawyers, subject to regulation by state rules of professional conduct and other positive legal standards. This Article engages with numerous contested issues in the law of lawyering to provide a constructive legal and ethical conception of government legal advisors. In practical terms, it may serve as a source of guidance for lawyers in the new administration, or as a roadmap for discipline by lawyer regulators. More theoretically, it defends a conception of the rule of law as a practice of reason-giving, not dependent upon legal objectivity or determinacy.

— Joe

The Trump Bubble? Tracking Trump’s impact on your investments

From the Sentieo Blog’s post titled Introducing the Sentieo Trump Tracker: Follow The President’s Impact on Your Investments: “Today, we are excited to introduce the [Sentieo] Trump Tracker. It’s a bot that constantly scans new public financial documents for mentions of President Trump. These documents include all SEC filings, conference call transcripts, investor presentations, press releases, and more. The bot instantly surfaces new mentions of Trump as soon as they’re published, while intelligent queries automatically sort them into topics like Obamacare, Mexico, and NAFTA. … Anyone interested in following the administration’s impact on public companies can engage with the Trump Tracker by checking the dedicated website, following the @trumptrackerbot Twitter account, or signing up for a daily email alert on the site.” Will we call the stock market’s recent performance the “Trump Bubble”?

On a related note, Sentieo recently analyzed over 9 million financial documents of 35,000+ companies globally for mentions of Trump and Obama during their respective campaigns. Details here. — Joe

Ensuring President Trump “shall take care that the Laws be faithfully executed:” There’s a blog for that

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

Does Trump risk violating the Foreign Emoluments clause through his interests in the Trump Organization?

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

SCOTUS vacates and remands decision on IDEA educational standards by SCOTUS nominee during Senate confirmation hearings

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

Can Congress inspect income tax returns without the taxpayer’s consent?

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

After yesterday’s news, it might be time to bone up on the impeachment process (again)

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

Gorsuch confirmation hearings gear up: “Find as much information about the new Supreme Court nominee as possible.”

“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

Advice on how to respond to a Trump Twitter attack by Cleary Gottlieb

Cleary Gottlieb has issued a brief memo on how clients should respond to a social media attack. The memo clearly focuses on a Trump Twitter attack. “The advice,” writes Villanova law prof Louis J. Sirico, Jr. on Legal Skills Prof Blog, “is very lawyer-like—full or pros and cons, very thoughtful, very measured.” And very interesting. — Joe

We’re worth it, really we are!

In an earlier post I asked “since AALL is not changing its name, why does our association need to rebrand?” Perhaps I should have asked “since AALL’s The Economic Value of Law Libraries report failed to quantify in economic terms the ROI of law libraries, why does our association need to rebrand?” The latter question is more to the point than the former because the 2015 report is one of the drivers behind the rebranding initiative. Since the naming debacle, it’s best to view AALL’s rebranding project from that vantage point. You read that report, right? See Jean O’Grady’s review, AALL Releases “The Economic Value of Law Libraries” Report– Long on Rubrics– Short on ROI. She writes:

The bottom line is that AALL and HBR have produced a report that says ‘we couldn’t figure out how to measure your value – we hope you have better luck on your own.’ […] Of course we will all continue to try to hone our own metrics but we expected a report that reached well beyond what we are able to do as individuals. We expected AALL and HBR to do some heavy lifting and instead they have passed the problem back to the members.

With the value problem back in members’ laps, rebranding AALL is moving forward because it is “member driven” according to the February 23rd virtual town hall meeting conducted by AALL’s three presidents, past, present and future. Members, apparently, have asked our association to help us communicate our worth to our employers even though we don’t know how to calculate our economic value in these dollars and cents times. We are not going to preserve our budgets simply by saying “we’re worth it, really we are”. Yet that’s the sort of marketing pablum we are going to get from the rebranding project.

