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

On November 5th, the International Consortium of Investigative Journalists (ICIJ) released The Paradise Papers. The Paradise Papers documents include nearly 7 million loan agreements, financial statements, emails, trust deeds and other paperwork over nearly 50 years from inside Appleby, a prestigious offshore law firm with offices in Bermuda and beyond. Here’s the press release and jump page to various Paradise Papers investigations. – Joe

From the abstract for Lisa Heinzerling’s The Legal Problems (So Far) of Trump’s Deregulatory Binge, Harvard Law & Policy Review, Forthcoming:

In racing to upend a wide array of final rules issued in the Obama administration, the Trump administration has violated basic principles of administrative law. In delaying or suspending rules, agencies in the Trump administration have paid little attention to their legal constraints, failed to provide legally required process before their decisions, and offered flimsy reasoning for their choices. The administration, in other words, has put on the same display of autocracy, impulsivity, and jerry-rigged reasoning that has characterized Mr. Trump’s overall approach to the presidency. Within the constraints of administrative law that apply to such regulatory decisions, however, autocracy, impulsivity, and jerry-rigging are the very kinds of urges that get agencies into legal trouble.

This article examines the legal risks posed by the decision-making style exhibited by the Trump administration so far, with a focus on the administration’s decisions delaying or suspending rules issued by the Obama administration. These early decisions are worth studying for their own sake, as they put the brakes on rules aimed at addressing a broad range of social problems. The decisions are also important for the signals they send about how administrative agencies in the Trump era will go about their business. These early actions portend legal trouble for the administration’s deregulatory push. Agencies in this administration have delayed or suspended existing rules with little attention to legal authority, process, or reason giving, and in doing so have flouted basic requirements of administrative law. The courts have already begun to push back against the administration’s deregulatory binge.

— Joe

From the blurb for Harvard Law prof Cass Sunstein’s Impeachment: A Citizen’s Guide (Harvard UP, Oct. 30, 2017):

Cass R. Sunstein provides a succinct citizen’s guide to an essential tool of self-government. He illuminates the constitutional design behind impeachment and emphasizes the people’s role in holding presidents accountable. Despite intense interest in the subject, impeachment is widely misunderstood. Sunstein identifies and corrects a number of misconceptions. For example, he shows that the Constitution, not the House of Representatives, establishes grounds for impeachment, and that the president can be impeached for abuses of power that do not violate the law. Even neglect of duty counts among the “high crimes and misdemeanors” delineated in the republic’s foundational document. Sunstein describes how impeachment helps make sense of our constitutional order, particularly the framers’ controversial decision to install an empowered executive in a nation deeply fearful of kings.

With an eye toward the past and the future, Impeachment: A Citizen’s Guide considers a host of actual and imaginable arguments for a president’s removal, explaining why some cases are easy and others hard, why some arguments for impeachment have been judicious and others not. In direct and approachable terms, it dispels the fog surrounding impeachment so that Americans of all political convictions may use their ultimate civic authority wisely.

— Joe

When Fastcase hired industry veteran Steve Errick this summer, observers knew things were going change. And they have. Fastcase has launched Full Court Press to publish law journals, legal treatises, deskbooks, forms, checklists and workflow tools. First up, RAIL: The Journal of Robotics, Artificial Intelligence & Law. For details, see Bob Ambrogi’s LawSites post. — Joe

Here’s the abstract for Signing Statements and Presidentializing Legislative History by John M. de Figueiredo and Edward H. Stiglitz (NBER Working Paper No. 23951, Oct. 2017):

Presidents often attach statements to the bills they sign into law, purporting to celebrate, construe, or object to provisions in the statute. Though long a feature of U.S. lawmaking, the President has avowedly attempted to use these signing statements as tool of strategic influence over judicial decisionmaking since the 1980s—as a way of creating “presidential legislative history” to supplement and, at times, supplant the traditional congressional legislative history conventionally used by the courts to interpret statutes. In this Article, we examine a novel dataset of judicial opinion citations to presidential signing statements to conduct the most comprehensive empirical examination of how courts have received presidential legislative history to date. Three main findings emerge from this analysis. First, contrary to the pervasive (and legitimate) fears in the literature on signing statements, courts rarely cite signing statements in their decisions. Second, in the aggregate, when courts cite signing statements, they cite them in predictably partisan ways, with judges citing Presidents’ signing statements from their own political parties more often than those of the opposing parties. This effect, however, is driven entirely by the behavior of Republican-appointed appellate jurists. Third, courts predominately employ signing statements to buttress aligned statutory text and conventional sources of legislative history, and seemingly never rely on them to override contrary plain statutory text or even unified traditional legislative history. This suggests that signing statements have low rank among interpretative tools and courts primarily use them to complement rather than substitute for congressional legislative history. In this sense, Presidents have largely failed to establish an alternative corpus of valid interpretive material.

