From the blurb for Tom Wheeler, From Gutenberg to Google: The History of Our Future (Brookings Institution, 2019):

In this fascinating book, former FCC chairman Tom Wheeler brings to life the two great network revolutions of the past and uses them to help put in perspective the confusion, uncertainty, and even excitement most people face today. The first big network revolution was the invention of movable-type printing in the fifteenth century. This book, its millions of predecessors, and even such broad trends as the Reformation, the Renaissance, and the multiple scientific revolutions of the past 500 years would not have been possible without that one invention. The second revolution came with the invention of the telegraph early in the nineteenth century. Never before had people been able to communicate over long distances faster than a horse could travel. Along with the development of the world’s first high-speed network—the railroad—the telegraph upended centuries of stability and literally redrew the map of the world.

Wheeler puts these past revolutions into the perspective of today, when rapid-fire changes in networking are upending the nature of work, personal privacy, education, the media, and nearly every other aspect of modern life. But he doesn’t leave it there. Outlining “What’s Next,” he describes how artificial intelligence, virtual reality, blockchain, and the need for cybersecurity are laying the foundation for a third network revolution.

From the abstract for Jane Manners, Congress and the Problem of Legislative Discretion, 1790-1870 (2018):

Histories of the nineteenth-century United States often describe a stark divide between law and politics, with law as the agent of the propertied few and politics as the weapon of the masses. As representatives of America’s growing electorate fought to reapportion wealth, these accounts go, lawyers and judges waged a counteroffensive through the courts, using the rule of law to strike down statutes and stave off redistributive change. This dissertation challenges that narrative by examining the legislative logic of Congress during the first century of its existence: a logic, it argues, that increasingly relied on notions that we typically associate with private law, such as precedent, principle, and doctrines of vested rights. Members of Congress turned to these concepts not for the reasons that modern-day political scientists attribute to legislative actors, such as electoral considerations and political pressure (or at least, not only for such reasons), but rather out of a deeply-rooted anxiety about the exercise of their own power and an uncertainty as to what, in America’s decades-old experiment in representative democracy made legislation legitimate. Focusing on two case studies – one examining Congress’s response to the Great New York Fire of 1835 and the other investigating the legislative theory of the radical Republican senator Charles Sumner – this dissertation uses techniques and sources typically identified with the law side of the law/politics divide to make a novel claim: that Congress’s increasing reliance on the ideas and practices of ‘private’ law led its members gradually to limit their own discretion, constricting their ability to legislate for the public good in the process.

From Paul Godek, Determining States’ A Priori Preferences for the Electoral College: 1788 – 2016 (2017):

Here I review some of the basic institutional elements and empirical regularities of the U.S. electoral college. Historical election results confirm the expected dominance of the winner-take-all allocation of electors. Of greater interest is the array of state preferences for the electoral college, given a national-popular-vote as the contemplated alternative. The analysis demonstrates that well over half of the states, the smaller-population ones, prefer the electoral college. Indeed, the inverse relationship between state size and electoral-college preference, as well as the majority-of-states preference for the system, have existed throughout the entire history of U.S. presidential elections. Those characteristics are certain to persist for the foreseeable future.

Here’s the abstract for Jason Mazzone’s Subprecedents (May 22, 2018):

Everyone had heard of super-precedents: cases that have very strong precedential value and so are thought immune to overruling. Subprecedents deserve equal attention. Subprecedents are those cases that, by design or effect, have only very weak precedential significance. In contrast to their more demanding super-precedent cousins, subprecedents do not claim to constrain future judicial decision-making and thus invite being ignored. Yet subprecedents play important, frequently unnoticed, and often surprising roles in a legal system that values stare decisis. This essay, prepared for a symposium on Randy Kozel’s book, Settled Versus Right: A Theory of Precedent (2017), presents the case for paying greater attention, as we seek to make sense of the rules and operations of stare decisis, to the nature and contributions of subprecedents. The essay identifies seven different kinds of subprecedents with different characteristics and functions and it explores the roles they each play in our legal system. Despite their seemingly modest nature, subprecedents, it turns out, shape opportunities to seek and obtain legal remedies, facilitate and constrain judicial decision-making, and, ultimately, guide the direction of the law. Subprecedents, in their own quiet way, play powerful roles. They need to be understood and reckoned with.

