Fordham Law launches 25th Amendment Archive

Marking the 50th anniversary of the 25th Amendment to the Constitution, Fordham Law School has launched the 25th Amendment Archive. The archive marks the 50th anniversary of the amendment to the U.S. Constitution, which deals with presidential succession. Many of the archive’s materials are unavailable elsewhere. “The archive offers an interactive timeline of the history and events that prompted Congress to create the amendment, which provides legal mechanisms for handling presidential inabilities and filling vice presidential vacancies. In addition, the archive provides access to the legal and scholarly discourse on the 25th Amendment since its ratification on February 10, 1967.”

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

Solum: “Our world is already inhabited by AIs. Our law is already composed of artificial meanings. The twain shall meet.”

The title of this post comes from the conclusion of Lawrence Solum’s Artificial Meaning, 89 Washington Law Review 69 (2014). Here’s a snip:

As time goes on, it seems likely that the proportion of legal content provided by AIs will grow in a fairly organic and gradual way. Indeed, the first time a human signs a contract that was generated in its entirety by an AI, the event might even escape our notice. It seems quite likely that our parsing of artificial meanings generated by AIs will simply be taken for granted. This will be no accident. Today, our social world is permeated by artificial legal meanings. Indeed, we can already begin to imagine a world in which the notion of a legal text authored by a single natural person begins to seem strange or antiquated.

Our world is already inhabited by AIs. Our law is already composed of artificial meanings. The twain shall meet.

Here’s the abstract for this very interesting essay:

This Essay investigates the concept of artificial meaning, meanings produced by entities other than individual natural persons. That investigation begins in Part I with a preliminary inquiry into the meaning of “meaning,” in which the concept of meaning is disambiguated. The relevant sense of “meaning” for the purpose of this inquiry is captured by the idea of communicative content, although the phrase “linguistic meaning” is also a rough equivalent. Part II presents a thought experiment, The Chinese Intersection, which investigates the creation of artificial meaning produced by an AI that creates legal rules for the regulation of a hyper-complex conflux of transportation systems. The implications of the thought experiment are explored in Part III, which sketches a theory of the production of communicative content by AI. Part IV returns to The Chinese Intersection, but Version 2.0 involves a twist — after a technological collapse, the AI is replaced by humans engaged in massive collaboration to duplicate the functions of the complex processes that had formerly governed the flow of automotive, bicycle, light-rail, and pedestrian traffic. The second thought experiment leads in Part V to an investigation of the production of artificial meaning by group agents — artificial persons constituted by rules that govern the interaction of natural persons. The payoff of the investigation is presented in Part VI. The communicative content created by group agents like constitutional conventions, legislatures, and teams of lawyers that draft complex transactional documents is artificial meaning, which can be contrasted with natural meaning — the communicative content of those exceptional legal texts that are produced by a single individual. This insight is key to any theory of the interpretation and construction of legal texts. A conclusion provides a speculative meditation on the implications of the new theory of artificial meaning for some of the great debates in legal theory.

Recommended. — Joe

California bill would extend and strengthen sanctuary cities protections statewide

From the Legislative Counsel’s digest of SB 54:

This bill would, among other things and subject to exceptions, prohibit state and local law enforcement agencies, including school police and security departments, from using resources to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, as specified. The bill would require, by April 1, 2018, the Attorney General, in consultation with the appropriate stakeholders, to publish model policies limiting assistance with immigration enforcement to the fullest extent possible for use by public schools, public libraries, health facilities operated by the state or a political subdivision of the state, and courthouses, among others. The bill would require all public schools, health facilities operated by the state or a political subdivision of the state, and courthouses to implement the model policy, or an equivalent policy. The bill would state that all other organizations and entities that provide services related to physical or mental health and wellness, education, or access to justice, including the University of California, are encouraged to adopt the model policy. The bill would require, every 6 months, that a law enforcement agency that chooses to participate in a joint law enforcement task force, as defined, submit a report pertaining to task force operations to the Department of Justice, as specified. The bill would require the Attorney General, by March 1, 2019, and twice a year thereafter, to report on the types and frequency of joint law enforcement task forces, and other information, as specified, and to post those reports on the Attorney General’s Internet Web site. The bill would require the Board of Parole Hearings or the Department of Corrections and Rehabilitation, as applicable, to notify United States Immigration and Customs Enforcement of the scheduled release on parole or post-release community supervision, or rerelease following a period of confinement pursuant to a parole revocation without a new commitment, of all persons confined to state prison serving a current term for the conviction of a violent or serious felony, or who has a prior conviction for a violent or serious felony.