H/T beSpacific. — Joe

Bloomberg Law announced a new research feature, Points of Law, a little over a week ago.  I’ve been playing around with it using the ATV injury problem I created for teaching online legal research concepts.  In summary, An ATV rider was injured while riding on someone else’s private property without permission.  The problem called for the researcher to identify relevant cases where assumption of risk was a viable defense and collect them for later analysis.  The jurisdiction is New York.

Let me explain a little about Points of Law before I dive into my experience with it.  Bloomberg’s press release describes the feature:

Points of Law offers a more efficient way to conduct case law research.  Through the application of machine learning to Bloomberg Law’s database of 13 million court opinions, Points of Law highlights language critical to the court’s holding, links this language to governing statements of law and relevant on-point case law.

Bloomberg Law provides context – connecting keyword search results to governing statements of law – and unparalleled breadth of coverage, generating one million Points of Law from our state and federal court opinion database.

I found the press release accurate.  I used one of the sample searches I set up for the research problem, <all-terrain vehicle and assumption of risk>.  The case law I expected to see in the list of results was there.  Some of the cases, not all, had a Points of Law icon on the right side of the text.  Clicking that highlights text that the AI in the database considers to be significant.  My search highlighted what I would describe as a combination of black letter law on a keyword related topic or significant points on how the courts treat that topic.  The focus here was on assumption of risk, obviously,  as and all-terrain vehicle is not a legal concept.

Here are some example results extracted from Marcano v. City of New York, 296 A.D.2d 43, 743 N.Y.S.2d 456 (App Div, 1st Dept 2002):

Generally, the issue of assumption of risk is a question of fact for the jury.” (Lamey v Foley, 188 AD2d 157, 163-164 .)

“The policy underlying this tort rule is intended to facilitate free and vigorous participation in athletic activities.” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657 .)  [Discussing how assumption of the risk in sports is handled by the courts. – MG]

Because of the factual nature of the inquiry, whether a danger is open and obvious is most often a jury question * * *.”

What I found most interesting about using Points of Law is how viewing multiple extracts informed me about assumption of risk without requiring a lot of lengthy analysis.  Now, not all cases in the search results were useful in my context where an ATV rider was injured.  At the same time, a researcher will find what they need to know conceptually about assumption of the risk as treated by the New York Courts.  I assume that applies to other legal doctrines as well.

Another feature worth mentioning is that clicking on the highlighted phrase will open a side window that cites other cases expressing the same point of law (up to 10).  There is also a button that shows a citation map of the Point:

Bloomberg Cite Map.

Another button shows a list of opinions that expressed related concepts along with the Point text:

Bloomberg Related Points of Law

All in all, I think this is a nifty feature that researchers and litigators will actually use.  I wonder if it will integrate with any of the current general search products on the market, as in “Hey Google, find me cases in New York State that discuss assumption of risk in the context of recreational activities.”  If we now think that first year law students take the lazy route in legal research based on their Google use, just wait for the future to show up.

In the Not Everything is Perfect category, one case, Bierach v. Nichols, 248 A.D.2d 916, 669 N.Y.S.2d 988 (App Div, 3d Dept 1998), had one Point of Law listed but not highlighted in the text.  It was short enough that I was able to guess what was the likely text that would have been highlighted.  Oh well.  –Mark

From the summary of Pass-Throughs, Corporations, and Small Businesses: A Look at Firm Size (June 23, 2015 R44086):

In debates over tax policy, it is not uncommon for pass-throughs to be viewed as small businesses and for corporations to be viewed as large businesses. This report uses 2011 U.S. Census data to investigate how the size of businesses varies by legal form (corporate versus pass-through). Firm size is based on employment. The analysis finds that the majority of both corporations and pass-throughs in 2011 had fewer than five employees (56% of C corporations and 65% of pass-throughs). Over 99% of both corporations and pass-throughs had fewer than 500 employees, the most common employment-based threshold used by the Small Business Administration (SBA). Thus, when using an employment-based measure of size, the majority of all businesses can be considered small, with the exact share depending on the chosen definition of small.

