From the abstract for Zahr Said & Jessica M. Silbey, Narrative Topoi in the Digital Age, 68 Journal of Legal Education ___ (Forthcoming):

Decades of thoughtful law and humanities scholarship have made the case for using humanistic texts and methods in the legal classroom. We build on that scholarship by identifying and describing three “narrative topoi” of the twenty-first century – podcasts, twitter and fake news. We use the term “topos” (from the Greek meaning “place”) and its plural, “topoi,” to mean “a literary commonplace” and “general setting for discussion” in the context of literary forms. Like an identifiable genre, narrative topoi are familiar story paths for audiences to travel. These narrative topoi live in contemporary popular culture and are products of digital technology’s capacity to share and shape communication in new ways that draw on older narrative conventions and forms. In a law school, drawing on new narrative topoi can reorient legal analysis through inquiry into twenty-first-century problems of language, narrative form, authenticity, and audiences. Legal educators may also highlight historical continuity between cultural and legal history and today’s forms and experiences, foregrounding issues central to legal skills, such as analogic reasoning, advocacy, counseling, and factual analysis. We address all of these points while exploring particular examples of these narrative topoi of our digital age.

From the summary for Shutdown of the Federal Government: Causes, Processes, and Effects (RL34680, Dec. 10, 2018):

When federal agencies and programs lack funding after the expiration of full-year or interim appropriations, the agencies and programs experience a funding gap. If funding does not resume in time to continue government operations, then, under the Antideficiency Act, an agency must cease operations, except in certain situations when law authorizes continued activity. Funding gaps are distinct from shutdowns, and the criteria that flow from the Antideficiency Act for determining which activities are affected by a shutdown are complex.

American Media Inc., the publisher of the National Enquirer, has agreed to cooperate with New York federal prosecutors. The announcement was made by the Department of Justice through a public statement sharing that a non-prosecution agreement with American Media Inc. was met “related to its payment of $150,000 to [former Playboy model Karen McDougal] to influence 2016 presidential election,” per the statement.

Trump’s former lawyer, Michael Cohen, was sentenced to three years in prison Wednesday for crimes that included arranging payments during the 2016 election to silence women who claimed affairs with Trump after the President’s onetime “fixer” attributed his offenses to “my duty to cover up his dirty deeds.” In a court filing, the Office of the Special Counsel said Cohen has disclosed ‘relevant and useful’ information to its investigation. Read the Special Counsel’s memo on Michael Cohen. Federal prosecutors recommended a ‘substantial’ prison term for Michael Cohen. Read prosecutors’ sentencing recommendation for Michael Cohen.

An excerpt from the blurb for The Threat: How the FBI Protects America in the Age and Terror of Trump (St. Martin’s Press, Dec. 4, 2018):

The Threat recounts in compelling detail the time between Donald Trump’s November 2016 election and McCabe’s firing, set against a page-turning narrative spanning two decades when the FBI’s mission shifted to a new goal: preventing terrorist attacks on Americans. But as McCabe shows, right now the greatest threat to the United States comes from within, as President Trump and his administration ignore the law, attack democratic institutions, degrade human rights, and undermine the U.S. Constitution that protects every citizen.

— Joe

From the abstract for Cary Coglianese & David Lehr, Transparency and Algorithmic Governance, Administrative Law Review, Forthcoming:

Machine-learning algorithms are improving and automating important functions in medicine, transportation, and business. Government officials have also started to take notice of the accuracy and speed that such algorithms provide, increasingly relying on them to aid with consequential public-sector functions, including tax administration, regulatory oversight, and benefits administration. Despite machine-learning algorithms’ superior predictive power over conventional analytic tools, algorithmic forecasts are difficult to understand and explain. Machine learning’s “black-box” nature has thus raised concern: Can algorithmic governance be squared with legal principles of governmental transparency? We analyze this question and conclude that machine-learning algorithms’ relative inscrutability does not pose a legal barrier to their responsible use by governmental authorities. We distinguish between principles of “fishbowl transparency” and “reasoned transparency,” explaining how both are implicated by algorithmic governance but also showing that neither conception compels anything close to total transparency. Although machine learning’s black-box features distinctively implicate notions of reasoned transparency, legal demands for reason-giving can be satisfied by explaining an algorithm’s purpose, design, and basic functioning. Furthermore, new technical advances will only make machine-learning algorithms increasingly more explainable. Algorithmic governance can meet both legal and public demands for transparency while still enhancing accuracy, efficiency, and even potentially legitimacy in government.

