What happens when five Supreme Court justices can’t agree?

What Happens When Five Supreme Court Justices Can’t Agree? (LSB10113, Apr. 5, 2018) begins by discussing the current doctrinal framework for determining what opinion should govern when no opinion commands a majority vote. The Sidebar then explores the facts and issues involved in Hughes before examining Hughes’s potential impact. — Joe

Oregon is second state to protect net neutrality by statute [text]

Following Washington State’s landmark move last month, Oregon’s governor signed House Bill 4155 into law to attempt to protect net neutrality. Legal challenges are expected. — Joe

Bots in the Twittersphere

Pew Internet estimates two-thirds of tweeted links to popular websites are posted by automated accounts. Among the key findings of this research:

  • Of all tweeted links to popular websites, 66% are shared by accounts with characteristics common among automated “bots,” rather than human users.
  • Among popular news and current event websites, 66% of tweeted links are made by suspected bots – identical to the overall average. The share of bot-created tweeted links is even higher among certain kinds of news sites. For example, an estimated 89% of tweeted links to popular aggregation sites that compile stories from around the web are posted by bots.
  • A relatively small number of highly active bots are responsible for a significant share of links to prominent news and media sites. This analysis finds that the 500 most-active suspected bot accounts are responsible for 22% of the tweeted links to popular news and current events sites over the period in which this study was conducted. By comparison, the 500 most-active human users are responsible for a much smaller share (an estimated 6%) of tweeted links to these outlets.
  • The study does not find evidence that automated accounts currently have a liberal or conservative “political bias” in their overall link-sharing behavior. This emerges from an analysis of the subset of news sites that contain politically oriented material. Suspected bots share roughly 41% of links to political sites shared primarily by conservatives and 44% of links to political sites shared primarily by liberals – a difference that is not statistically significant. By contrast, suspected bots share 57% to 66% of links from news and current events sites shared primarily by an ideologically mixed or centrist human audience.

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

C-SPAN’s searchable transcript of Zuckerberg’s Senate hearing

H/T to beSpacific for locating the Zuckerberg transcript — Joe

CRS on theories, tools and trends in statutory interpretation

From the introduction to Statutory Interpretation: Theories, Tools, and Trends (R45153, Apr. 5, 2018):

The two main theories of statutory interpretation — purposivism and textualism — disagree about how judges can best adhere to this ideal of legislative supremacy. The problem is especially acute in instances where it is unlikely that Congress anticipated and legislated for the specific circumstances being disputed before the court. While purposivists argue that courts should prioritize interpretations that advance the statute’s purpose, textualists maintain that a judge’s focus should be confined primarily to the statute’s text.

Regardless of their interpretive theory, judges use many of the same tools to gather evidence of statutory meaning. First, judges often begin by looking to the ordinary meaning of the statutory text. Second, courts interpret specific provisions by looking to the broader statutory context. Third, judges may turn to the canons of construction, which are presumptions about how courts ordinarily read statutes. Fourth, courts may look to the legislative history of a provision. Finally, a judge might consider how a statute has been—or will be—implemented. Although both purposivists and textualists may use any of these tools, a judge’s theory of statutory interpretation may influence the order in which these tools are applied and how much weight is given to each tool.

This report begins by discussing the general goals of statutory interpretation, reviewing a variety of contemporary as well as historical approaches. The report then briefly describes the two primary theories of interpretation employed today, before examining the main types of tools that courts use to determine statutory meaning. The report concludes by exploring developing issues in statutory interpretation.

— Joe

“The Board will be gathering more facts in order to determine how to effectively respond” to LexisNexis’ tying ultimatum

We have been reporting on recent LexisNexis tie-in attempts wherein the Company refuses to sell print or ancillary products in retaliation for cancelling Lexis Advance as if this may be a new company sales policy. Initially I thought a rogue LN sales rep may have created the reported situation involving a large law firm in Texas. Having now heard confidentially about similar tie-in negotiations, I and I have no doubt other invoice-paying law librarians are interested in finding out what is going on and what we are going to do about this to support member institutions. So is our association’s Executive Board.

At last week’s meeting, the Executive Board heard a request from CRIV to issue “a statement of disapproval of the LexisNexis policy.” Instead of issuing the statement, the Executive Board has decided to gather “more facts in order to determine how to effectively respond” according to AALL Member News for the Week of April 9, 2018. No word on who is performing the investigation, when it will commence and conclude, whether the results will be reported to the membership in a timely manner, and what AALL will do with the results of its investigation.