Analysis of the data also reveals that while the majority of firms were small, the largest firms accounted for the majority of employment. Slightly more than 50% of all employees worked at firms (corporate and pass-through) with 500 or more employees in 2011. Looking at this statistic separately for corporations and pass-throughs, roughly 73% of corporate employees worked at firms with more than 500 employees, while about 24% of pass-through employees worked at firms with more than 500 employees. Thus, while a greater proportion of workers in the corporate sector were employed by the largest firms, the proportion of pass-through employees employed at the largest firms was not small.

The average number of employees at large firms (more than 500 employees) is computed to gain insight into how large the largest firms were in 2011. There was a substantial difference in the average number of employees at large firms that were corporations as opposed to pass-throughs in 2011. The average number of employees at the largest C corporations (500 or more employees) was just above 4,000, while the average number of employees for pass-throughs was just over 1,000. Among large pass-throughs, partnerships tended to have the most employees on average with 1,156, S-corporations fall in the middle with 1,041 employees on average, and sole proprietorships have the fewest with 876 employees on average.

Understanding the data presented in this report may help policymakers when considering tax and non-tax policies. Specifically, it may help to better target policies that are geared toward affecting businesses of a particular size.

— Joe

The Sixth Circuit Court of Appeals decided the case of John Doe v. University of Cincinnati (16-4693) today.  The case concerns whether a preliminary injunction against a penalty of suspension imposed in a Title IX case should be upheld.  The Court agreed with Doe that his due process rights were violated as he had no way to cross examine the accuser in his case.  The Court notes that educational institutions are not in the judicial business, meaning that their hearings do not have to model trials and their rules of procedure.  Nonetheless, they have to provide a level of due process to the accused.  The fact that the University failed “to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.”

The process the University subscribes to in its administrative hearings for Title IX violations allows for accuser and accused to submit written questions which the administrative committee would review and ask each of the parties.  This did not happen in this hearing because the accuser, Jane Roe, did not attend the hearing.  University rules did not, in fact, require any of the parties to attend.  The panel made its decision on the basis of the written statements each party submitted, the Title IX Officer’s report, and statements Doe made in his defense at the hearing.  They decided to impose a two year suspension that was later reduced to one year on administrative appeal.

Doe took his case to the District Court which found in his favor.  The University could only decide based on the submissions from each party, basically one’s word against another.  The Court stated that cross examination was “essential” to due process in these circumstances.  The District Court also noted that the University’s code allowed for notarized statements from the accuser.  Roe’s statements were not notarized and the Court said that this significant departure from the institution’s own procedures could also amount to a violation of due process.

The University appealed to the Sixth Circuit which agreed with the District Court and upheld the preliminary injunction against suspension.  The Court largely agreed with the District Court’s reasoning.  The Court of Appeals set out the required process:

While the exact outlines of process may vary, universities must “at least” provide notice of the charges, an explanation of the evidence against the student, and an opportunity to present his side of the story before an unbiased decision maker. Id. (citing Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 565–66 (6th Cir. 2011)).

Both parties agreed that Doe’s property interest (not being suspended) is significant.  The Court said that the right to cross examine in one form or another is required by due process in the most serious of cases and the accusation of sexual misconduct is one of these cases.

Given the parties’ competing claims, and the lack of corroborative evidence to support or refute Roe’s allegations, the present case left the ARC panel with “a choice between believing an accuser and an accused.” Flaim, 418 F.3d at 641. Yet, the panel resolved this “problem of credibility” without assessing Roe’s credibility. Id. (citation omitted). In fact, it decided plaintiff’s fate without seeing or hearing from Roe at all. That is disturbing and, in this case, a denial of due process.

The Court held that the cross examination need not take the form of direct confrontation.  The question and answer format identified in the University Rules would work as would other variations such as appearances via Skype.  At the very least, the accuser will have to participate somewhat more actively in the hearing.

I wrote a book review recently of Laura Kipnis’ book, Unwanted Advances:  Sexual Paranoia Come to Campus, which is about this very issue.  Professor Kipnis highlighted some of the more egregious violations of due process in the book’s stories.  It’s well worth reading in light of this decision.

