SCOTUS Notes transcribes notes written by Supreme Court justices during conference meetings

SCOTUS Notes is the newest crowdsourcing project under the Zooniverse platform originated at the University of Minnesota. “In this project, members of the public transcribe handwritten notes from U.S. Supreme Court justices. Unlike members of Congress, justices cast their votes in complete privacy during weekly conference meetings. Only justices are allowed in the Chief Justice’s conference room when they discuss, deliberate, and make initial decisions on cases that focus on some of the nation’s most pressing legal issues. The only record of what has been said, and by whom, is provided by the handwritten personal notes the justices themselves take during conference. These crucial documents detail the discussions and debates that took place in thousands of cases spanning multiple decades.”

The project is seeking volunteers. Interesting. H/T to beSpacific. — Joe

Bibliography of CRS reports on mass shootings

CRS produces several reports on issues relevant to mass shootings such as yesterday’s Florida school shooting. These issues include mass murder with firearms, firearms regulation, domestic terrorism, and hate crime. For a list, see Mass Shootings and Terrorism: CRS Products (June 24, 2016 R44520). — Joe

CRS report: U.S. Family-Based Immigration Policy

From the overview of U.S. Family-Based Immigration Policy (Feb. 9, 2018 R43145):

Family reunification has historically been a key principle underlying U.S. immigration policy. It is embodied in the Immigration and Nationality Act (INA), which specifies numerical limits for five family-based immigration categories, as well as a per-country limit on total family-based immigration. The five categories include immediate relatives (spouses, minor unmarried children, and parents) of U.S. citizens and four other family-based categories that vary according to individual characteristics such as the legal status of the petitioning U.S.-based relative, and the age, family relationship, and marital status of the prospective immigrant.

Those who favor expanding family-based immigration by increasing the annual numeric limits point to the visa queue of approved prospective immigrants who must wait years separated from their U.S.-based family members until they receive a visa. Others question whether the United States has an obligation to reconstitute families of immigrants beyond their nuclear families and favor reducing permanent immigration by eliminating certain family-based preference categories. Arguments favoring restricting certain categories of family-based immigration reiterate earlier recommendations made by congressionally mandated immigration reform commissions.

— Joe

Beyond the text but not beyond the law: The law of legal interpretation

From the abstract for The Law of Interpretation, 130 Harvard Law Review 1079 (2017), by William Baude and Stephen E. Sachs:

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document’s meaning or a drafter’s intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting legal rules. These rules tell us what legal materials to read and how to read them. Like other parts of the law, what we call “the law of interpretation” has a claim to guide the actions of judges, officials, and private interpreters — even if it isn’t ideal. We argue that legal interpretive rules are conceptually possible, normatively sensible, and actually part of our legal system.

This Article thus reframes the theory of statutory and constitutional interpretation, distinguishing purely linguistic questions from legal questions to which language offers no unique answer. It also has two concrete implications of note. It provides a framework for analyzing the canons of interpretation, determining whether they are legally valid and how much authority they bear. And it helps resolve debates over constitutional “interpretation” and “construction,” explaining how construction can go beyond the text but not beyond the law.

Interesting. — Joe

Who falls for fake news?

From the abstract for Gordon Pennycook and David G. Rand’s Who Falls for Fake News? The Roles of Analytic Thinking, Motivated Reasoning, Political Ideology, and Bullshit Receptivity:

Fake news represents a particularly egregious and direct avenue by which inaccurate beliefs have been propagated via social media. Here we investigate the cognitive psychological profile of individuals who fall prey to fake news. We find a consistent positive correlation between the propensity to think analytically – as measured by the Cognitive Reflection Test (CRT) – and the ability to differentiate fake news from real news (“media truth discernment”). This was true regardless of whether the article’s source was indicated (which, surprisingly, also had no main effect on accuracy judgments). Contrary to the motivated reasoning account, CRT was just as positively correlated with media truth discernment, if not more so, for headlines that aligned with individuals’ political ideology relative to those that were politically discordant. The link between analytic thinking and media truth discernment was driven both by a negative correlation between CRT and perceptions of fake news accuracy (particularly among Hillary Clinton supporters), and a positive correlation between CRT and perceptions of real news accuracy (particularly among Donald Trump supporters). This suggests that factors that undermine the legitimacy of traditional news media may exacerbate the problem of inaccurate political beliefs among Trump supporters, who engaged in less analytic thinking and were overall less able to discern fake from real news (regardless of the news’ political valence). We also found consistent evidence that pseudo-profound bullshit receptivity negatively correlates with perceptions of fake news accuracy; a correlation that is mediated by analytic thinking. Finally, analytic thinking was associated with an unwillingness to share both fake and real news on social media. Our results indicate that the propensity to think analytically plays an important role in the recognition of misinformation, regardless of political valence – a finding that opens up potential avenues for fighting fake news.

— Joe

Who is the most notorious Cooley Law School grad?

