The Algorithm as a Human Artifact

In what will be considered a seminal article of the 2010s in law library literature, The Algorithm as a Human Artifact by Susan Nevelow Mart, Associate Professor and Director of the Law Library, University of Colorado Law School, has been published by LLJ. From the abstract:

The results of using the search algorithms in Westlaw, Lexis Advance, Fastcase, Google Scholar, Ravel, and Casetext are compared. Six groups of humans created six different algorithms, and the results are a testament to the variability of human problem solving. That variability has implications both for researching and teaching research.

Highly recommended. — Joe

How much political influence does the NRA really have (and does it matter)?

Here’s the abstract for Arjun Ponnambalm’s (Harvard) The Power of Perception: Reconciling Competing Hypotheses About the Influence of NRA Money in Politics:

The failure of Congress to enact meaningful gun control legislation despite overwhelming public support in the wake of the 2012 shootings in Newton, CT provides a unique opportunity to examine the influence of money in politics. The suspicion of improper influence arises whenever there is an apparent discrepancy between public opinion and the actions of elected representatives. This paper will explore two competing hypotheses regarding the degree of influence in Congress the National Rifle Association (NRA) has acquired through its political contributions, independent expenditures, and lobbying efforts. Using Lawrence Lessig’s framework of “dependency corruption,” this paper will argue that the influence of NRA money in politics is not as straightforward as it may appear, but that ultimately, the actual nature of the dependency between Congress and the NRA is less important than the fact that both public citizens and elected officials perceive that there is a dependency. This perception is sufficient to undermine public trust in Congress and distort the formulation of public policy.

— Joe

CRS Report: Diversity, Inclusion, and Equal Opportunity in the Armed Services: Background and Issues for Congress

From the summary of Diversity, Inclusion, and Equal Opportunity in the Armed Services: Background and Issues for Congress (Oct. 4, 2017 R44321):

Diversity, inclusion, and equal opportunity are three terms that are often used interchangeably; however, there are some differences in how they are interpreted and applied between the Department of Defense (DOD) and civilian organizations. DOD’s definitions of diversity and equal opportunity have changed over time, as have its policies toward inclusion of various demographic groups. These changes have often paralleled social and legal change in the civilian sector. The gradual integration of previously excluded groups into the military has been ongoing since the 19th century. In the past few decades there have been rapid changes to certain laws and policies regarding diversity, inclusion, and equal opportunity in the Armed Forces. Since 2009, DOD policy changes and congressional actions have allowed individuals who are gay to serve openly with recognition for their same-sex spouses as dependents for the purpose of military benefits and opened all combat assignments to women. On June 30, 2016, DOD announced the end of restrictions on service for those transgender troops already openly serving. However, in August of 2017, President Donald J. Trump directed DOD to (1) continue to prohibit new transgender recruits, (2) review policies on existing transgender sevicemembers, and (3) restrict spending on surgical procedures related to gender transition.

— Joe

Maybe it is time for Congress to take action on the Restricting First Use of Nuclear Weapons Act of 2017

After President Trump’s “calm before the storm” remark last night, maybe it is time to move the Restricting First Use of Nuclear Weapons Act of 2017 forward. Introduced in House and Senate on Jan. 24, 2017 by Rep. Ted Lieu [D-CA-33] and Sen Edward Markey [D-MA] the Restricting First Use of Nuclear Weapons Act of 2017, H.R. 669 / S. 200 prohibits the President from using the Armed Forces to conduct a first-use nuclear strike unless such strike is conducted pursuant to a congressional declaration of war expressly authorizing such strike. The bills are sitting in committees right now.

From the joint Lieu-Markey press release:

Upon introduction of this legislation, Mr. Lieu issued the following statement:

“It is a frightening reality that the U.S. now has a Commander-in-Chief who has demonstrated ignorance of the nuclear triad, stated his desire to be ‘unpredictable’ with nuclear weapons, and as President-elect was making sweeping statements about U.S. nuclear policy over Twitter. Congress must act to preserve global stability by restricting the circumstances under which the U.S. would be the first nation to use a nuclear weapon. Our Founders created a system of checks and balances, and it is essential for that standard to be applied to the potentially civilization-ending threat of nuclear war. I am proud to introduce the Restricting First Use of Nuclear Weapons Act of 2017 with Sen. Markey to realign our nation’s nuclear weapons launch policy with the Constitution and work towards a safer world.”

