Here is the abstract for Jack Balkin’s The First Amendment in the Second Gilded Age (Buffalo Law Review, 2019 Forthcoming):

How do we pay for the digital public sphere? In the Second Gilded Age, the answer is primarily through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unlimited freedom to speak in exchange for the right to surveil and manipulate end users.

To protect freedom of speech in the Second Gilded Age we must distinguish the values of free speech from the judicially created doctrines of the First Amendment. That is because the practical freedom to speak online depends on a privately owned and operated infrastructure of digital communication to which the First Amendment does not apply. As a result, the protection of digital free expression has increasingly begun to detach from the judicial doctrines of the First Amendment. This makes the First Amendment increasingly irrelevant to protecting digital speech. Indeed, in the Second Gilded Age, the judicially created doctrines of First Amendment law become most important as potential obstacles to reform. They create constitutional difficulties for attempts to regulate private infrastructure owners in order to protect free speech values and personal privacy.

Protecting freedom of speech in the Second Gilded Age requires us to focus on the political economy of digital speech: how we pay for the digital public sphere, the dangers the digital political economy creates for end users, and the kinds of reforms that would best protect their interests in speech and privacy.

This essay uses the Facebook/Cambridge Analytica scandal of March 2018 to explain how the conditions that make free speech possible have changed from the twentieth to the twenty-first centuries. That controversy is a characteristic scandal of the Second Gilded Age because it centers on how digital infrastructure companies make their money and how they affect the public sphere in the process. The scandal also highlights a central problem for freedom of speech in the Second Gilded Age: Digital privacy undergirds our freedom of expression, but the way we pay for freedom of expression perpetually threatens our digital privacy and subjects us to dangers of manipulation and overreaching.

The great irony is that an era that promised unbounded opportunities for freedom of expression is also an era of increasing digital control and surveillance. The same technological advances allow both results. The essay concludes by briefly introducing a reform proposal advocated in my previous work: that we should consider digital media companies as information fiduciaries who have duties of care, confidentiality, and loyalty toward their end users.

In his 14 page opinion as a minute order in Cliffords v. Trump, the federal judge dismissed the claim of Stormy Daniels (a/k/a Stephanie Clifford) against President Trump for defamation. The complaint alleged that Trump “made his statement either knowing it was false, had serious doubts about the truth of his statement, or made the statement with reckless disregard for its truth or falsity.” The judge, however, found “Mr. Trump’s statement constituted ‘rhetorical hyperbole’ that is protected by the First Amendment.”

H/T to Constitutional Law Prof Blog

Following up on this LLB report, the Tennessee Higher Education Commission voted 8-5 to reject the proposed transfer of Valparaiso’s law school to Middle Tennessee State University. Nashville Public Radio has the details:

The biggest critics of the transfer came from lawyers and law schools in Memphis and Knoxville, where the state’s only other public law schools are located. Comments generally regarded concerns of a watered down law school market for the state, since Nashville is already home to three law schools — Belmont University, Vanderbilt University and Nashville School of Law. Another school in the city, many said, would take away from other schools’ ability to compete, even if it’s a public option. And with higher education excellence often tied to career attainment outcomes, it would also saturate an already dense legal labor market, they said. MTSU’s transfer of a law school would make it even more difficult for law school graduates to find work.”

From the press release:

In the first analysis of its kind in 2018, the Brennan Center’s Voting Laws Roundup shows that lawmakers in eight states have introduced at least 16 bills making it harder to vote, and 35 restrictive bills in 14 states have carried over from previous legislative sessions. If passed, the laws would increase restrictions on voter registration and limit early and absentee voting opportunities, among other changes.

Legislatures in 22 states are considering a combined total of at least 144 bills that would expand access to voting, and in 23 states and the District of Columbia lawmakers are considering 263 bills that carried over from the previous session. This includes legislation to automate the voter registration process, a reform with bipartisan backing that increases voter turnout, along with accuracy and security of voter rolls. There are also bills to expand opportunities to register, restore voting rights to people with past criminal convictions, reduce the burden of existing voter ID laws, and more.

“Today we are remaking how we cover the legal market,” wrote Bloomberg BNA editor in chief Cesca Antonelli in a recent email to employees announcing a major corporate reorganization and 46 staff layoffs. “The five groups that produce the bulk of Bloomberg Law news products will become two: one focused on beat reporting and one focused on what we are calling legal intelligence,” according to the email. As observed in Stumbling Toward Digital-only Legal Publishing, we have been dealing with the effects of the lead-up to this reorganization.

