Stanford takes top honors in ATL’s 2017 top 50 law schools rankings

ATL’s rankings are the only rankings to incorporate the latest ABA employment data for the class of 2016. Details here. — Joe

Interference in the 2016 presidential election: Did Russia violate international law?

Here’s the abstract for Did Russian Cyber-Interference in the 2016 Election Violate International Law?, Texas Law Review, Forthcoming, by Jens David Ohlin:

When it was revealed that the Russian government interfered in the 2016 U.S. presidential election by hacking into the email system of the Democratic National Committee and releasing its emails, international lawyers were divided over whether the cyber-attack violated international law. President Obama seemingly went out of his way to describe the attack as a mere violation of “established international norms of behavior,” though some international lawyers were more willing to describe the cyber-attack as a violation of international law. However, identifying the exact legal norm that was contravened turns out to be harder than it might otherwise appear. To the layperson, the Russian hacking constituted an impermissible (and perhaps shocking) interference in the American political process—an intervention that non-lawyers would not hesitate to label a “violation of sovereignty” as that term is used in political or diplomatic discourse.

The problem arises when one attempts to translate that common-sense intuition into legal discourse. At that point, the translation effort breaks down for a variety of reasons. The genesis of the difficulty is that none of the standard rubrics for understanding illegal interventions clearly and unambiguously applies to the facts in question. That being said, it would be a mistake to hastily reject our common-sense intuitions about the impropriety of Russian hacking during the election. The lack of fit with the doctrinal requirements for an illegal intervention against another state’s sovereignty is simply an indication that the notions of “sovereignty” and “intervention”—though mainstays of contemporary public international law doctrine—are poorly suited to analyzing the legality of the conduct in this case. A far better rubric for analyzing the behavior is the notion of self-determination, a legal concept that captures the right of a people to decide, for themselves, both their political arrangements and their future destiny.

Interesting. — Joe

Why did Lexis Advance never receive AALL’s New Product Award?

AALL’s annual New Product Award gives the recipient vendor free fodder for an advertising campaign and a dose of much needed good press each year. “This award honors new commercial information products that enhance or improve existing law library services or procedures or innovative products which improve access to legal information, the legal research process, or procedures for technical processing of library materials. A ‘new’ product is one which has been in the library-related marketplace for two years or less. New products may include, but are not limited to, computer hardware and/or software, educational or bibliographic material, or other products or devices that aid or improve library workflow, research, or intellectual access. Products that have been reintroduced in a new format or with substantial changes are eligible.” Quoting from AALL’s New Product Award page.

Thomson Reuters won the award for WestlawNext in 2011 and Bloomberg Law won for BLaw in 2012. What ever happened to Lexis Advance? Launched in 2011, Lexis Advance would have still been eligible for the award in 2013 but PLI’s PLI Discover PLUS received it that year. PLI Discover PLUS is an excellent service but…it’s not from a major vendor of what was then a next-generation search service like, for example, WestlawNext was at the time Thomson Reuters received its award. Besides, I believe, PLI Discover PLUS would have been eligible for the award in 2014.

Lexis Advance was no better or worse than WestlawNext and arguably better that BLaw back in 2011-2013. So I’m left wondering why LexisNexis never received AALL’s New Product Award. For that matter, why didn’t LexisNexis receive the New Product Award when it launched the first professional grade, enhanced law eBooks and/or the first law eBook lending platform, the LexisNexis Digital Library? If LexisNexis systematically enhances its secondary works accessed on Lexis Advance with videos as it did with one title, the Company might be eligible again because “products that have been reintroduced in a new format or with substantial changes are eligible.” — Joe

List of Previous AALL New Product Award Winners

2017: Casetext, Pablo Arredondo, Vice President, Legal Research, San Francisco, CA, CARA

2016: Ravel Law, Daniel Lewis, CEO and Co-Founder, San Francisco, CA, Judge Analytics

2015: Lex Machina, Josh Becker, CEO, Menlo Park, CA, Legal Analytics®

2014: William S. Hein & Co., Inc., Getzville, NY and Fastcase, Inc., Washington, D.C., HeinOnline/Fastcase Integration