OK, our association isn’t exactly known for its consumer advocacy efforts on behalf of all institutional members but I hope AALL’s statement means that it will solicit additional information, this time from all law librarians who have been confronted with LN’s tie-in ultimatum. If your law library has been the recipient of LN’s ultimatum, I think the best people to inform right now are the members of CRIV. The more instances of similar negotiations, the better.

Let’s not let LexisNexis get away with giving the Executive Board the same sort of “answers” the Company gave CRIV when CRIV asked LN three times for an explanation. Here they are:

First attempted explanation — “Our pricing is different in each market and varies depending on which products and solutions work best for each customer. Accordingly, we sit down with customers and explain the pricing for their firm, including what products are sold together and which are sold separately. If any of your readers want to discuss, we are happy to do so directly with them.”

Second attempted explanation — “Keep in mind that Lexis has been selling integrated products as a package with Online for many years with notable examples such as Lexis Search Advantage, Lexis for Microsoft Office, Verdict and Settlement Analyzer, Profile Suite, LN Publisher, and Digital Library. As we retire Lexis.com this year, and upgrade users to Lexis Advance, we will more fully leverage our
platform that consolidates all content and tools to one ecosystem. This affords considerable benefits to users including being able to navigate seamlessly between products, have answer sets surfaced across products, and gain access into the central Online content repository, that formerly would have been restricted by product.”

Third attempted explanation — “It is impossible for us to answer this specific question with a blanket statement since all markets have unique pricing plans suited to buying preferences. What does apply at a broad level is that we are continuing to integrate products into Lexis Advance where all global content and tools will be housed and maintained to the highest level of accuracy and currentness. We are
exploring pricing and packaging options that offer a seamless experience across products and access to related answer sets not possible with satellite products. Please refer to related information provided in the LexisNexis/CRIV conference posted on CRIV Blog, Dec. 20, Again, If any readers wish to discuss, we encourage them to contact their account team directly.”

I call BS.

Hopefully, our association will aggressively pursue what may be the most serious complaint about LexisNexis in at least a decade. — Joe

Zuckerberg’s prepared statement for Congress [text]

Ahead of two days of congressional testimony, Facebook CEO Mark Zuckerberg’s prepared statement can be read here. — Joe

Computer science and law: a new paradigm

Here’s the abstract for James Miller’s The Emergence of ‘Computer Science and Law’: The New Legal Paradigm for Law and Policy Practice in the Computational Age of Algorithmic Reasoning and Big Data Practice:

Some thirty years ago “law and economics” emerged as a new paradigm of legal reasoning by providing new legal resolutions to a set a problems that were particularly suited to the application of economics in the legal process. Today algorithms and data, software-based systems, and technology solutions like blockchain both stress existing legal practice and offer new avenues for solving legal problems. This paper proposes that the rise of “computer science and law” as a new legal paradigm is emerging in ways that leverage and respond to the application and ability of computer science knowledge and reasoning to answer novel and venerable legal problems.

The paper’s analytic approach maps the boundaries of law and computer science in this new paradigm, against the stressors that necessitate new approaches with the value of technology solutions already revolutionizing other sectors. The paper answers questions such as what is persuasive or explanatory about law, what social function does it serve, and how is legal reasoning distinctive from philosophy, sociology, economics, and computer science? Following this analytic approach, the paper presents the current evolution of legal pedagogy, practice, and expectations and contributes to a deeper comparative understanding of how law can serve important social goals.

The paper begins with a definitional section. Descriptions from jurisprudence and legal theory provide a baseline of how philosophy and social sciences differentiate “law” from other disciplines, based on the nature of the reasoning, justifications, outcomes and knowledge that law entails. Leveraging what is distinctive about legal reasoning and knowledge, a historical review of computer and data science and artificial intelligence provides a view of the evolution of reasoning and knowledge is modeled using software to accomplish tasks relevant to law.

The paper explores how legal practice is evolving to challenges and opportunities posed by computational systems. The paper reviews the “legalhacker” movement that began as a software programming and policy advocacy effort and other “computation law” examples of innovations in law and policy practice, and focus on technology policy issues. A survey of new legal pedagogy focused on teaching data science, software programming and other technical skills reveals a roadmap of computer science skillsets and techniques that are a current focus for legal educators. Review and comparisons of the information technology response of “legaltech” with “fintech” IT innovations focused on finance or other sectors will reveal the relative trends and strengths observed in the space.