Perhaps we need to redo our homework. By that I mean, redo the ROI report. Why? Because it is doable! Because we are way behind the curve on this one. Our law librarian colleagues down under quantified Australian special libraries’ ROI in 2014. They found that “special libraries have been found to return $5.43 for every $1 invested — and that’s a conservative estimate of their real contribution.” Quoting from Putting a Value on ‘Priceless’ at 3. I’m reluctant to say just use the Aussies’ average benefit cost ratio because their survey covered all sorts of special libraries, not just law libraries.

We’re left with this: for $185,000 AALL will get “messaging” (read marketing pablum), a branding manual, a website refresh, a new logo and a tag line. I’m thinking the tag line should be “We’re worth it, really we are!” – Joe

End Note: Putting a Value on ‘Priceless’ (2014) (h/t to Jean O’Grady) and the Financial Times-SLA report, The Evolving Value of Information Management (2013) are far more informative reads than AALL’s The Economic Value of Law Libraries (2015).

Since AALL is not changing its name why does our association need to rebrand?

Odd isn’t it that there were no dissenting votes on renaming AALL at the Executive Board level. Considering how the vote turned out, one would think there might be some representation of rank-and-file interests on the Executive Board (read some opposition to the proposal). My hunch is that some officers were not initially in favor of the name change but were persuaded by something – the merits of the case, peer pressure, etc. – to vote for the renaming. So the question remains — Whose interests does the Board represent?

AALL remains “top-down,” not “bottom-up” in the handling of association affairs. Sometimes that can’t be helped. Sometimes it can. In the case of the renaming proposition, I think the Board heard loud and clear that members wanted more direct participation before the Board takes any action whatsoever. Will that lesson be institutionalized in the Board-Membership relationship?

What about the rebranding initiative (with its $185,000 price tag)? It sounds like rebranding is moving forward but is rebranding needed now that AALL is not changing its name? I, for one, think rebranding was only necessary if AALL’s name changed; it doesn’t seem necessary after the renaming debacle.

To the best of my knowledge, the rank and file will not vote on whether or not rebranding should proceed. But there is an opportunity for members to express their opinion about rebranding, including the desirability of moving forward. AALL has scheduled a virtual town hall for Tuesday, February 23, from 2:00-3:00 p.m. (CST) “to provide time for further discussion and to answer any questions you may have.” First question: Since our association is not changing its name, why does AALL need to rebrand? — Joe

How relevant are our current professions in the 21st century?

In The Future of the Professions: How Technology Will Transform the Work of Human Experts (Oxford UP, 2016), Richard Susskind and Daniel Susskind predict that our Internet-based society will have little need for teachers, accountants, architects, lawyers, and many other professions (librarians?), who continue to work as they did in the 20th century. The book describes the people and systems that will replace them. From the book’s blurb:

The authors challenge the ‘grand bargain’ — the arrangement that grants various monopolies to today’s professionals. They argue that our current professions are antiquated, opaque and no longer affordable, and that the expertise of their best is enjoyed only by a few. In their place, they propose six new models for producing and distributing expertise in society.

Some food for thought after AALL’s name change debacle. Recommended. — Joe

LexPredict on SCOTUS cases that will be affected by Justice Scalia’s death

“LexPredict has developed an algorithm, {MARSHALL}+, that the company says can accurately predict Supreme Court cases. Using their algorithm, they’ve come up with predictions on which cases will be affected [by Justice Scalia’s death]” writes Bob Ambrogi. According to LexPredict, there are 14 cases whose decisions are likely to be impacted. “These changes will result in either reverse to affirm or vice versa switches, or by changing the opinions from precedential to non-precedential.” Details here. — Joe

End Note: On a related note, SCOTUSblog’s Amy Howe examines whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. Read more about it. See also Lyle Denniston’s Is a recess appointment to the Court an option?, also on SCOTUSblog.

Mission minded or mission impossible: Is AALL ready for ALI?