2013: Practicing Law Institute, New York, NY, PLI Discover PLUS

2012: Bloomberg Law, New York, NY, Bloomberg Law

2011: WestlawNext Team, Eagan, MN, Thomson Reuters – WestlawNext

2010: Fastcase, Inc., Fastcase Legal Research iPhone App

2009: William S. Hein & Co., Inc., Subject Compilations of State Laws (HeinOnline)

2008: Cassidy Cataloging Services, Inc., WLX Cataloging Record Service (WLX E Treatise Collection, Lexis II Primary Sources, and Westlaw IV Journals & Law Reviews)

2007: No award

2006: No award

2005: Thomson Gale, The Making of Modern Law

2004: Jenkins Law Library & American Lawyer Media, http://www.palawlibrary.com

2003: No award

2002: No award

2001: W.S. Hein & Co., Inc., Hein-On-Line

2000: IndexMaster, Inc., IndexMaster

1999: West Group, Key Cite

1998: Congressional Information Services, Inc., CIS Congressional Universe

1997: BNA, Inc., Health Law & Business Series

1996: No award

1995: Shepard’s McGraw-Hill, Inc., How to Shepardize

Citizen Lab’s ‘Tainted Leaks: Disinformation and Phishing With a Russian Nexus’

Tainted Leaks: Disinformation and Phishing With a Russian Nexus (May 25, 2017), “describes an extensive Russia-linked phishing and disinformation campaign. It provides evidence of how documents stolen from a prominent journalist and critic of Russia was tampered with and then “leaked” to achieve specific propaganda aims. We name this technique “tainted leaks.” The report illustrates how the twin strategies of phishing and tainted leaks are sometimes used in combination to infiltrate civil society targets, and to seed mistrust and disinformation. It also illustrates how domestic considerations, specifically concerns about regime security, can motivate espionage operations, particularly those targeting civil society.” This Citizen Law report “uncovers a major disinformation and cyber espionage campaign with hundreds of targets in government, industry, military and civil society. Those targets include a large list of high profile individuals from at least 39 countries (including members of 28 governments), as well as the United Nations and NATO. Although there are many government, military, and industry targets, our report provides further evidence of the often-overlooked targeting of civil society in cyber espionage campaigns.  Civil society — including journalists, academics, opposition figures, and activists — comprise the second largest group (21%) of targets, after government.” — Joe

CRS guides for researching federal legislation

Two regularly updated research guides produced by the Congressional Research Service were updated in the last year.

Researching Current Federal Legislation and Regulations: A Guide to Resources for Congressional Staff (Feb. 6, 2017, RL33895) introduces congressional staff to selected governmental and nongovernmental sources that are useful in tracking and obtaining information on federal legislation and regulations. It includes governmental sources, such as Congress.gov, the Government Publishing Office’s Federal Digital System (FDsys), and U.S. Senate and House websites. Nongovernmental or commercial sources include resources such as HeinOnline and the Congressional Quarterly (CQ) websites.

Legislative History Research: A Guide to Resources for Congressional Staff (July 6, 2016, R41865) provides an overview of federal legislative history research, the legislative process, and where to find congressional documents. The report also summarizes some of the reasons researchers are interested in legislative history, briefly describes the actions a piece of legislation might undergo during the legislative process, and provides a list of easily accessible print and electronic resources.

See also, The Framing of the United States Constitution: A Beginner’s Guide on In Custodia Legis.

Useful. — Joe

Origins of Memorial Day observance in the United States

In 1868, Commander in Chief John A. Logan of the grand Army of the Republic issued what was called General Order Number 11, designating May 30 as a memorial day. He declared it to be “for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet churchyard in the land.” Hence the original name for Memorial Day was Decoration Day.