My vote goes to Trump’s personal attorney Michael Cohen. According to Wikipedia, he is a Cooley Law grad. I wonder if he has donated $130,000 to the school’s scholarship fund. — Joe

Why haven’t publishers apologized for their books that glorify slavery and Jim Crow

Remnants of the Confederacy and the years of segregation that followed can be found on the bookshelves of libraries around the United States. In their Fortune Feb. 2, 2018 op-ed piece, Why Haven’t Publishers Apologized for Their Books That Glorify Slavery?, Alfred Brophy and Autumn Barrett identify books published in the twentieth century by publishers still in existence that supported Jim Crow. They write

These books set in motion ideas that constrained our nation’s vision of race and law and continue to cast a long shadow over our nation’s narratives of race and equality. Those who were educated on such ideas held power for decades, institutionalizing their visions and methods, and training generations of scholars. The presses that are responsible for putting these ideas into the stream of public consciousness owe an acknowledgment of their complicity. Moreover, an excavation of these books, and their contemporary uses, can shed light on the legacies of Confederate ideologies of the past, and we may recognize the echoes of their words in the present.

Recommended. — Joe

The law of cyber interference in elections

The Law of Cyber Interference in Elections by Jacqueline Van De Velde “explores the international legal framework that apples to cyber interference in elections. It makes the normative argument that stretching countermeasures to encompass cyber episodes is not only wrong, but also dangerous. Unless modern understanding of sovereignty and the norm of non-intervention are updated for a networked age, countermeasures represent an impermissible expansion of the use of force.” — Joe

ProPublica and WNYC Studios launch 12-episode ‘Trump, Inc.’ podcast series

The first episode in the 12-episode podcast series, produced ProPublica and WNYC Studios, grapples with conflicts of interest by starting at the very beginning: the January 11, 2017 press conference when Trump announced how he would handle potential conflicts of interest as both President and the owner of the Trump Organization.

According to ProPublica’s announcement, upcoming episodes with include (1) the record fines a Trump casino received around money laundering; (2) stories on the company’s foreign deals and financing; (3) a look into the Russian money trail; and much more.

Here’s the link to the Trump, Inc. podcast series. — Joe

The (Not So) Plan Meaning Rule

From the abstract for William Baude and Ryan Doerfler’s The (Not So) Plain Meaning Rule, 84 University of Chicago Law Review 539 (2017):

When should a court interpreting some statutory provision consider information besides the text—legislative history, surrounding provisions, practical consequences, the statute’s title, etc.? This might be one of the most asked questions of statutory interpretation.

One recurring answer in the Court’s cases is the “plain meaning rule,” which is something of a compromise. If the statute’s meaning is “plain,” the other information can’t be considered. If it isn’t plain, the information comes in. The rule seems to make obvious sense as an intermediate position between strict textualism and some form of pragmatism.

And yet, once we think a little more deeply about the plain meaning rule, we ought to see that its basic structure is puzzling. Information that is relevant shouldn’t normally become irrelevant just because the text is clear. And vice versa: irrelevant information shouldn’t become useful just because the text is less than clear. We can sketch some conditions under which this puzzling structure could be justified, but we highly doubt that they could justify the plain meaning rule in its current form.

— Joe

CRS report: Resolutions to Censure the President: Procedure and History

From the introduction to Resolutions to Censure the President: Procedure and History (Feb. 1, 2018 R45087):

Censure is a reprimand adopted by one or both chambers of Congress against a Member of Congress, President, federal judge, or other government official. While Member censure is a disciplinary measure that is sanctioned by the Constitution (Article 1, Section 5), non-Member censure is not. Rather, it is a formal expression or “sense of” one or both houses of Congress. As such, censure resolutions targeting non-Members use a variety of statements to highlight conduct deemed by the resolutions’ sponsors to be inappropriate or unauthorized.

Resolutions that attempt to censure the President for abuse of power, ethics violations, or other behavior, are usually simple resolutions. These resolutions are not privileged for consideration in the House or Senate. They are, instead, considered under the regular parliamentary mechanisms used to process “sense of” legislation.

H/T to beSpacific. For links to additional CRS reports on this topic, see the LLB post. — Joe

Simon Fodden, 1944 – 2018

A pioneer in Canadian law blogging, Slaw founder Simon Fodden passed away on Feb. 10, 2018. Here’s the link to his obit on Slaw by Steve Matthews. — Joe

CRS report: The Federal Grand Jury

From the introduction to The Federal Grand Jury (May 7, 2015 95-1135):

The federal grand jury exists to investigate crimes against the United States and to secure the constitutional right of grand jury indictment. Its responsibilities require broad powers.

As an arm of the U.S. District Court which summons it, upon whose process it relies, and which will receive any indictments it returns, the grand jury’s subject matter and geographical jurisdiction is that of the court to which it is attached.