H/T to Jean O’Grady’s Dewey B Strategic post.

Randy J. Kozel has posted Special Justifications, 33 Constitutional Commentary 471 (2018), on SSRN. Here is the abstract:

The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices have described as fundamental.

From the blurb for Enemy of the People: Trump’s War on the Press, the New McCarthyism, and the Threat to American Democracy (Brookings Institution, Sept. 25, 2018) by Marvin Kalb:

In Enemy of the People, Marvin Kalb, an award-winning American journalist with more than six decades of experience both as a journalist and media observer, writes with passion about why we should fear for the future of American democracy because of the unrelenting attacks by the Trump administration on the press.

In the legal information marketplace two of our very expensive vendors are tying print acquisitions to digital licenses – LexisNexis in the general law market and Bloomberg Law in the specialty law market.  Is this the beginning of an industry-wide digital-only legal publishing movement?

Right now Fastcase and Casemaker are the only digital-only legal information providers in the marketplace but Bloomberg Law, which was digital-only until it acquired BNA, has explained to CRIV that it is moving in that direction and has been for about two years. LexisNexis started tying print to digital in the law firm marketplace about two years ago while offering no explanation to CRIV about its publishing strategy. No word or deed from Thomson Reuters in the general law market. Ditto Wolters Kluwer in the specialty market.  At least not yet.

Our very expensive legal information providers are stumbling towards a digital-only publishing model. Being digital-only is inevitable, I think, but the transition doesn’t have to be chaotic. Some best practices can be identified by mistakes BLaw and LexisNexis have already made. They include eliminating ambush-style sales policies like when a company (e.g., LexisNexis) drops bombshell take-it-or-leave-it demands during contract renewal talks without any advance notice or explanation.  Print sunsetting plans should be specific unlike when a company (e.g., BLaw) offers the continuation of print subscriptions without identifying when the print edition of affected titles will be eliminated.

Going digital-only happens only once. Since our very expensive legal information providers and our BigLaw library colleagues are heading in that direction, the rest of us must be prepared to follow. Resistance is futile. However, vendors can help law libraries make the transition by detailing their plans like Thomson Reuters did at the launch of Westlaw Edge by informing current Westlaw subscribers that Westlaw will be phased out in 2024. This is not a time for the typical dynamic — vendors act, law libraries react.


H/T to Above the Law for calling attention to the 3-day strike by law students across the country starting today. From The Chronicle:

More than 30 organizations, many of them chapters of the National Lawyers Guild and groups like Democratic Socialists of America, had endorsed the strike as of Tuesday afternoon. Participants hail from at least 12 law schools, including those at American, Emory, and George Washington Universities and the Universities of Miami, Richmond, and Southern California. Law students are also organizing at Duke and Rutgers Universities and the Universities of Denver and North Carolina at Chapel Hill, according to the guild, a progressive legal organization.

See the student movement’s website.

From the press release:

The governing boards of Middle Tennessee State University and Valparaiso University have endorsed the transfer of Valparaiso’s law school to the Murfreesboro campus, leaders from both institutions announced Wednesday, Oct. 10.

MTSU’s Board of Trustees approved an agreement outlining the transfer, as well as a recommendation to create a College of Law and establish a Juris Doctor degree, at a special Oct. 10 meeting. The vote followed approval of the document last week by Valparaiso’s Board of Directors.

The proposal now goes to the Tennessee Higher Education Commission for consideration.

21-year-old Joshua Browder, creator of the chatbot DoNotPay, just released a series of free apps designed to help consumers solve common legal problems without the help of a lawyer such as filing small claims lawsuits in any US jurisdication. Plus DoNotPay has acquired Visabot to help individuals obtain visas and green cards. Bob Ambrogi interviewed Browder in his latest LawNext podcast.

Chief Justice Roberts has referred 15 complaints related to statements Justice Kavanaugh made during his confirmation hearing to the 10th Circuit for investigation according to the Washington Post. The allegations center on whether Kavanaugh was dishonest and lacked judicial temperament during his Senate testimony. These complaints were initially received by the U.S. Court of Appeals prior to Kavanaugh’s seating on the Supreme Court. Chief Judge Merrick Garland recused himself from the matter. Here’s the text of the letter from Chief Justice Roberts referring Kavanaugh complaints to the 10th Circuit.