Here’s the complete text of the order:

HEADQUARTERS GRAND ARMY OF THE REPUBLIC
General Orders No. 11, WASHINGTON, D.C., May 5, 1868

1. The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.

We are organized, comrades, as our regulations tell us, for the purpose among other things, “of preserving and strengthening those kind and fraternal feelings which have bound together the soldiers, sailors, and marines who united to suppress the late rebellion.” What can aid more to assure this result than cherishing tenderly the memory of our heroic dead, who made their breasts a barricade between our country and its foes? Their soldier lives were the reveille of freedom to a race in chains, and their deaths the tattoo of rebellious tyranny in arms. We should guard their graves with sacred vigilance. All that the consecrated wealth and taste of the nation can add to their adornment and security is but a fitting tribute to the memory of her slain defenders. Let no wanton foot tread rudely on such hallowed grounds. Let pleasant paths invite the coming and going of reverent visitors and fond mourners. Let no vandalism of avarice or neglect, no ravages of time testify to the present or to the coming generations that we have forgotten as a people the cost of a free and undivided republic.

If other eyes grow dull, other hands slack, and other hearts cold in the solemn trust, ours shall keep it well as long as the light and warmth of life remain to us.

Let us, then, at the time appointed gather around their sacred remains and garland the passionless mounds above them with the choicest flowers of spring-time; let us raise above them the dear old flag they saved from hishonor; let us in this solemn presence renew our pledges to aid and assist those whom they have left among us a sacred charge upon a nation’s gratitude, the soldier’s and sailor’s widow and orphan.

2. It is the purpose of the Commander-in-Chief to inaugurate this observance with the hope that it will be kept up from year to year, while a survivor of the war remains to honor the memory of his departed comrades. He earnestly desires the public press to lend its friendly aid in bringing to the notice of comrades in all parts of the country in time for simultaneous compliance therewith.

3. Department commanders will use efforts to make this order effective.

By order of

JOHN A. LOGAN,
Commander-in-Chief

Source. — Joe

Fourth Circuit upholds injunction against President Trump’s travel ban

Here’s the text of the opinion. For an analysis, see this Constitutional Law Prof Blog post. — Joe

It’s about time: LexisNexis publishes first multimedia secondary work

Since the foreshadowed demise of Lexis and Westlaw classic versions back in 2010 and 2011, I’ve been expecting to see the use of multimedia by our very expensive digital legal publishers in their newer search service platforms because it could be a transformative value-add-on for the traditional text-only electronic delivery of legal information. LexisNexis’ The Wagstaffe Group Practice Guide: Federal Civil Procedure Before Trial embeds 150+ short videos within the content of the work when you subscribe to the publication on Lexis Advance. LexisNexis press release. It appears, however, that the videos may not be embedded in a standalone eBook edition of this work. The work’s blurb notes “The eBook versions of this title feature links to Lexis Advance for further legal research options. Video content and links are exclusively available with a subscription to this title on Lexis Advance.” That’s disappointing but not unexpected; both Thomson Reuters and LexisNexis require a subscription to their search service to access resources linked to in their eBooks.

H/T to Bob Ambrogi’s LawSite post. See also Jean O’Grady’s Treatises are not dead they are just being transformed. Lexis Launches First Video Treatise. Can the Gamified Treatise Be Far Behind? — Joe

New CBO analysis of American Health Care Act, H.R. 1628, as passed by the House

The Congressional Budget Office released its analysis of the health-care bill that passed the House of Representatives earlier this month. Here’s the text. For an analysis, see NPR’s GOP Health Plan Would Leave 23 Million More Uninsured, Budget Office Says. — Joe

UELMA update

The Uniform Electronic Legal Material Act (UELMA) has been enacted in 16 states and the District of Columbia. AALL has updated its handy UELMA Enactment Chart, which includes information about the covered materials, cost, and effective date of the act in each state. — Joe

Who is Marc Kasowitz?

Numerous sources, including Reuters and the Washington Post, are reporting that President Trump has retained trusted longtime counsel Marc Kasowitz to help with the Russia probe despite Kasowitz having no substantial criminal law experience. So who is he?