Mark

The Internet is abuzz with the news that Microsoft is deprecating the Paint program in the Fall Creators Update.  There are a spate of articles of the “say it aint so” variety on various sites, including Slate, Gizmodo, and PCWorld, among others.  Deprecated in this context means that Paint is no longer in active development.  Microsoft appears to be pushing  Paint 3D as the alternative.  That app is available in the Microsoft Store if anyone wants to try it out.

More news in the announcement includes the removal of the 3D Builder app that Microsoft pushed in the last Windows 10 updates and the removal of the Outlook Express code lurking on the code base.  I thought Microsoft would have done that years ago with the introduction of the Mail app.

— Mark

Here’s a little postscript to the Apple e-book antitrust case.  A failed e-book retailer BooksOnBoard (BOB) sued the publishers in 2014 for antitrust violations, essentially blaming conduct by the five Apple defendant publishers for its failure.  BOB purchased e-book inventory from a third-party wholesaler and sold books at a discount via its web site.

BOB claimed that the agency model pricing scheme destroyed its ability to compete in the e-book market, among other injuries.  The publishers presented evidence contradicting BOB’s claims.  The move to agency model pricing actually increased revenues for BOB.  The District Court opinion also mentioned factors such as the inability to link product to dedicated e-readers such as the Kindle or Nook and questionable management practices.

The District Court opinion from 2016 is available here.   The Second Circuit Court of Appeals opinion which largely adopted the District Court’s reasoning is here.

—Mark

It was during an era much like ours when the public library became an American institution, according to Barbara Fister in How Libraries Became Public (Inside Higher Ed, April 26, 2017):

I find it intriguing that the American public library grew out of an era that has many similarities to this one – the last quarter of the 19th century, when large corporations owned by the super-rich had gained the power to shape society and fundamentally change the lives of ordinary people. It was also a time of new communication technologies, novel industrial processes, and data-driven management methods that treated workers as interchangeable cogs in a Tayloristic, efficient machine. Stuff got cheaper and more abundant, but wages fell and employment was precarious, with mass layoffs common. The financial sector was behaving badly, too, leading to cyclical panics and depressions. The gap between rich and poor grew, with unprecedented levels of wealth concentrated among a tiny percentage of the population. It all sounds strangely familiar.

From the conclusion of the Inside Higher Ed article:

This [19th century constructive] response to turbulent social stress would be unimaginable today. President Trump’s proposed budget completely defunds the Institute of Museum and Library Services and cuts LSTA grants to local libraries. Our new FCC commissioner has cut out a program that made internet access affordable for resource-poor schools and libraries, rolled back privacy protections so ISPs can get into the targeted advertising game, and now is attacking net neutrality rules so that our telecoms will be able to favor their content and limit access to competitors’ – or to sites that aren’t run by deep-pocket corporations.

What made the vision of “free to all” so attractive in the late 19th century? Why now do we have to pay for “free” information services with our privacy and, ultimately, our freedom? And, given this dismal state of affairs, why do free public libraries persist?

— Joe

I like this book.  It has everything: sex, casual hookups, relationships, recriminations, jealousy, careers cut short, and much, much more.  That’s just the backdrop.  The real focus is what happens when any or all of these things go wrong and someone files a Title IX complaint.  Title IX protects people based on sex in educational programs or activities that receive Federal financial assistance.  It also prohibits harassment or retaliation for filing a Title IX complaint.  This is a powerful weapon.  The prevailing understanding is that men are predators and women are victims.  Add a distinct lack of due process in the investigation of a claim and one wonders why anyone would even say hello to another person on campus for fear of having charges filed against them.  I’m not kidding—much.

Kipnis uses the case of former Northwestern faculty member Peter Ludlow as a prime example.  Ludlow was a prominent academic in the Philosophy Department who dated a student.  She was not one of Ludlow’s students and not someone who would necessarily be affected by Ludlow’s status for good or ill any more than if they never met.  Nonetheless, they dated.  Kipnis notes that the relationship was not prohibited by any campus codes in effect at the time.  The relationship ran its course and that was the end of that until the student filed a Title IX charge that they had non-consensual sex.  Ludlow denied the claim and it was investigated.

It’s here that we discover that the Title IX investigator has immense discretion in characterizing the various claims with a decision based on “preponderance of the evidence” standard.  We also discover that the investigation process does not even remotely resemble fairness in that the object of the charges cannot bring a lawyer to the proceedings, can’t examine the evidence, and doesn’t know the details of the charges until after the decision is rendered.  The proceedings in Ludlow’s case a painful to read for those who are trained in legal process.  A judge would never tolerate this in a courtroom.