From the abstract for Aaron Rappaport, An Unappreciated Constraint on the President’s Pardon Power (Nov. 30, 2018):

Most commentators assume that, except for the few textual limitations mentioned in the U.S. Constitution, the President’s pardon power is effectively unlimited. This paper suggests that this common view is mistaken in at least one unexpected way: Presidential pardons must satisfy a specificity requirement. That is, to be valid, the pardon must list the specific crimes insulated from criminal liability.

This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion. Nonetheless, that burden can be met. The paper’s argument rests on an originalist understanding of the Constitution’s text, an approach that leaves little doubt that a specificity requirement is an implicit limitation on the President’s pardon power. It also demonstrates that the main objections to the argument – that the requirement runs contrary to the Constitutional text or historical practice – are misguided and unpersuasive.

Of course, even if a specificity requirement exists, one may wonder about its significance. After all, the requirement does not prevent a President from issuing a pardon to any person or for any crime. Nonetheless, as the paper explains, a specificity requirement may prove more powerful than it first appears. Most importantly, it both limits the scope and raises the cost of issuing pardons for criminal violations, including violations of the electoral process. In so doing, the specificity requirement serves as an unexpected ally in the fight for political accountability and in defense of the rule of law.

Almost exactly a year ago, Donald Trump’s former National Security Adviser Michael Flynn entered into a cooperating plea deal with Special Counsel Robert Mueller. Flynn admitted lying to investigators about his communications with Russia’s ambassador to the US late in December 2016. The discussions related to sanctions then president Barack Obama had imposed on Moscow over its interference in the US election, and a UN security council vote on halting new Israeli settlements. After several postponements, Mueller has now made his sentencing recommendation illuminating the extent to which Flynn cooperated with the Office of Special Counsel in the Russia probe.

Read Mueller’s sentencing memo for Michael Flynn here and the redacted addendum here. The latter discusses the significance and usefulness of Flynn’s assistance. See also this Washington Post analysis and this New York Times analysis.

From the abstract for Laura P. Graham, Generation Z Goes to Law School: Teaching and Reaching Law Students in the Post-Millennial Generation, University of Arkansas at Little Rock Law Review, 2019, Forthcoming:

This Article … examines three learning characteristics of Generation Z students that have direct implications for legal educators: they are saturated with technology, they are weaker than their predecessor generations in critical reading, thinking, and writing, and they prefer to work alone rather than in collaborative settings.

Finally, this Article suggests concrete strategies for legal educators to address the challenges presented by Generation Z students, focusing on five areas: (1) more instruction in critical reading; (2) more writing opportunities across the law school curriculum; (3) more thoughtful (and perhaps more sparing) use of technology in the classroom; (4) more careful attention to how and when we use collaborative learning techniques; and (5) more emphasis on encouraging mindfulness and wellness in our students.

Today Reuters is reporting that TR revealed plans to cut 3,200 jobs — roughly 12 percent of its workforce — by 2020 in an attempt to cut costs and “streamline the business.” As part of the streamlining, the company said it planned to reduce the number of offices around the world by 30 percent to 133 locations by 2020. Thomson Reuters set a target to reduce its capital expenditure to between 7 percent and 8 percent of revenue in 2020 from 10 percent currently. The company has set aside $2 billion of the $17 billion proceeds from the Blackstone deal to make purchases to help grow its legal and tax businesses. For earlier coverage of TR layoffs in Legal see this LLB post.

A judge capped the costs award in an occupier’s liability personal injury costs judgment, writing that the use of artificial intelligence should have “significantly reduced” counsel’s preparation time. The decision in Cass v. 1410088 Ontario Inc., 2018 ONSC 6959 reduced the starting point for disbursements by $11,404.08, citing both research fees as well as other aspects of the lawyers’ bill, and awarded a total cost award against the plaintiff of $20,000.