According to his profile on the Kasowitz Benson Torres LLP website, Kasowitz has been “[d]escribed by CNBC as the ‘toughest lawyer on Wall Street’ and by Bloomberg Financial News as an ‘uberlitigator.'” From the profile:

Marc regularly serves as national trial counsel in complex litigation in the areas of bank finance, fraudulent conveyance, RICO, corporate governance, antitrust, securities, mass tort, product liability, environmental, breach of contract, and other commercial cases.  Marc also has an extensive and successful track record in dealing with investigations and lawsuits by state attorneys general, including path-breaking settlements of tobacco litigation.  Marc has also conducted numerous internal investigations on behalf of boards of directors, management and special committees regarding alleged corporate misfeasance, conflicts of interest, challenges to board authority, insider trading, accounting fraud, market timing, obstruction of justice, market manipulation, and other issues relating to director and officer fiduciary responsibilities and liabilities.

In Marc E. Kasowitz: 5 Fast Facts You Need to Know, we learn

  1. He Has Represented Donald Trump For Over 15 Years
  2. He Wrote a Letter Demanding The New York Times Retract Its Story About Donald Trump’s Alleged Groping Incidents
  3. Another One of His Clients Is the Largest Bank in Russia
  4. His Former Partner Is Now the U.S. Ambassador to Israel
  5. He Has Compared the O’Reilly Scandal to McCarthyism

Regarding the O’Reilly scandal, the article notes that Kasowitz represented Bill O’Reilly during the Fox News host’s legal trouble surrounding alleged sexual harassment in the workplace. See also, ATL’s What’s Going On At Kasowitz Benson? — Joe

Charlotte School of Law students receive federal loan money in the nick of time

Karen Sloan is reporting that the Department of Education has released federal loan money for beleaguered Charlotte School of Law students. Back in December, the Department of Education had revoked the school’s eligibility for the federal student loan program. That left students scrambling for ways to pay for the spring semester without loan money. All that changed apparently after the school hired lobbyists including one who worked with Education Secretary Betsy DeVos during her confirmation hearings. For more, see Karen Sloan, With New Lobbyists, Charlotte Law Disperses Federal Student Loans as School Year Ends, Law.com, May 22, 2017. — Joe

New edition of law librarian’s bible now available


The 2017 edition of Legal Information Buyer’s Guide & Reference Manual is now available. Enhancements include:

  • More than 80 new treatises, reference titles, and other product reviews (Chapter 27)
  • Enhanced bibliographies of legal treatises in 66 subject areas, including 77 titles on Legal Research and Writing, with new, used, electronic, and West Monthly Assured Print Pricing on more than 2,600 titles in all (Chapter 27)
  • Enhanced bibliography of legal reference titles (Chapter 22)
  • Updated bibliographies of state legal resources and research guides (Chapter 28)
  • Completely updated bibliographic data for all covered titles
  • Completely updated cost and supplementation figures through 2017, with supplementation figures through 2016 (and 2017 for Matthew Bender).
  • Completely updated cost spreadsheet for supplemented titles (Appendix H)
  • Completely updated charts and tables reflecting 2016 annual reports and pricing data
  • Completely updated sample Westlaw and Lexis costs (Chapter 25)
  • Completely updated sample CALR costs for all vendors (Chapter 25)
  • Completely updated spreadsheet of caselaw coverage for all CALR vendors
  • Completely updated spreadsheet of published state statutory codes
  • Recent industry developments and acquisitions, including profit margins (Chapter 2)
  • Updated information on Fastcase and Law360
  • Cumulative supplementation cost data going back 24 years — all at your fingertips — to guide your acquisitions and de-acquisitions decisions
  • Special alerts of egregious price and supplementation cost increases in recent years

Highly recommended. — Joe

A very short introduction to citation performance indicators

The purpose of Citation Performance Indicators — A Very Short Introduction by Phil Davis, Scholarly Kitchen (May 15, 2017) “is to provide a brief summary of the main citation indicators used today. It is not intended to be comprehensive, nor is it intended to opine on which indicator is best. It is geared for casual users of performance metrics and not bibliometricians.”