— Joe

Data’s intangibility challenges traditional international law on jurisdiction

Here’s the abstract for Kristen Eichensehr’s Data Extraterritoriality:

Data’s intangibility poses significant difficulties for determining where data is located. The problem is not that data is located nowhere, but that it may be located anywhere, and at least parts of it may be located nearly everywhere. And access to data does not depend on physical proximity.

These implications of data’s intangibility challenge traditional international law on jurisdiction. International jurisdictional rules rest in large part on States’ sovereignty over a particular territory and authority over people and things within it, and they presuppose that the location of people and things are finite and knowable. The era of cloud computing — where data crosses borders seamlessly, parts of a single file may exist in multiple jurisdictions, and data’s storage location often depends on choices by private companies — raises new and difficult questions for States exercising enforcement authority, companies receiving requests from law enforcement agencies, and individuals seeking to protect their privacy.

As a part of the Texas Law Review’s symposium on the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, this Essay critiques Tallinn 2.0’s rules and commentary on the international law governing jurisdiction, especially its treatment of extraterritorial jurisdiction. The Essay first describes the Manual’s rules and commentary on extraterritorial jurisdiction, and then raises a procedural objection to the Manual’s approach, namely that ongoing debates about how to determine data’s location make the law too unsettled for a restatement project. The Essay then highlights several substantive concerns with and questions raised by the Manual’s approach. In light of these critiques, the Essay concludes with some suggestions on how to make progress in resolving conflicting international claims to jurisdiction over data going forward.

— Joe

GPO’s updated official institutional history highlights adoption of 21st century digital technologies

The 2016 edition of Keeping America Informed: The U.S. Government Publishing Office: A Legacy of Service to the Nation, 1861-2016 describes GPO’s transition from traditional monotype and linotype printing to the digital technology of the 21st Century. Highlights include the role the agency has played in the production and dissemination of federal Government information, from the Emancipation Proclamation, to the Warren Commission and 9/11 Commission Reports, to the latest in secure passport and smart card technologies. Its authoritative text and engaging images depict the dedication of its employees, past and present, GPO’s critical contribution to all federal organizations, Congress, and to the well-being of the American people. Download PDF version. — Joe

What artificial intelligence reveals about the First Amendment

Here’s the abstract for SIRI-OUSLY 2.0: What Artificial Intelligence Reveals about the First Amendment, 101 Minnesota Law Review 2481 (2017) by Toni M. Massaro, Helen L. Norton and Margot E. Kaminski:

The First Amendment may protect speech by strong Artificial Intelligence (AI). In this Article, we support this provocative claim by expanding on earlier work, addressing significant concerns and challenges, and suggesting potential paths forward.

This is not a claim about the state of technology. Whether strong AI — as-yet-hypothetical machines that can actually think — will ever come to exist remains far from clear. It is instead a claim that discussing AI speech sheds light on key features of prevailing First Amendment doctrine and theory, including the surprising lack of humanness at its core.

Courts and commentators wrestling with free speech problems increasingly focus not on protecting speakers as speakers but instead on providing value to listeners and constraining the government’s power. These approaches to free speech law support the extension of First Amendment coverage to expression regardless of its nontraditional source or form. First Amendment thinking and practice thus have developed in a manner that permits extensions of coverage in ways that may seem exceedingly odd, counterintuitive, and perhaps even dangerous. This is not a feature of the new technologies, but of free speech law.

The possibility that the First Amendment covers speech by strong AI need not, however, rob the First Amendment of a human focus. Instead, it might encourage greater clarification of and emphasis on expression’s value to human listeners — and its potential harms — in First Amendment theory and doctrine. To contemplate — Siri-ously — the relationship between the First Amendment and AI speech invites critical analysis of the contours of current free speech law, as well as sharp thinking about free speech problems posed by the rise of AI.