From the blurb for P. W. Singer and Emerson Brooking, LikeWar: The Weaponization of Social Media (Eamon Dolan/Houghton Mifflin Harcourt, Oct. 2, 2018):

P. W. Singer and Emerson Brooking tackle the mind-bending questions that arise when war goes online and the online world goes to war. They explore how ISIS copies the Instagram tactics of Taylor Swift, a former World of Warcraft addict foils war crimes thousands of miles away, internet trolls shape elections, and China uses a smartphone app to police the thoughts of 1.4 billion citizens. What can be kept secret in a world of networks? Does social media expose the truth or bury it? And what role do ordinary people now play in international conflicts?

Delving into the web’s darkest corners, we meet the unexpected warriors of social media, such as the rapper turned jihadist PR czar and the Russian hipsters who wage unceasing infowars against the West. Finally, looking to the crucial years ahead, LikeWar outlines a radical new paradigm for understanding and defending against the unprecedented threats of our networked world.

Policy and Legislative Research for Congressional Staff: Finding Documents, Analysis, News, and Training (R43434, Mar. 28, 2018)  “is intended to serve as a finding aid for congressional documents, executive branch documents and information, news articles, policy analysis, contacts, and training, for use in policy and legislative research. … This report is not intended to be a definitive list of all resources, but rather a guide to pertinent subscriptions available in the House and Senate in addition to select resources freely available to the public. This report is intended for use by congressional staff and will be updated as needed.”

The Intergovernmental Panel on Climate Change released a report, suggesting that we are currently on track for around 3 degrees Celsius of warming caused by greenhouse gas emissions. The authors found that if greenhouse gas emissions continue at the current rate, the atmosphere will warm up by as much as 2.7 degrees Fahrenheit (1.5 degrees Celsius) above preindustrial levels by 2040, inundating coastlines and intensifying droughts and poverty. The IPCC authors promise that we will see coastal cities swallowed by the sea, global food shortages, and $54 trillion in climate-associated costs as soon as 2040.

Here’s the links to the report and its Summary for Policymakers. See also these Intercept and NYT articles.

Disinformation, ‘Fake News’ and Influence Campaigns on Twitter analyzed more than 10 million tweets from 700,000 Twitter accounts that linked to more than 600 fake and conspiracy news outlets. Crucially, the study compares fake and conspiracy news both before and after the election, allowing us to measure how the fake news ecosystem has evolved since November 2016. The study, commissioned by the Knight Foundation, found that Twitter is still rife with “fake news” a month out from the 2018 midterms, with more than 80 percent of the accounts that regularly spread misinformation in 2016 still active. The study found that those accounts together still publish upward of a million tweets a day.

Social Media Adoption by Members of Congress: Trends and Congressional Considerations (R45337, Oct. 9, 2018) examines Member adoption of social media broadly. Because congressional adoption of long-standing social media platforms Facebook, Twitter, and YouTube is nearly ubiquitous, this report focuses on the adoption of other, newer social media platforms. These include Instagram, Flickr, and Google+, which have each been adopted by at least 2.5% of Representatives and Senators. Additionally, Members of Congress have adopted Snapchat, Medium, LinkedIn, Pinterest, Periscope, and Tumblr at lower levels. This report evaluates the adoption rates of various social media platforms and what the adoption of multiple platforms might mean for an office’s social media strategy. Data on congressional adoption of social media were collected by an academic institution in collaboration with the Congressional Research Service during the 2016-2017 academic year.

From the National Conference of State Legislatures announcement: The Maine State Law and Legislative Reference has created the Law and Legislative Digital Library (LLDL) and other digitization projects that has expanded and streamlined access to huge volumes of the library’s most requested information. These accomplishments demonstrate the library’s commitment to excellent service and its values of teamwork, resourcefulness, and creativity. Library staff follows well-documented, efficient processes and every staff member contributes.

The Maine State Law and Legislative Reference Library has 12 staff members representing 159 years of service to the Maine Legislature that have made numerous contributions to professional library associations including the Law Librarians of New England, the American Association of Law Libraries, the Maine Library Association, the Maine State Bar Association, and the Law Librarians of New England. It has agreed to host the 2019 NCSL LRL professional development seminar and has sent participants to the seminar in 2015 and 2017. The library’s reference staff meets annually with visiting NCSL representatives and regularly contributes to the LRL listserv.