H/T to Gary Price’s InfoDocket post. — Joe

Trump administration’s first budget released

Following up on President Trump’s budget blueprint, the Trump administration released an ideological wish list, its first budget on May 23rd. See A New Foundation for American Greatness – President’s Budget FY 2018 and Major Savings and Reform. It now heads to the House where opposition from Trump’s own party is expected. Politico reports that House Speaker Paul Ryan is standing by his alternative tax reform plan which includes a controversal “border adjustment tax” that would put a 20 percent tax on imports coming into the U.S. See The battle over the border tax. Talking points to sell the Ryan tax reform plan were released recently.

Referencing Trump’s budget blueprint, CNN identified many of Trump’s proposed budget cuts as did the New York Times here. See also, The Key Spending Cuts and Increases in Trump’s Budget, NYT, May 22, 2017. — Joe

End Note: Browse all the FY2018 budget documents here.

Search and politics

Search and Politics: The Uses and Impacts of Search in Britain, France, Germany, Italy, Poland, Spain, and the United States reports the results of an online poll of Internet users about how they use search, social media, and other important media to get information about political candidates, issues, and politics generally. From the abstract:

Global debate over the impact of algorithms and search on shaping political opinions has increased following dramatic election results in Europe and the US. Powerful images of the Internet enabling access to a global treasure trove of information have shifted to worries over whether those who use search engines and social media are being fed inaccurate, false, or politically targeted information that distorts public opinion. There are serious questions over whether biases embedded in the algorithms that drive search engines and social media have major political consequences, such as creating filter bubbles or echo chambers. For example, do search engines and social media provide people with information that aligns with their beliefs and opinions or do they challenge them to consider countervailing perspectives? Most generally, the predominant concern is do these media have a major impact on public opinion and political viewpoints, and if so, for the better or worse.

— Joe

Legal issues surrounding fake news: An analysis

“Fake news” has garnered substantial attention recently but the authors of Fake News: A Legal Perspective, Journal of Internet Law (Apr. 2017) note that no legal discussion of issues surrounding the publication of fake news have appeared in the legal literature. “This [brief] article evaluates examples of fake news publications to present a workable definition of “fake news” for purposes of our legal analysis. We then explore many of the legal and regulatory hurdles facing online fake news publishers. This article concludes by discussing some of the legal protections available to fake news publications and publishers of other online content.” — Joe

Are you ready for the Third Wave of AI for Law?

An Artificial Lawyer post, The Third Wave of Legal AI by Kripa Rajshekhar, the founder of legal AI company Metonymy Labs, has three goals (1) Introduce the Third Wave of AI, (2) Outline, in broad strokes, what this means for AI and Law, (3) Illustrate the path forward with a specific application of the approach: Metonymy Labs’ work to augment diligence with AI. Interesting. — Joe

Suggested articles of impeachment for President Trump

The time has come for Congress to act and for leaders on both sides of the aisle to put country before party and politics. Speaker Paul Ryan and Majority Leader Mitch McConnell ought to, in cooperation with Democratic leaders, begin the sequence of events that would likely lead to impeachment and removal proceedings for Trump. Given that this is unlikely, Democrats should make clear of their intentions to do what is necessary under our Constitution should they win back control of the House of Representatives in 2018. This process should be as full, fair, and transparent as our Constitution requires. Anything less would demean and harm the country even more than Trump has already done. — Phillip Carter, A first draft of an impeachment bill for the president, Salon, May 16, 2017

Echoing similar sentiments, Keith E. Whittington warns “If the impeachment power is perceived to be little more than a partisan tool for undermining elected officials and overturning election results, then the value of elections for resolving our political disagreements is significantly reduced. We do not want to be in a situation in which neither side trusts the other to continue adhering to the most basic democratic norms of abiding by election results.” Keith E. Whittington, An Impeachment Should Not Be a Partisan Affair, Lawfare, May 16, 2017.