Finally, two analytic approaches are proposed for evaluating the strength of new technology tools and law and policy practice approaches. A set of key features identify metrics for evaluating automating legal reasoning systems ability to predict, explain, and defend legal decisions. A roadmap of technical skills and areas of focus for new law and policy practitioners provide a useful rubric for development of new practice groups, outsourcing and IT strategies, and legal training focused on “computer science and law” practice.

Whether the challenge of legal practice in administrative law with comment dockets numbering in the tens of millions, protecting fundamental legal principles in practices using complex software systems controlling the fate of defendants, or improving and expanding access to law and policy services, the paper describes the expanding role of computer science and law and a path forward for legal practitioners in the computational age.

Interesting. — Joe

LexBlog seeks to expand number of blogs as it prepares to launch news and commentary network

Back in January LexBlog appointed Bob Ambrogi publisher and editor-in-chief. Now Bob announces that LexBlog is opening participation in the network to any legal blogger, without cost and without regard to whether the blog is hosted on the LexBlog platform. LexBlog, by the way, is preparing to launch a global news and commentary network based on content from its legal blogs. — Joe

The List: A Week-by-Week Reckoning of Trump’s First Year

Here’s the blurb for Amy Siskind’s The List: A Week-by-Week Reckoning of Trump’s First Year (Bloomsbury Publishing, Mar. 27, 2018):

In the immediate aftermath of Donald Trump’s election as president, Amy Siskind, a former Wall Street executive and the founder of The New Agenda, began compiling a list of actions taken by the Trump regime that pose a threat to our democratic norms. Under the headline: “Experts in authoritarianism advise to keep a list of things subtly changing around you, so you’ll remember” Siskind’s “Weekly List” began as a project she shared with friends, but it soon went viral and now has more than half a million viewers every week.

Compiled in one volume for the first time, The List is a first draft history and a comprehensive accounting of Donald Trump’s first year. Beginning with Trump’s acceptance of white supremacists the week after the election and concluding a year to the day later, we watch as Trump and his regime chips away at the rights and protections of marginalized communities, of women, of us all, via Twitter storms, unchecked executive action, and shifting rules and standards. The List chronicles not only the scandals that made headlines but just as important, the myriad smaller but still consequential unprecedented acts that otherwise fall through cracks. It is this granular detail that makes The List such a powerful and important book.

Recommended. — Joe

Blockchain and the Law: The Rule of Code

From the blurb for Primavera De Filippi and Aaron Wright’s Blockchain and the Law: The Rule of Code (Harvard UP, Apr. 9, 2018):

A general-purpose tool for creating secure, decentralized, peer-to-peer applications, blockchain technology has been compared to the Internet itself in both form and impact. Some have said this tool may change society as we know it. Blockchains are being used to create autonomous computer programs known as “smart contracts,” to expedite payments, to create financial instruments, to organize the exchange of data and information, and to facilitate interactions between humans and machines. The technology could affect governance itself, by supporting new organizational structures that promote more democratic and participatory decision making.

Primavera De Filippi and Aaron Wright acknowledge this potential and urge the law to catch up. That is because disintermediation―a blockchain’s greatest asset―subverts critical regulation. By cutting out middlemen, such as large online operators and multinational corporations, blockchains run the risk of undermining the capacity of governmental authorities to supervise activities in banking, commerce, law, and other vital areas. De Filippi and Wright welcome the new possibilities inherent in blockchains. But as Blockchain and the Law makes clear, the technology cannot be harnessed productively without new rules and new approaches to legal thinking.

Recommended. — Joe

Federal judge upholds 1998 Massachusetts assault weapons ban [text]

Holding that the firearms and large magazines banned by the state in 1998 are “not within the scope of the personal right to ‘bear Arms’ under the Second Amendment,” U.S. District Judge William Young decided that Massachusetts was within its rights since the ban passed directly through elected representatives. Text of Worman v. Baker, 1:17-cv-10107, Decided April 6, 2016, U.S. District Court, District of Massachusetts. — Joe

3 Geeks get a makeover

Say “hello” again to the three intrepid geeks who blog at the freshly redesigned 3 Geeks and a Law Blog, now hosted on the LexBlog platform. — Joe

Weekend reading: The Trump White House: Changing the Rules of the Game

Here’s a snip from the blurb for Ronald Kessler’s The Trump White House: Changing the Rules of the Game (Crown Forum, Apr. 3, 2018):

Based on exclusive interviews with the president and his staff, The Trump White House: Changing the Rules of the Game tells the real story of what Donald Trump is like, who influences him, how he makes decisions, what he says about the people around him, and how he operates when the television lights go off, while portraying the inside story of the successes that have already brought solid results as well as the stumbles that have turned off even longtime supporters and undercut his agenda.