Very interesting. — Joe

Kerr: How to Read a Legal Opinion: A Guide for New Law Students

Orin Kerr’s How to Read a Legal Opinion: A Guide for New Law Students, 11 The Green Bag 2d 51 (2007) celebrates the 10th anniversay of its publication in The Green Bag. It should be required reading during the first week of 1Ls’ law school careers. — Joe

Two LGBTQ-rights groups respond to Trump’s transgender ban with lawsuit (Complaint)

The National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD) filed the suit, Doe v. Trump, in response to President Donald Trump’s recent tweets calling for a full ban on transgender people serving in the United States military. The complaint, which can be viewed here, rests on claims of equal protection, due process and estoppel, based on the inequity of the reversal of military policy after thousands of service members followed protocol and informed their chain of command that they are transgender. — Joe

City of Chicago sues DOJ over sanctuary cities conditions (Text of Complaint)

On July 25, 2017, the DOJ announced that it will no longer award criminal justice grants to cities and states that refuse to cooperate with  federal agents in detaining undocumented immigrants. This week, the City of Chicago sued the DOJ over the Department’s new conditions. [Text of Complaint] See Sanctuary jurisdictions will only receive DOJ criminal justice grant funds if cities and states cooperate in detaining undocumented immigrants, LLB, July 27, 2017.

In his Constitutional Law Prof Blog post, Steven D. Schwinn writes “Chicago challenges DOJ-added conditions on the Byrne Justice Assistance Grant program that, it says, exceed DOJ authority, violate federalism principles, and interfere with the City’s long-standing and effective Welcoming Policy, now codified as the Welcoming City Ordinance.” — Joe

Katz: Can Law Librarians Help Law Become More Data Driven ? An Open Question in Need of a Solution

Here’s the link to IIT/Chicago Kent College of Law Professor Daniel Martin Katz’ stack. H/T to beSpacific. — Joe

Some severe weather can be attributed to climate change now according to draft Trump Administration report

A draft report by scientists from 13 federal agencies was leaked to the New York Times. Perhaps it was leaked because the report contradicts Trump’s climate-change-denying position including the critique that the ability to predict the effects of human contributions to climate change is limited. This report concludes that we are feeling the effects of climate change right now. For more, see Lisa Friedman, Government Report Finds Drastic Impact of Climate Change on U.S., NYT, Aug. 7, 2017. Here’s the link to the report. Wonder if it will be officially released or buried by the Trump Administration. — Joe

A more rigorous approach to case briefing

In A More Rigorous Approach to Teaching the Reasoning Portion of Case Analysis: A Key to Developing More Competent Law Students, Edwin S. Fruehwald argues that LR&W programs superficially teach students how to analyze a holding for case briefing assignments. Fruehwald presents a more rigorous approach to case analysis, by including in the reasoning section the types of reasoning (rule-based reasoning, reasoning by analysis, distinguishing cases, policy-based reasoning, synthesis) a judge is using and how the judge employs these types of reasoning to obtain the holding. Recommended for 1Ls. — Joe

New bill, if passed, would offer Congressional internships to recent law school grads

Drafted by four senators along with Larry Kramer, former Dean of Stanford Law School; Robin West, law professor at Georgetown University Law Center; Bill Treanor, Dean of Georgetown University Law Center; Abbe Gluck, law professor at Yale Law School; and Dakota Rudesill, law professor at Ohio State, S. 1604, A bill to establish the Daniel Webster Congressional Clerkship Program, was introduced in the US Senate on July 20, 2017. It is intended to attract law school grads to learn more about the legislative process. From the bill’s statement of Congressional findings:

(1) Each year, many of the most talented law school graduates in the United States begin their legal careers as judicial law clerks.

(2) The judicial clerkship program has given the judiciary access to a pool of exceptional young lawyers at a relatively low cost.

(3) These same lawyers then go on to become leaders of their profession, where they serve a critical role in helping to educate the public about the judiciary and the judicial process.

(4) The White House, the administrative agencies of the executive branch, the Administrative Office of the United States Courts, the Federal Judicial Center, and the United States Sentencing Commission all operate analogous programs for talented young professionals at the outset of their careers.

(5) Congress is without a similar program.

(6) At a time when our Nation faces considerable challenges, Congress and the public would benefit immeasurably from a program, modeled after the judicial clerkship program, that engages the brightest young lawyers in the Nation in the legislative process.

Hope the bill passes. — Joe

Ensuring the President ‘shall take Care that the Laws be faithfully executed’: Update on the emoluments litigation

“Ensuring the President ‘shall take Care that the Laws be faithfully executed'” is the mission of Take Care. Recently, Take Care complied a list of its coverage of all emoluments issues addressed by the bloggers at Take Care. The posts are divided into six topical categories:

  1. History & Theory of Emoluments
  2. CREW Lawsuit
  3. Maryland & DC Lawsuit
  4. Members of Congress Lawsuit
  5. Examples of Corruption & Emoluments
  6. Citizen Activism & Emoluments

Here’s the link. Recommended.