Upon introduction of this legislation, Senator Markey issued the following statement:

“Nuclear war poses the gravest risk to human survival. Yet, President Trump has suggested that he would consider launching nuclear attacks against terrorists. Unfortunately, by maintaining the option of using nuclear weapons first in a conflict, U.S. policy provides him with that power. In a crisis with another nuclear-armed country, this policy drastically increases the risk of unintended nuclear escalation. Neither President Trump, nor any other president, should be allowed to use nuclear weapons except in response to a nuclear attack. By restricting the first use of nuclear weapons, this legislation enshrines that simple principle into law. I thank Rep. Lieu for his partnership on this common-sense bill during this critical time in our nation’s history.”

— Joe

 

Mass Murder in the United States: A statistics sampler

Mother Jones Mass Shootings Map

Any consideration of new or existing gun laws that follows mass shootings is likely to generate requests for comprehensive data on the prevalence and deadliness of these incidents. In 2015, the Congressional Research Service produced Mass Murder with Firearms: Incidents and Victims, 1999-2013 (July 30, 2015 R44126). Additional sources, an admittedly eclectic sample, include the following:

For background, see also Grant Duwe, Mass Murder in the United States: A History (McFarland, 2007) This book examines 909 mass murders that took place in the United States between 1900 and 1999. By far the largest study on the topic at the time, it begins with a look at the patterns and prevalence of mass murders by presenting rates and by describing the characteristics of mass killers. Placing the phenomenon within the broader social, political, and economic context of the twentieth century, the work examines the factors that have influenced trends in the prevalence of mass murder. — Joe

California Values Act signed into law, makes California a sanctuary state

California Governor Jerry Brown signed SB 54, the California Values Act. [Signing Statement] The Act, reportedly the most far-reaching of its kind in the country, forbids local and state law enforcement officers from carrying out practices such as asking about someone’s immigration status, handing a person over to federal immigration authorities if there’s no warrant or establishment of probable cause and disclosing personal information about someone if it isn’t already public information. The law also prevents local and state law enforcement from detaining someone over an immigration hold request. — Joe

Fastcase adds blog commentary to Fastcase 7

In a major coup for both the LexBlog network and Fastcase, Fastcase has integrated the LexBlog network’s bloggers commentaries into Fastcase 7. Now, a Fastcase searcher can access contemporary analysis on legal developments in addition to linkage to HeinOnline’s library of legal periodicals. “We’re pushing hard to add the best secondary sources for our members,” said Fastcase CEO Ed Walters. “The LexBlog network is a platform for some of the nation’s leading experts in law to report and synthesize legal news and developments. And the collection of every day’s LexBlog posts reads like the most compelling legal newspaper in America.” Quoting from Bob Ambrogi’s LawSite’s post. — Joe

AG Sessions revokes Obama Administration position on transgender employment discrimination claims

The move was the Trump administration’s latest contraction of the Obama-era approach to civil rights enforcement.

The dispute centers on how to interpret employment protections based on “sex” in Title VII of the Civil Rights Act of 1964. In December 2014, the attorney general at the time, Eric H. Holder Jr., ordered the Justice Department to view “sex” as encompassing gender identity, extending protections to transgender people.

But in a two-page memo to all United States attorneys and other top officials, Mr. Sessions revoked Mr. Holder’s directive. The word “sex” in the statute, Mr. Sessions said, means only “biologically male or female,” so the Civil Rights Act does not ban “discrimination based on gender identity per se, including transgender status.” Charlie Savage, In Shift, Justice Dept. Says Law Doesn’t Bar Transgender Discrimination, NYT, Oct. 5, 2017

Yesterday the DOJ was instructed by AG Sessions to view transgender people as not protected by Title VII in court cases. Here’s the text of the memo. H/T beSpacific. — Joe

Are corporate legal departments ready for AI technology?

According to Thomson Reuters’ new report, Ready or Not: Artificial Intelligence and Corporate Legal Departments, “corporate counsel believe they are tech savvy but acknowledge that their comfort level and confidence with technology have limitations, specifically around artificial intelligence (AI).” From the press release:

The report notes that more than half (56%) of in-house attorneys either perceive that AI technology is not used or are not yet familiar with the use of AI technology in their legal department. And for others, there is skepticism about its reliability and cost-effectiveness. Despite the unknown, some in-house attorneys surveyed envision AI as being beneficial in increasing efficiency (17%), reducing costs (13%), minimizing risk (7%) and supporting document review (6%).

The top concern among respondents in using AI was cost (19%), as the mantra of doing more with less and budget constraints were key factors to adoption. Reliability (15%) was another concern, especially in areas of ethical considerations and confidentiality. A third concern is a constant with any new technology or process: change management (9%).