From the introduction to US Sanctions on Russia (R45415, Nov. 28, 2018):

Sanctions are considered by many to be a central element of U.S. policy to counter Russian malign behavior. Most Russia-related sanctions have been in response to Russia’s 2014 invasion of Ukraine. In addition, the United States has imposed sanctions on Russia in response to human rights abuses, election interference and cyberattacks, weapons proliferation, illicit trade with North Korea, support to Syria, and use of a chemical weapon. The United States also employs sanctions to deter further objectionable activities. Most Members of Congress support a robust use of sanctions amid concerns about Russia’s international behavior and geostrategic intentions.

From the press release:

The Government Publishing Office (GPO) makes available a subset of enrolled bills, public and private laws, and the Statutes at Large in Beta United States Legislative Markup (USLM) XML, a format that makes documents easier to download and repurpose.

The documents available in the Beta USLM XML format include enrolled bills and public laws beginning with the 113th Congress (2013) and the Statutes at Large beginning with the 108th Congress (2003). They are available on govinfo, GPO’s one-stop site to authentic, published Government information. www.govinfo.gov/bulkdata

H/T Gary Price, InfoDocket

From the abstract for Milan Markovic, Rise of the Robot Lawyers? Arizona Law Review, Forthcoming:

The advent of artificial intelligence has provoked considerable speculation about the future of the American workforce, including highly educated professionals such as lawyers and doctors. Although most commentators are alarmed by the prospect of intelligent machines displacing millions of workers, not so with respect to the legal sector. Media accounts and some legal scholars envision a future where intelligent machines perform the bulk of legal work, and legal services are less expensive and more accessible. This future is purportedly near at hand as lawyers struggle to compete with technologically-savvy alternative legal service providers.

This Article challenges the notion that lawyers will be displaced by artificial intelligence on both empirical and normative grounds. Most legal tasks are inherently abstract and cannot be performed by even advanced artificial intelligence relying on deep-learning techniques. In addition, lawyer employment and wages have grown steadily over the last twenty years, evincing that the legal profession has benefited from new technologies, as it has throughout its history. Lastly, even if large-scale automation of legal work is possible, core societal values counsel against it. These values are not merely aspirational but are reflected in the multi-faceted role of lawyers and in the way that the legal system is structured.

govinfo is a redesign of the FDsys public website, with a focus on implementing feedback from users and improving overall search and access to electronic Federal Government information. The redesigned, mobile-friendly website incorporates innovative technologies and includes several new features for an overall enhanced user experience. GPO’s Federal Digital System (FDsys) website will be retired and replaced with govinfo on Dec. 14, 2018. Here’s answers to frequently ask questions about the transition.

The sentencing memo submitted by Cohen’s lawyers attributes to misplaced loyalty his decision to lie to Congress about Trump’s business negotiations over a Moscow hotel project. Cohen does not say that the president instructed him to lie. He was aware, his lawyers write, of the president’s public statements—that he had no such dealings with Russia—and he chose a line of testimony that would not contradict them. For more, see Lawfare’s There’s a Lot Going On in Michael Cohen’s Sentencing Memo and The Atlantic’s Three Remarkable Things About Michael Cohen’s Plea.

From the abstract for James P. Pfiffner, The Lies of Donald Trump: A Taxonomy:

The most important lies of Donald Trump differ significantly from previous presidential lies. Other presidents have lied for a variety of reasons, from legitimate lies concerning national security to trivial misstatements, to shading the truth, to avoiding embarrassment, to serious lies of policy deception. The paper distinguishes four types of Trump’s lies: 1) trivial lies, 2) exaggerations and self aggrandizing lies; 3) lies to deceive the public; and 4) egregious lies. It then analyzes the consequences of lies with respect to misinformation encoding and the relationship of lies to loyalty and power. The most serious lies of Donald Trump were egregious false statements that were demonstrably contrary to well known facts. The paper concludes that his lies were detrimental to the democratic process, and that his continued adherence to demonstrably false statements undermined enlightenment epistemology and corroded the premises of liberal democracy.