Last Friday,  Citizens for Responsibility & Ethics in Washington (CREW), the plaintiffs in CREW v. Trump, filed their brief opposing President Trump’s motion to dismiss. CREW’s filing explains how the President is violating both of the Emoluments Clauses, and why the plaintiffs’ claims against him must be decided on the merits. Text of the brief and related materials. — Joe

Inside the mind of Donald J. Trump, the 45th President of the United States

The Washington Post has published purloined transcripts of Trump conversations with foreign leaders. Get a glimpse of Trump’s thought process, values and personal political agenda here. — Joe

Collateral consequences of Senator and House members indicted for or convicted of a felony

Two CRS reports analyze the status of Senators and Members of the House who have been indicted for or convicted of a felony. See Status of a Senator Who Has Been Indicted for or Convicted of a Felony (April 2, 2015, RL34716) and Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony (May 8, 2014, RL33229). — Joe

Weekend reading: The End of White Christian America

After a long life spanning nearly two hundred and forty years, White Christian America — a prominent cultural force in the nation’s history — has died. … Although examiners have not been able to pinpoint the exact time of death, the best evidence suggests that WCA finally succumbed in the latter half of the first decade of the twenty-first century. The cause of death was determined to be a combination of environmental and internal factors — complications stemming from major demographic changes in the country, along with religious disaffiliation as many of its younger began to doubt WCA’s continued relevance in a shifting cultural environment. … WCA is survived by two principal branches of descendants: a mainline Protestant family residing primarily in the Northeast and upper Midwest and an evangelical Protestant family living mostly in the South. — Robert P. Jones, The End of White Christian America, 1-3 (2016).

“Quite possibly the most illuminating text for this election year is how Sam Tanenhaus for The New York Times Book Review characterized Robert P. Jones’ The End of White Christian America (Simon & Schuster, 2016). From the blurb:

Drawing on more than four decades of polling data, The End of White Christian America explains and analyzes the waning vitality of WCA. Robert P. Jones argues that the visceral nature of today’s most heated issues—the vociferous arguments around same-sex marriage and religious and sexual liberty, the rise of the Tea Party following the election of our first black president, and stark disagreements between black and white Americans over the fairness of the criminal justice system—can only be understood against the backdrop of white Christians’ anxieties as America’s racial and religious topography shifts around them.

Beyond 2016, the descendants of WCA will lack the political power they once had to set the terms of the nation’s debate over values and morals and to determine election outcomes. Looking ahead, Jones forecasts the ways that they might adjust to find their place in the new America—and the consequences for us all if they don’t.

Highly recommended. — Joe

Who is Stephen Miller?

At 31, Stephen Miller is less than half President Trump’s age but he serves as the president’s senior advisor for policy. His credentials include having served as a press secretary to Tea Party movement supporters Congresswoman Michele Bachmann and Congressman John Shadegg and communications director for then-Alabama senator, Attorney General Jeff Sessions. He is credited with authoring the president’s inaugural address and being the chief architect of Trump’s executive order restricting immigration from several Muslim-majority Middle Eastern countries.

The best profile piece on Miller I found was written by Julia Ioffee in Politico (June 27, 2016). Here are a couple of snips:

He’s deeply connected to some of the most powerful insurgent threads in the Washington GOP, most notably Alabama Senator Jeff Sessions and the Breitbart media machine. As an aide on Capitol Hill, he was a behind-the-scenes architect of the successful effort to kill comprehensive immigration reform in 2014. And while it’s hard to gauge how much Trump is amenable to influence by anyone—at least, by anyone that he didn’t beget—there is no question that Miller is deep, and serious, on the one question that most drives Trump’s unlikely campaign.


But Miller also cuts a deeply unsettling figure, even to many in his own party. His nine-year career working for some of the most politically fringe figures on the Hill—he also worked for Michele Bachmann and helped David Brat in his primary defeat of Eric Cantor—was preceded by a trail of writings and provocations that go all the way back to high school, one that has raised the eyebrows of even conservative Republicans.

Ioffee adds in her Politico article, The Believer: How Stephen Miller went from obscure Capitol Hill staffer to Donald Trump’s warm-up act—and resident ideologue:

There is something eerily vintage about Miller’s stump speeches. The combination of their substance—vilifying immigrants as killers, the promise of nativist glory days ahead—and their delivery with a calm face around a loud, droning mouth, slicked-back hair and sharp suit, floridly invoking powerful cabals against the people: All of it harks back to an earlier time. It’s as if the video should be in black and white, and the microphone in front of Miller an antique, metallic affair. This is an image Miller assiduously cultivates, smoking like a chimney and dressing in suits that earned him the nickname “Mad Men” on the Hill. “You almost want to put him in a previous era,” says Marcus Peacock, who worked with Miller on the Senate Budget Committee.