It’s almost time to vote on the Executive Board’s unanimous recommendation that our association change its name to the Association for Legal Information (or “ally,” not “A”, “L”, “I”). But it is going to take more than mere rebranding (with its $185,000 price tag) to transform AALL into a vital organization for legal information consumers today and into the future. I wonder if we are up to the task of creating a new normal for providing leadership in the field of legal information and information policy.

Will we see a membership drive that reaches out to legal information professionals who work outside of the law library if the name change proposal is accepted by the rank-and-file? Of course, it is hard for many law librarians to justify paying AALL dues. Will non-law librarians working in the legal information field find the cost worth it to join under the big tent to be known as ALI? Non-traditional legal information professionals have been able to join AALL with full membership privileges for a couple of years now with no perceptible growth in membership rolls. While AALL doesn’t need money from new dues-paying members, our association does need to grow a non-traditional legal information membership base to change the negative connotations associated with “libraries” and “librarians.” If we change our name without also expanding our membership base, we will not be able to promote the value of all legal information professionals in any substantive way.

Will we see the rationale for this name change begin being realized with something other than the same old programming typical of most of our previous annual meetings? Hell if I know if AALL is prepared to “make it new.” I doubt an annual meeting programming initiative will happen without an influx of new, non-traditional members who, like the rest of us, are tasked with the professional mission of putting content in context. If we change our name without acquiring experts in the fields of knowledge management, competitive intelligence, legal analytics, search engine engineering and artificial intelligence as ALI members, we will have lost an opportunity to foster the development of the legal information profession.

Will we see a major revision of AALL’s bylaws? To give this rebranding effort teeth to take a bite out of negative, limiting, narrow perceptions about “libraries” and “librarians,” constitutional reform of AALL is needed. That reform, in my opinion, ought not to be put off. A case can be made that the Executive Board’s rebranding initiative should have been postponed until substantive bylaw reforms are made and voted on by the membership. If we change our name without restructuring our association, we will be in no better position to serve a leadership role than we were during the Great Recession; our association needs more than a name change to respond to the forces of change being thrust upon legal information professionals and their employers in the 21st century.

What we do see so far is that AALL has done a good communications job. There are plenty of resources available to members to read more about the proposed name change, including:

End Note: I have no illusions about membership drives, annual meeting programming and bylaw revisions but I will be voting in favor of the name change because of the opportunities it presents. I have not seen an argument opposed to the name change written in the blogosphere but an excellent post in favor can be found here. Voting opens Tuesday, January 12th, and results will be announced on February 11th. – Joe

It’s Halloween

We’re celebrating Halloween at our library.  I’m sure others are as well.  Feel free to share pictures of Halloween at your library.  I’ll post the best of them all through next week on the Blog.  Send pictures or a link to their location to me at mgiangr@gmail.com.  I’ll be in costume tomorrow at DePaul as Jake the Dog from Adventure Time.  Yes, I’ll post that picture.

Mark

Most Valuable Brand List Released

Interbrand released its annual survey of the top 100 of the most valuable brands.  Apple and Google hold the number 1 and 2 spots respectively.  Barnes & Noble is nowhere to be found, but Amazon comes in at number 10.  Lego broke into the list for the first time at number 82 (Ninja Go!!!!).  Facebook is listed as a top rise are number 23.  I guess having 1 billion users helps with brand awareness.  My old friend Jack Daniels makes the list at number 84.  Thomson Reuters comes in at number 63, though that represents a drop of 12% in brand value.  There must be some people out there still pining for Westlaw Classic I imagine.

Mark

Pew Survey Asserts Vitality of Public Libraries

I’ve written before on the supposed death of libraries and print due to the creation of the Internet.  The thinking goes that if someone can do something on their own that is a service normally provided by a librarian or library, that person would opt for self-service.  The fallacy in that thinking is that everyone has the same skill sets, needs, and access to the same materials.  Does everyone live on the Internet these days?  Does everyone have a tablet and/or smartphone?  Maybe, maybe not.