H/T to Bob Ambrogi’s LawSites post. — Joe

Russia’s interference in the 2016 US presidential election and information warfare

According to the declassified report, Assessing Russian Activities and Intentions in Recent US Elections: The Analytic Process and Cyber Incident Attribution, the CIA, FBI and NSA have “high confidence” that Russian President Vladimir Putin “ordered an influence campaign in 2016 aimed at the US presidential election” in order to “undermine public faith in the US democratic process, denigrate Clinton, and harm her electability and potential presidency.” The report also contends the Russian government “aspired to help President-elect Trump’s election chances when possible by discrediting Secretary Clinton and publicly contrasting her unfavorably to him.” See Russia and the U.S. Presidential Election (Jan. 17, 2017 IN10635) for the Congressional Research Service’s backgrounder.

Russian infomation warfare activities is the topic of Information Warfare: Russian Activities (Sept. 2, 2016 IN10563). From the report:

Russian doctrine typically refers to a holistic concept of “information war,” which is used to accomplish two primary aims:
•To achieve political objectives without the use of military force.
•To shape a favorable international response to the deployment of its military forces, or military forces with which Moscow is allied.

Tactics used to accomplish these goals include damaging information systems and critical infrastructure; subverting political, economic, and social systems; instigating “massive psychological manipulation of the population to destabilize the society and state”; and coercing targets to make decisions counter to their interests. Recent events suggest that Russia may be employing a mix of propaganda, misinformation, and deliberately misleading or corrupted disinformation in order to do so. And while Russian organizations appear to be using cyberspace as a primary medium through which these goals are achieved, the government also appears to potentially be using the physical realm to conduct more traditional influence operations including denying the deployment of troops in conflict areas and the use of online “troll armies” to propagate pro-Russian rhetoric.

These activities are placed in the larger context of US policy towards Russia in Russia: Background and U.S. Policy (Aug. 21, 2017 R44775). — Joe

CRS Report: Congressional Redistricting Law: Background and Recent Court Rulings

Following up on LLB’s SCOTUS tackles constitutionality of partisan gerrymandering, here’s a snip from the summary for Redistricting Law: Background and Recent Court Rulings (March 23, 2017 R44798):

In addition to various state processes, the legal framework for congressional redistricting involves constitutional and federal statutory requirements. Interpreting these requirements, in a series of cases and evolving jurisprudence, the U.S. Supreme Court has issued rulings that have significantly shaped how congressional districts are drawn and the degree to which challenges to redistricting plans may succeed. As the 2020 round of redistricting approaches, foundational and recent rulings by the Court regarding redistricting are likely to be of particular interest to Congress. This report analyzes key Supreme Court and lower court redistricting decisions addressing four general topics: (1) the constitutional requirement of population equality among districts; (2) the intersection between the Voting Rights Act and the Equal Protection Clause; (3) the justiciability of partisan gerrymandering; and (4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions.

— Joe

Law Library of Congress launches legal reference Chatbot

One of the highlights of the American Association of Law Libraries (AALL) conference in Austin this year was the Innovation Tournament which pitted three librarians’ tech innovations against each other. With two prizes, each worth $2,500, up for grabs, the competition was pretty tough. There was a scanning project management innovation, a Virtual Reality presentation preparedness tool, and an innovative ChatBot for legal information assistance. The ChatBot really caught my attention as something that I would love to test out on a local level. — Greg Lambert, Now I want a Chatbot, 3 Geeks and a Law Blog, July 27, 2017

Now Greg, you and I can test drive a new chatbot that walks a user through a basic reference interview. According to In Custodias Legis, the new chatbot can connect a user to primary legal sources, law library research guides and foreign law reports. The chatbot can also respond to a limited number of text commands. Go to the Law Library of Congress Facebook page to try the chatbot.

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

Bloomberg Law’s New Feature, Points Of Law

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

CRS Report: Overview of the Federal Government’s Power to Exclude Aliens

From the summary of Overview of the Federal Government’s Power to Exclude Aliens (Sept. 27, 2017 R 44969):

The Supreme Court has determined that inherent principles of sovereignty give Congress “plenary power” to regulate immigration. The core of this power—the part that has proven most impervious to judicial review—is the authority to determine which aliens may enter the country and under what conditions. The Court has determined that the executive branch, by extension, has broad authority to enforce laws concerning alien entry mostly free from judicial oversight. Two principles frame the scope of the political branches’ power to exclude aliens. First, nonresident aliens abroad cannot challenge exclusion decisions because they do not have constitutional or statutory rights with respect to entry. Second, even when the exclusion of a nonresident alien burdens the constitutional rights of a U.S. citizen, the government need only articulate a “facially legitimate and bona fide” justification to prevail against the citizen’s constitutional challenge.