Short of the Democrats winning a majority of seats in the House in the 2018 congressional elections, it is hard to imagine the Republican controlled House of Representatives bringing articles of impeachment against President Trump because impeachment has been a partisan political action for quite a while now. See Richard K. Neumann, Jr., The Revival of Impeachment as a Partisan Political Weapon, 34 Hastings Constitutional Law Quarterly 161 (2007). But if viewed as a thought experiment, Phillip Carter has offered a “first draft” of an impeachment bill. The drafted articles of impeachment he identifies are listed below:

Article 1: Compromising the integrity of the presidency through continuing violation of the Constitution’s Emoluments Clause.

Article 2: Violation of his constitutional oath to faithfully execute the duties of his office by disregarding U.S. interests and pursuing the interests of a hostile foreign power, to wit, Russia.

Article 3: Impairment and obstruction of inquiries by the Justice Department and Congress into the extent of the Trump administration’s conflicts of interests and Russia ties.

Article 4: Undermining of the American judicial system through felonious intimidation of potential witnesses.

Article 5: Undermining of his office and the Constitution through repeated assaults on the integrity of the federal judiciary and its officers.

Article 6: Demeaning the integrity of government and its public servants, particularly the military and intelligence agencies, in contravention of his constitutional duties to serve as chief executive and commander in chief of the armed forces.

Looks comprehensive to me. See Phillip Carter, A first draft of an impeachment bill for the president, Salon, May 16, 2017 for his explanations for each draft article of impeachment . See also, The Republican’s Guide to Presidential Behavior, New York Times editorial, May 13, 2017 (“What do Paul Ryan, Mitch McConnell and other Republican leaders think a president may say or do and still deserve their enthusiastic support? We offer this handy reference list in hopes of protecting them from charges of hypocrisy in the future. They can consult it should they ever feel tempted to insist on different standards for another president.”)  — Joe

FCC starts regulatory process to roll back net neutrality rule

The FCC voted 2-1 along party lines to advance FCC chairman Pai’s Restoring Internet Freedom proposal, which would repeal current net neutrality protections Thursday. Politico reports “The FCC’s action Thursday doesn’t repeal the rules yet but instead launches a lengthy proceeding that will pit ISPs and conservative groups, which back Pai’s efforts, against left-leaning digital activists and leading tech companies that say the net neutrality rules are crucial to creating a level playing field online. Already, the debate has begun to echo the bitter fight over the issue two years ago, and the number of public comments filed in the proceeding has skyrocketed to 1.6 million at last count.”

From the FCC press release:

The Federal Communications Commission today took the first step toward restoring Internet freedom and promoting infrastructure investment, innovation, and choice by proposing to end utility-style regulation of broadband Internet access service.

In a Notice of Proposed Rulemaking, the FCC proposes to return to the bipartisan framework that preserved a flourishing free and open Internet for almost 20 years.  First, the Notice proposes to reverse the FCC’s 2015 decision to impose heavy-handed Title II utility-style government regulation on Internet service providers (ISPs) and return to the longstanding, successful light-touch framework under Title I of the Communications Act.

Second, the Notice proposes to return to the Commission’s original classification of mobile broadband Internet access service as a private mobile service.  Given the historical innovation and success of the wireless marketplace prior to the Title II Order, this proposal is expected to substantially benefit consumers and the marketplace.

Third, the Notice proposes to eliminate the catch-all Internet conduct standard created by the Title II Order.  Because the Internet conduct standard is extremely vague and expansive, ISPs must guess at what they are permitted to do.  Eliminating the Internet conduct standard is therefore expected to promote innovation and network investment by eliminating regulatory uncertainty.

“The FCC is proposing a rule that would reclassify broadband as an ‘information service’ rather than a ‘telecommunications service.’ FCC Chairman Ajit Pai claims that this move would protect users, but all it would really do is protect Comcast and other big ISPs by destroying the legal foundation for net neutrality rules. Once that happened, it would only be a matter of time before your ISP had more power than ever to shape the Internet” wrote Corynne McSherry in yesterday’s EFF commentary, Dear FCC: We See Through Your Plan to Roll Back Real Net Neutrality.

For background see Net neutrality: If the Internet is not a utility, what is it? on LLB. — Joe