At the same time, not all of these devices, even with cloud support, are appropriate for all tasks.  I hate typing on a smartphone screen because the on-screen keyboards are so small.  I keep making corrections more than half my time even with word suggestion.  I would opt for a desktop or a large screen laptop with a real keyboard if I had to do some serious Westlaw or Lexis research.  But that’s me, one of the six billion people in the world without a Facebook account, or an account on Twitter or LinkedIn.

So how do people view libraries against 20 plus years of the Internet and increasingly more and more sophisticated technology?   The Pew Research Center released the results of a survey yesterday that addressed this topic.  It’s called Libraries at the Crossroads.  The subtitle is telling:  The public is interested in new services and thinks libraries are important to communities.  The survey results indicate that while some uses of the library are down by small amounts compared to the last survey, libraries are an important public resource to a lot of people.

Individuals used a public library to access the Internet, look for jobs, look for information to upgrade their skills, and as a source to learn about new technologies.  There is also a social component where the library is used as a meeting and teaching center.  “Additionally, two-thirds of Americans (65%) ages 16 and older say that closing their local public library would have a major impact on their community. Low-income Americans, Hispanics and African Americans are more likely than others to say that a library closing would impact their lives and communities.”

American Library Association (ALA) President Sari Feldman released the following statement regarding the survey’s findings:

 “Public libraries are transforming beyond their traditional roles and providing more opportunities for community engagement and new services that connect closely with patrons’ needs,” said Feldman. “Today’s study shows that public libraries are far from being  just ‘nice to have,’ but serve as a lifeline for their users, as the survey shows more than 65 percent of those surveyed felt that closing their local public library would have a major impact on their community.

“Libraries are not just about what we have for people, but what we do for and with people. Today’s survey found that three-quarters of the public say libraries have been effective at helping people learn how to use new technologies.  This is buttressed by the ALA’s Digital Inclusion Survey, which finds that virtually all libraries provide free public access to computers and the Internet, wi-fi, technology training and robust digital content that supports education, employment, e-government access and more.

“Although the report affirms the value of public libraries, the ALA recognizes the need for greater public awareness of the transformation of library services, as the report shows library visits over the past three years have slightly decreased.  In response, libraries of all types are preparing for the launch of a national public awareness campaign entitled ‘Libraries Transform.’

“Libraries from across the county will participate in the campaign and will work to change the perception that ‘libraries are just quiet places to do research, find a book, and read’ to ‘libraries are centers of their communities: places to learn, create and share, with the help of library staff and the resources they provide.

 “This is an exciting time for libraries, as institutions transform to meet the digital and print needs of their users, and to continue to fulfill their role in leveling the playing field for all who seek information and access to technologies.”

For those who can work without libraries, feel free.  Just don’t denigrate the services libraries provide as anachronistic.  A lot of people like libraries and the help librarians provide.  That’s not going away no matter how many devices one owns.

Mark

Georgia Sues Public.Resource.org Over Copyright In Published Annotations to the Georgia Code

The State of Georgia is suing Public.Resources .Org, Inc. and Carl Malamud in federal court for posting copies of the Official George Code Annotated on the Public.Resources.Org.  Georgia contracts with Lexis to create annotated copies of the Code where Lexis fills in the annotated material in what appears to be a work for hire as Georgia claims copyright in the annotations and value-added materials.  In some respects, it explains why Lexis wasn’t a co-plaintiff.  The State does not claim copyright in the text of the Code itself.  The complaint is seeking injunctive relief and requesting that all scanned copies be removed and destroyed, and yes, attorney fees.

I think it would have been much easier for the State of Georgia if copyright remained with Lexis.  The ownership would have been clearer.  It’s a murky situation otherwise.  I guess the question the Court is whether the State can actually claim a copyright in this case.  The United States government, as an example, disclaims copyright in most cases, but there are exceptions.  Two of these indicated at USA.gov are:

  • Works prepared for the U.S. government by independent contractors may be protected by copyright, which may be owned by the independent contractor or by the U.S. government.
  • The U.S. government work designation does not apply to works of U.S. state and local governments. Works of state and local governments may be protected by copyright.