Some insights from the book:

  • Trump aides Ivanka Trump and her husband Jared Kushner have been responsible for Trump’s most disastrous decisions. Trump is aware that his daughter and son-in-law are problems and has hinted to them that they should go back to New York. Seeing Jared on TV, Trump said, “Look at Jared, he looks like a little boy, like a child.”
  • First Lady Melania Trump has a tremendous impact on policy and strategy. She sits in on meetings and is widely admired by aides for her judgment.
  • Kellyanne Conway is the No. 1 White House leaker
  • Trump calls certain reporters directly, feeding them stories attributed to “a senior White House official,” creating the impression that the White House leaks even more than it already does.

— Joe

A best practices guide to integrating social science methodologies to improve corpus design and analysis

From James Cleith Phillips and Jesse Egbert’s Advancing Law and Corpus Linguistics: Importing Principles and Practices from Survey and Content-Analysis Methodologies to Improve Corpus Design and Analysis __ BYU Law Review __ (2017): “The nascent field of law and corpus linguistics has much to offer legal interpretation. But to do so it must more fully incorporate principles from survey and content analysis methodologies used in the social sciences. Importing such will provide greater rigor, transparency, reproducibility and accuracy in the important quest to determine the meaning of the law. This paper highlights some of those principles to provide a best-practices guide to those seeking to perform law and corpus linguistic analysis.” — Joe

House committee markups manual

A principal responsibility of House committees is to conduct markups, to select legislation to consider, to debate it and vote on amendments to it (to mark up), and to report recommendations on passage to the House. House Committee Markups: Manual of Procedures and Procedural Strategies (R41083 Mar. 27, 2018) examines procedures and strategy related to committee markups and provides sample procedural scripts. — Joe

At 1:00 PM CDT Friday, AALL may decide to issue a “statement of disapproval” over one very expensive legal information provider’s tie-in negotiating tactics

Yesterday I reported that CRIV has been unsuccessful in attempting to resolve a dispute involving LexisNexis and a large law firm in Texas over LexisNexis’ refusal to sell its print products unless the firm renewed its Lexis Advance license. (Since then I have heard about how LexisNexis has coerced other law libraries using the same negotiations tactic.). At 1:00 PM CDT Friday, the Executive Board will consider CRIV’s recommendation that AALL issue “a statement of disapproval of the LexisNexis policy.” If issued, what should the statement say?

How about a strongly worded condemnation of what may be anti-competitive tying because (1) two separate products or services are involved, (2) the sale or agreement to sell one is conditioned on the purchase of the other, (3) the seller has sufficient economic power in the market for the tying product to enable it to restrain trade in the market for the tied product, and (4) a not insubstantial amount of interstate commerce in the tied product is affected. Enumerating the elements of a per se violation of antitrust law might be a good start for advocating for our institutional membership base. — Joe

Pasquale on the automated public sphere

The Automated Public Sphere (Nov. 8, 2017) by Frank Pasquale “first describes the documented, negative effects of online propagandists’ interventions (and platforms’ neglect) in both electoral politics and the broader public sphere (Part I). It then proposes several legal and educational tactics to mitigate platforms’ power, or to encourage or require them to exercise it responsibly (Part II). The penultimate section (Part III) offers a concession to those suspicious of governmental intervention in the public sphere: some regimes are already too authoritarian or unreliable to be trusted with extensive powers of regulation over media (whether old or new media), or intermediaries. However, the inadvisability of extensive media regulation in disordered societies only makes this agenda more urgent in well-ordered societies, lest predictable pathologies of the automated public sphere degrade their processes of democratic will formation.”

— Joe

Does the shape of the Supreme Court’s bench affect oral argument?

In Chief Justice Burger and the Bench: How Physically Changing the Shape of the Court’s Bench Reduced Interruptions during Oral Argument, ___ Journal of Supreme Court History ___ (Mar. 2018), Ryan Black, Timothy Johnson and Ryan Owen report on their empiricial study which concludes that the change from a straight bench to a curved bench improved oral arguments because justices were less likely to interrupt each other. — Joe

First sentence handed down in Mueller probe

Dutch national Alex van der Zwaan become the first person sentenced in special counsel Robert Mueller’s Russia investigation. On Tuesday in federal court in Washington, having pleaded guilty to lying to federal agents, van der Zwaan was sentenced to 30 days in prison for lying to investigators about contacts with ex-Trump aide Rick Gates. For more, see this BBC report. — Joe