Finally, an excerpt from yesterday’s White House press conference involving Stephen Miller and a first-generation American born of Cuban immigrants, Jim Acosta of CCN may be insightful. [Transcript here] — Joe


Trump supports most significant change in immigration law since passage of the Immigration and Nationality Act of 1965

Yesterday, President Trump came out in support of Reforming American Immigration for Strong Employment Act or the RAISE Act, S. 354. If passed, the RAISE Act would cut immigration in half in 10 years and ratchet up immigration eligibility requirements such as giving preference to skilled younger applicants who speak English as a second language. If passed, the RAISE Act would be the most significant change to immigration law since the passage fo the Immigration and Nationality Act of 1965. See Let’s Move Beyond Russia, White House Turmoil, Etc: President Trump pushes to sharply cut the number of legal immigrants and move U.S. to a “merit-based” immigration system on ImmigrationProf Blog for more information. — Joe

How to remove a crazy president from the White House

Did you ever think you would read a title from a mainstream news magazine like this one: How to Remove a Crazy President From the White House (Newsweek, Aug. 1, 2017)? For Newsweek, Jeff Stein reports on the Commission on Presidential Capacity Act, HR 1987, introduced in April by Representative Jamie Raskin (D-Md), a constitutional scholar and law professor. Stein wrote:

Raskin introduced a bill to create a constitutional mechanism for removing a president from office if he were nuts wrote Stein. “Of course, ‘nuts’ wasn’t in the bill; the more genteel language is ‘mentally incapacitated.’ But in the weeks since then, ‘nuts’ has been increasingly whispered as a diagnosis for the 45th president’s behavior.”

Stein opines that the bill has virtually “no chance of passing, of course. For starters, Raskin is a freshman Democrat in a Republican Congress. He has only 27 cosponsors, none of them Republicans. Legal scholars have also dismissed it as unrealistic and ‘premature.’” But this isn’t the only bill introduced in this Congress that strives to provide a constitutional mechanism to remove a sitting president who is temporarily or permanently incapacitated. Rep. Earl Blumenauer (D-Oregon) has introduced HR 2093, the Strengthening and Clarifying the 25th Amendment Act of 2017 to deal with presidential disability. [LLB post]

“or of such body as Congress may by law provide.” Both bills strive to create a constitutional mechanism under Article 4 of the 25th Amendment which states:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Emphasis added.

Under HR 2093, the Strengthening and Clarifying the 25th Amendment Act of 2017, each former living President and each former living Vice President shall constitute such body to carry out Article 4, except any such individual who has been impeached by the House of Representatives and convicted by the Senate or who is serving as President or Vice President at the time of the declaration of incapacity is made. [LLB post]

HR 1986, the Commission on Presidential Capacity Act, would establish an 11 member commission to carry out Article 4: (a) two members appointed by the majority leader of the Senate; (b) two members appointed by the minority leader of the Senate; (c) two members appointed by the Speaker; (d) two members appointed by the minority leader of the House; (e) two members, one Republican and one Democrat, and each of whom has served as President, Vice President, Secretary of State, Attorney General, Secretary of the Treasury, Secretary of Defense, or Surgeon General; and (f) one member, serving as Commission chair, appointed by a simple majority vote of the 10 other appointed members.

Twitter is full of rumors that unnamed members of Congress, Democrats and Republicans are quietly supportive of using the 25th Amendment as the means to remove President Trump without having to go through the national agony of impeachment proceedings. Creating an Article 4 commission might be more realistic then expecting “the Vice President and a majority of either the principal officers of the executive departments” to decide on their own that the President is not fit to serve the office.

Determining presidential disability. The 25th Amendment offers no constitutional guidance on the standards to be used to determine presidential incapacity.  But in Burden of Decision: Judging Presidential Disability Under the Twenty-Fifth Amendment, 30 Journal of Law and Politics 97 (2014), [LLB post] Daniel J. T. Schuker offers an approach to understanding, classifying, and assessing cases of presidential disability by distinguishing between (1) persistent or temporary physiological incapacity; (2) persistent or temporary logistical incapacity; (3) persistent or temporary physiological impairment; and (4) persistent or temporary logistical impairment. The article appears to be a good framework for discussing presidential disability under the 25th Amendment when someone other than a sitting president is making that determination. — Joe