— Joe

Here’s the abstract for Andrew McCanse Wright’s Justice Department Independence and White House Control (February 18, 2018):

Problematic relations between the White House and the U.S. Department of Justice stand out amidst the broader tumult of President Donald Trump’s first year in office. With respect to written policy restricting contacts between the White House staff and the Department, the Trump White House has followed the general contours of predecessor administrations. Those policies recognize that White House contacts restrictions vary with the Department’s complex functions, restrict channels of contact, and restrict personnel authorized to make contacts. They also grant limited exceptions where White House-Department contact is required to assist the President in the performance of a constitutional duty and contact would be appropriate from a law enforcement perspective. A number of episodes, however, suggest that the President and senior administration officials have not honored the spirit, and in some cases the letter, of that contacts policy.

One of the frequent criticisms leveled against President Trump is that he disregards many norms and traditions that have been observed by presidential administrations of both parties for decades. Restrictions on White House interference in criminal investigations do not merely protect norms. Rather, those policies also seek to prevent unconstitutional conduct by the President and his political appointees. This Article demonstrates that political interference by the President undertaken in bad faith could violate the Take Care Clause even in the absence of a criminal statute. Obstructive behavior is even worse. Whether or not the President is indictable for the commission of a statutory criminal offense of obstruction of justice during his tenure in office, this Article explains why the President may violate the Take Care Clause independently of criminal offenses.

A principle of political noninterference by the White House in the federal prosecution function in particular matters is consistent with Article II. Neither the Vesting Clause, the President’s position atop the Executive Branch, nor the President’s broader enforcement discretion defeat the anti-interference principles commanded by the Presidential Oath and the Take Care Clause. It is a question that goes to the very concept of Rule of Law itself. However, political processes, rather than justiciable legal proceedings, serve as the presumptive source of Take Care Clause enforcement as to White House-Department relations.

See also LLB’s Intra-branch checks and balances: Presidential control of the DOJ (March 6, 2018). — Joe

From the press release: “The Department of Justice today issued a memo on federal marijuana enforcement policy announcing a return to the rule of law and the rescission of previous guidance documents.” Here’s the text of AG Sessions’ Jan. 4, 2017 marijuana enforcement memorandum to all U.S. attorneys.

For commentary and analysis of this development, see this Marijuana Law, Policy & Reform post by OSU Law Prof Douglas Berman. — Joe

From the CRS report, Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2017 (Nov. 9, 2017 R40879):

A resolution of inquiry is a simple resolution making a direct request or demand of the President or the head of an executive department to furnish the House with specific factual information in the Administration’s possession. Under the rules and precedents of the House of Representatives, such resolutions, if properly drafted, are given a privileged parliamentary status. This means that, under certain circumstances, a resolution of inquiry can be brought to the House floor for consideration even if the committee to which it was referred has not reported it and the majority party leadership has not scheduled it for action.

Although Representatives of both political parties have utilized resolutions of inquiry, in recent Congresses, such resolutions have overwhelmingly become a tool of the minority party in the House. This development has led some to question whether resolutions of inquiry are being used primarily for partisan gain or are unduly increasing the workload of certain House committees. Others have attributed the increase to a frustration among minority party Members over their inability to readily obtain information from the executive branch.

Available data suggest that 28% of the time, a resolution of inquiry has resulted in the production of information to the House. In half of the cases examined here, however, it is simply unknown, unclear, or in dispute whether the resolution of inquiry produced any of the requested information, a fact which might suggest the need for additional investigation of the efficacy of this parliamentary oversight tool by policymakers.

— Joe

From the abstract of Artificial Intelligence’s Fair Use Crisis by Benjamin L. W. Sobel:

As automation supplants more forms of labor, creative expression still seems like a distinctly human enterprise. This may someday change: by ingesting works of authorship as “training data,” computer programs can teach themselves to write natural prose, compose music, and generate movies. Machine learning is an artificial intelligence (AI) technology with immense potential and a commensurate appetite for copyrighted works. In the United States, the copyright law mechanism most likely to facilitate machine learning’s uses of protected data is the fair use doctrine. However, current fair use doctrine threatens either to derail the progress of machine learning or to disenfranchise the human creators whose work makes it possible.

This Article addresses the problem in three parts: using popular machine learning datasets and research as case studies, Part I describes how programs “learn” from corpora of copyrighted works and catalogs the legal risks of this practice. It concludes that fair use may not protect expressive machine learning applications, including the burgeoning field of natural language generation. Part II explains that applying today’s fair use doctrine to expressive machine learning will yield one of two undesirable outcomes: if US courts reject the fair use defense for machine learning, valuable innovation may move to another jurisdiction or halt entirely; alternatively, if courts find the technology to be fair use, sophisticated software may divert rightful earnings from the authors of input data. This dilemma shows that fair use may no longer serve its historical purpose. Traditionally, fair use is understood to benefit the public by fostering expressive activity. Today, the doctrine increasingly serves the economic interests of powerful firms at the expense of disempowered individual rightsholders. Finally, in Part III, this Article contemplates changes in doctrine and policy that could address these problems. It concludes that the United States’ interest in avoiding both prongs of AI’s fair use dilemma offers a novel justification for redistributive measures that could promote social equity alongside technological progress.