The complaint his available through a link with a story at The Register, which is a U.K. based technology news site.  I’m a big fan of the site due to the somewhat snarky attitude the site takes at tech news.  The story in the Register about this case notes that Georgia effectively calls Malamud a “terrorist.”  Here are the excerpts from the complaint where Georgia makes that claim:

20.  On information and belief, Defendant is employing a deliberate strategy of copying and posting large document archives such as the O.C.G.A. (including the Copyrighted Annotations) in order to force the State of Georgia to provide the O.C.G.A., in an electronic format acceptable to Defendant. Defendant’s founder and president, Carl Malamud, has indicated that this type of strategy has been a successful form of “terrorism” that he has employed in the past to force government entities to publish documents on Malamud’s terms. See Exhibit 2.

21.  Consistent with its strategy of terrorism, Defendant freely admits to the copying and distribution of massive numbers of Plaintiff’s Copyrighted Annotations on at least its https://yeswescan.org website. See Exhibit 3. Defendant also announced on the https://yeswescan.org website that it has targeted the States of Mississippi, Georgia, and Idaho and the District of Columbia for its continued, deliberate and willful copying of copyrighted portions of the annotated codes of those jurisdictions. Defendant has further posted on the https://yeswescan.org website, and delivered to Plaintiffs, a “Proclamation of Promulgation,” indicating that its deliberate and willful copying and distribution of Plaintiff’s Copyrighted Annotations would be “greatly expanded” in 2014. Defendant has further instituted public funding campaigns on a website http://www.indiegogo.com to support its continued copying and distribution of Plaintiff’s Copyrighted Annotations. Defendant has raised thousands of dollars to assist Defendant in infringing the O.C.G.A. Copyrighted Annotations.

Terrorism, seriously?  Someone explain to me how this adds to the substance of the complaint.  It’s not as if black helicopters will be circling Atlanta at the end of the trial, not over annotations at least.

Mark

Professor Responds To Media Over Inadvertent Link Stories

Earlier in April there was a report about a faculty member at Drexel University having sent a link to porn by mistake to her students when she intended to send a link to an article about brief writing.  I wrote about it here.  Professor Lisa T. McElroy has responded with an op-ed in the Washington Post.  She writes about dignity and how those who spread the news seemed more interested in tearing her down:

No one publicly questioned the dignity of the so-called journalists who wrote salacious stories, broadcast them, waited outside my office to interview my students, called my unpublished cellphone number. And no one questioned the dignity of the intended audience. Tabloid journalists ran with this story because they knew they would get page views. How would they know that? Because they know their readers and viewers — and they know that scandal, sex and shame are irresistible to those who devour their posts.

I can appreciate what she says.  In some contexts it is page views that drive the story onward because it is unusual for these kind of things to happen.  That’s the world we live in, where stuff like this sells ads and eyeballs (though not here).  Drexel has conducted a short investigation and found nothing that would result in any action.  Good for Drexel and good for her.

I still have one question that remains from my original post:  what was the article on brief writing she liked enough to want to send out?

Mark

“Well, I’m back, baby”

I think those are the words Bender uses whenever Futurama rises from the dead.  That’s its current state unless one counted the cross-over episode with The Simpsons from the current season.  So, yep, I’ll be posting again, though not necessarily every day.  Keep those press releases coming.  I have a nine month backlog I’ll be going through to see if there is anything both interesting and still relevant to post.

The legal news today is that a judge allowed a woman to serve divorce papers to her husband via Facebook.  It’s a last resort, of course, when the other party avoids service.  But just think what this could mean for future litigation.  Interesting.  Here’s the story in Time Magazine.  Here’s a version of the same story from the New York Daily News, a paper with it’s own unique “character.”

Mark