The merits of these so-called “Travel Ban” cases raise significant questions about the extent to which the rights of U.S. citizens limit the executive power to exclude aliens. It seems relatively clear that, under existing jurisprudence, the “facially legitimate and bona fide” standard should govern the Establishment Clause claims against the revised executive order. However, Supreme Court precedent does not clarify whether that standard contains an exception that might permit courts to test the government’s proffered justification for an exclusion by examining the underlying facts in particular circumstances. Nor does Supreme Court precedent resolve whether the standard governs U.S. citizens’ statutory claims against executive exercise of the exclusion power, or even whether such statutory claims are cognizable. The outcome of the Travel Ban cases would likely turn upon these issues, if the Supreme Court were to decide the cases on the merits rather than on a threshold question such as mootness (a key issue in light of a presidential proclamation modifying the entry restrictions at issue in the cases).

— Joe

SCOTUS tackles constitutionality of partisan gerrymandering

Yesterday, the Supreme Court heard oral arguments in Gill v. Whitford. Here’s the transcript. See also Amy Howe’s Argument analysis: Cautious optimism for challengers in Wisconsin redistricting case? on SCOTUSblog and Professor Ruthann Robson’s SCOTUS Hears Arguments on Constitutionality of Partisan Gerrymandering on Constitutional Law Prof Blog. — Joe

Inspector General reports from across the federal government now available on a single website

The Council of the Inspectors General on Integrity and Efficiency announced the official launch of Oversight.gov. This new website creates a single home for thousands of Inspector General reports from across the federal government.

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

Relevance: AALL leadership requires a diversity of types of institutional perspectives holding the office of president

There was a time in the not too distance past of AALL when it was very unusual for someone other than an academic law librarian to hold the post of elected AALL president. Diversity of types of institutional perspectives in the AALL’s presidential officeholder was lacking. Between the 2000-01 term and 2011-12 term, for example, academic law librarians held the position of AALL president 11 of the 12 terms of office. During that time, it was fairly commonplace to hear complaints that AALL was no longer relevant to the professional careers of many AALL members, particularly among disenchanted firm librarians.

Since 2011-12, the situation has improved. From the 2012-13 term through the current 2017-18 term, government law librarians, academic law librarians and firm law librarians each have filled the presidential post twice. Could this be why we hear fewer, quieter complaints about the relevance of AALL for members’ professional lives and their employers’ missions? — Joe

AALL members, time to get your vote on

This year’s slate of AALL candidates —

Vice President/President-Elect:

Michelle Cosby, Associate Director, Univ. of Tennessee Law Library
Carol A. Watson, Director, Univ. of Georgia Law Library

Executive Board Members:

June Hsiao Liebert, Firmwide Director of Library & Research Services, Sidley Austin LLP
Liz Reppe, State Law Librarian, Minnesota State Law Library
Karen Selden, Metadata Services Librarian, Univ. of Colorado Law Library
Christine L. Sellers, Research Specialist, Nelson Mullins Riley & Scarborough LLP

Resources:

Candidates’ Statements and Bios

Recording of the AALL 2017 Candidates Forum for President-Elect

Recording of the AALL 2017 Candidates Forum for the Executive Board

Q & A PERSPECTIVE: Get to Know Your 2018 AALL Executive Board Candidates, AALL Spectrum, July/August 2017.

— Joe

Senate Republicans counter Dream Act with SUCCEED Act for undocumented children

Recently, Senators Thom Tillis (R-NC) and James Lankford (R-OK) introduced the SUCCEED Act (Solution for Undocumented Children through Careers, Employment, Education and Defending our nation) [FAQ], a merit-based solution to address the legal uncertainty facing undocumented children. The SUCCEED Act includes a longer path to citizenship for DACA recipients, as compared to the Dream Act. Only after 15 years of legal status, including at least five years as a green card holder, could an applicant apply for citizenship. — Joe

Federal Courts Web Archive launched

From the announcement:

The Federal Courts Web Archive, recently launched by the Library of Congress Web Archiving Team and the Law Library of Congress, provides retrospective archival coverage of the websites of the federal judiciary. … These sites contain a wide variety of resources prepared by federal courts, such as: slip opinions, transcripts, dockets, court rules, calendars, announcements, judicial biographies, statistics, educational resources, and reference materials. The materials available on the federal court websites were created to support a diverse array of users and needs, including attorneys and their clients, pro se litigants seeking to represent themselves, jurors, visitors to the court, and community outreach programs.

This collection includes the websites of the U.S. Supreme Court, U.S. Courts of Appeals, U.S. District Courts, and U.S. Bankruptcy Courts. This collection also includes the sites of the federal judiciary’s specialty courts, including the U.S. Court of Federal Claims, U.S. Court of International Trade, U.S. Tax Court, U.S. Court of Appeals for Veterans Claims, and U.S. Court of Appeals for the Armed Forces.

H/T to Gary Price, InfoDocket. — Joe