— Joe

It has come to my attention that the Department has in the past published guidance documents- or similar instruments of future effect by other names, such as letters to regulated entities- that effectively bind private parties without undergoing the rulemaking process.

The Department will no longer engage in this practice. Effective immediately, Department components may not issue guidance documents that purport to create rights or obligations binding on persons or entiti es outside the Executive Branch (including state, local, and tribal governments). — Jeff Sessions, Attorney General of the United States, Nov. 16, 2017 Memorandum

The DOJ has announced that it will no longer issue guidance on the federal laws it enforces and that it will review existing guidance to identify those that should be rescinded. Lawfare’s Eve Hill writes:

The memorandum is couched in terms of eliminating guidance that circumvents the rulemaking process by imposing new binding obligations on covered entities without notice-and-comment rulemaking. But the instructions of the memorandum go much further – they forbid the Department from using “shall,” “must,” “required,” or “requirement” and require the Department to state that all guidance is non-binding. This effectively muzzles the experts on federal law from explaining how the law applies in specific contexts. It threatens to leave covered entities in the dark when, in good faith, they apply the law to new situations they face on the ground.

— Joe

Here’s the text of Flynn’s plea agreement with the Special Counsel. From The Flynn Plea: A Quick and Dirty Analysis by Susan Hennessey, Matthew Kahn, Vanessa Sauter, Shannon Togawa Mercer and Benjamin Wittes, Lawfare Dec. 1, 2017:

The surprising thing about the plea agreement and the stipulated facts underlying it is how narrow they are. There’s no whiff of the alleged Fethullah Gulen kidnapping talks. Flynn has escaped FARA and influence-peddling charges. And he has been allowed to plead to a single count of lying to the FBI. The factual stipulation is also narrow. It involves lies to the FBI on two broad matters and lies on Flynn’s belated FARA filings on another issue. If a tenth of the allegations against Flynn are true and provable, he has gotten a very good deal from Mueller.

— Joe

Yesterday, President Trump modified prior proclamations for the Grand Staircase-Escalante National Monument [text] and the Bears Ears National Monument [text] that significantly reduce the size of each monument. Already, one complaint for injunctive and declaratory relief has been filed by environment groups including The Wilderness Society and the Sierra Club. From the filing:

President Trump’s unlawful reversal of Grand Staircase-Escalante’s full protective reach exceeds his authority under the Antiquities Act. The Act authorizes Presidents to create national monuments; it does not authorize Presidents to abolish them either in whole or in part, as President Trump’s action attempts to do.

President Trump’s action even purports to overturn congressional legislation that added lands to the monument.

Accordingly, the President’s decision exceeds his authority under the Antiquities Act, violates the separation of powers between Congress and the President and the “take Care” clause of the U.S. Constitution, and is therefore unlawful.

— Joe

Since 2007, the biennial Salary Survey has reported on AALL membership by market sectors: Law Firm/Corporate, Government and Law School. The table, above, details non-AALL membership as a percent of the professional workforce as reported in the last six biennial salary surveys. The percent of non-AALL members in the law firm/corporate legal sector workforce increased 19% in 2017 compared to 2015 and has increased 56% since 2007. Note that the percent of the professional workforce in the law firm/corporate law sector who are not AALL members has steadily increased during the past ten years. No similar increase is manifest in the government and academic sectors.

Why?

Time to mount an AALL membership outreach campaign targeting non-traditional legal information professionals in law firms and corporate legal departments? — Joe

Congressman Steve Cohen (D-TN-09), the ranking member of the House Judiciary Subcommittee on the Constitution and Civil Justice, which has jurisdiction over impeachment matters, and four Democratic colleagues, introduced five articles of impeachment against President Donald J. Trump yesterday. The five articles are:

  • Article I – Obstruction of Justice
  • Article II – Violation of Article I, Section 9 of the U.S. Constitution – Foreign Emoluments
  • Article III – Violation of Article II, Section 1 of the U.S. Constitution – Domestic Emoluments
  • Article IV – Undermining the Independence of the Federal Judiciary and the Rule of Law
  • Article V – Undermining Freedom of the Press

Documentation:

End Note: LLB post on first articles of impeachment. — Joe