We discover other details.  The “victim” of these sexual liaisons might be coached by another faculty member.  There are examples in the book where a faculty member has encouraged someone to bring charges against a rival member apparently for malicious reasons.  There were some elements of this suggested in the Ludlow case.

Kipnis describes one case that shows just how out of touch Title IX can be with fundamental due process.  She describes how one female student brought charges against a male student two years after the alleged act was committed.  This happened (apparently) because the complaining student’s boyfriend had found out about her other relationship and she was trying to save face.  The result was that she destroyed the academic career of the other student.

Now, I don’t want to suggest, nor do I believe that Kipnis is suggesting, that men cannot be predators.  She does suggest, however, that women who are over the age of consent and are not so compromised by the “power” of their partner or a campus code of conduct that they cannot make decisions as to whom they can engage in sexual relations.  That is to say that women have sexual agency.  Not every case that falls within a Title IX investigation is automatically a case of predation despite the nature of the Title IX process.

Kipnis said as much in a 2015 essay in the Chronicle of Higher Education called Sexual Paranoia Strikes Academe (premium content).  That essay, in fact, subjected Kipnis to her own Title IX investigation which lasted some 76 days before being closed in her favor.  She describes the case against her in one of the book’s chapter.

Kipnis is a bit of a lightning rod when it comes to ideas about sexuality.  Conor Friedersdorf wrote an article in The Atlantic recently about an attempt at Wellesley to ban her from campus because she might spread ideas that would cause “damage” or “injury.”  I guess that this book might cause the proponents of the ban an apoplectic fit if it became part of the library collection there.  I highly recommend the book.  The ideas are fresh and worth considering.

HarperCollins provided a copy of the book for review.

Mark

Blockchain technologies are beginning to push a broad array of global economic activities away from centralized and toward decentralized market structures according to Julie A. Mauplin in Mapping the Global Legal Landscape of Blockchain Technologies. “Governments should tackle the new regulatory conundrums of an increasingly disintermediated global economy by focusing on blockchain’s individual use cases rather than its underlying enabling technologies. Grouping the known use cases around common characteristics reveals three broad categories of blockchain/law interfaces: the green box, the dark box, and the sandbox. Each raises distinctive legal, regulatory and policy challenges deserving of separate analysis.”

— Joe

From the abstract of Ethan Kane’s Is Blockchain a General Purpose Technology?:

Is Blockchain a General Purpose Technology? To answer this question, we create a new method for identifying General Purpose Technologies, utilising contemporary data rather than historical, and use it to identify Blockchain as a General Purpose Technology. We survey 200 Blockchain applications, identifying their function and grouping them by what sector they operate in. This data is used to show that Blockchain shares characteristics with General Purpose Technologies to such a degree that it can be identified as such even though it is still an emerging technology. We conclude with a look at the implications of our findings and examining the problems in identifying a General Purpose Technology at this early stage of its development.

— Joe

Due to the prominence of immigration enforcement issues during the 2016 presidential election and the Trump administration’s recent warning that it will withhold federal funding to sanctuary cities soon, I thought I would look up recent CRS reports on sanctuary jurisdictions. Two reports seem most appropriate:

State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement (July 10, 2015 R43457).

This report discusses legal issues related to state and local measures that limit law enforcement cooperation with federal immigration authorities. The report begins by providing a brief overview of the constitutional principles informing the relationship between federal immigration authorities and state and local jurisdictions, including the federal government’s power to preempt state and local activities under the Supremacy Clause, and the Tenth Amendment’s proscription against Congress directly “commandeering” the states to administer a federally enacted regulatory scheme.

The report then discusses various types of measures adopted or considered by states and localities to limit their participation in federal immigration enforcement efforts, including (1) limiting police investigations into the immigration status of persons with whom they come in contact; (2) declining to honor federal immigration authorities’ requests that certain aliens be held until those authorities may assume custody; (3) shielding certain unlawfully present aliens from detection by federal immigration authorities; and (4) amending or applying state criminal laws so as to reduce or eliminate the immigration consequences that might result from an alien’s criminal conviction.

See also Sanctuary Jurisdictions and Criminal Aliens: In Brief (Revised January 10, 2017 R44118). — Joe