As a general rule, the law is entitled to everyone’s evidence. Witnesses subpoenaed to appear before the grand jury, therefore, will find little to excuse their appearance. Once before the panel, however, they are entitled to benefit of various constitutional, common law and statutory privileges including the right to withhold self-incriminating testimony and the security of confidentiality of their attorney-client communications. They are not, however, entitled to have an attorney with them in the grand jury room when they testify.

The grand jury conducts its business in secret. Those who attend its sessions other than witnesses may disclose its secrets only when the interests of justice permit.

Unless the independence of the grand jury is overborne, irregularities in the grand jury process ordinarily will not result in dismissal of an indictment, particularly where dismissal is sought after conviction.

The concurrence of the attorney for the government is required for the trial of any indictment voted by the grand jury. In the absence of such an endorsement or when a panel seeks to report, the court enjoys narrowly exercised discretion to dictate expungement or permit distribution of the report.

— Joe

How YouTube’s algorithm distorts reality: The Guardian’s video explainer

The 2016 presidential race was fought online in a swamp of disinformation, conspiracy theories and fake news. A Guardian investigation has uncovered evidence suggesting YouTube’s recommendation algorithm was disproportionately prompting users to watch pro-Trump and anti-Clinton videos. See Paul Lewis’s ‘Fiction is outperforming reality’: how YouTube’s algorithm distorts truth, The Guardian, Feb. 2, 2018 for details. — Joe

Is a ‘marketplace for ideas’ an illusion?

From the abstract for Claudio Lombardi’s The Illusion of a ‘Marketplace for Ideas’: “Our behaviour on the internet is continuously monitored and processed through the elaboration of big data. Complex algorithms categorize our choices and personalise our online environment, which is used to propose, inter alia, bespoke news and information. It is in this context, that the competition between sources of information in the ‘market for ideas’, takes place. While these mechanisms bring efficiency benefits, they also have severe downsides that only very recently we have begun to uncover. These drawbacks regard not only deadweight losses caused by market distortions, but also public policy issues, in particular in case of politically relevant news. What are the public and private interest concerns impacted by this practice? Can this algorithm-driven selection of news be captured by competition laws? The digital news market, as constructed around online advertising, presents peculiarities which necessitate a reframing of standard approaches to traditional information markets, and of the creation and distribution of ideas.”

H/T to Media Law Prof blog. — Joe

Thomson Reuters’ US Print revenue continues to decline: TRI Q4 and full-year financial results

From the Feb. 8, 2018 press release for Thomson Reuters’ Q4 and full-year financials:

Q4 results for Legal:

Revenues increased 1% to $881 million.
•Recurring revenues grew 3% (75% of total)
•US Print revenues declined 7% (14% of total)
•Transactions revenues declined 1% (11% of total)

Adjusted EBITDA increased 6% to $314 million and the margin increased to 35.6% from 34.3% due to the impact of the severance charges incurred in the fourth quarter of 2016.
•In constant currency and excluding the severance charges from the prior-year period, adjusted EBITDA declined 3% and the margin decreased by 150 basis points.

Full-year results for Legal:

Revenues increased 1% to $3.4 billion.
•Recurring revenues grew 3% (76% of total)
•US Print revenues declined 6% (13% of total)
•Transactions revenues declined 6% (11% of total)

Adjusted EBITDA increased 4% to $1.3 billion and the margin increased to 37.7% from 36.6%. The increase was driven by the impact of severance charges incurred in the fourth quarter of 2016, higher revenues and savings from ongoing simplification initiatives.
•In constant currency and excluding the severance charges from the prior year, adjusted EBITDA was up 2% and the margin increased 30 basis points.

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law?

For an answer to the post title’s question, see Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I, 65 Stanford Law Review 901 (2013) and Part II, 66 Stanford Law Review ___ (2014) by Abbe R. Gluck and Lisa Schultz Bressman. Here’s the abstract for Part I:

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.

All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how “neutral” some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.

Recommended. — Joe

Weekend reading: The Unmaking of the President 2016: How FBI Director James Comey Cost Hillary Clinton the Presidency

From Kirkus Review for The Unmaking of the President 2016: How FBI Director James Comey Cost Hillary Clinton the Presidency (Scribner Feb. 6, 2018) by Lanny J. Davis: “According to Davis … the negative effect is indisputable, and he has the data, compiled both before and well after the election, to back up his claims. While he occasionally tumbles into legal jargon, he provides compelling criticism of the FBI, the New York Times, and others.” — Joe

CRS report: Temporary Protected Status: Overview and Current Issues

Here’s the abstract for the CRS report Temporary Protected Status: Overview and Current Issues (Jan. 17, 2018 RS20844):

When civil unrest, violence, or natural disasters erupt in countries around the world, concerns arise over the ability of foreign nationals in the United States from those countries to safely return. Provisions exist in the Immigration and Nationality Act (INA) to offer temporary protected status (TPS) and other forms of relief from removal under specified circumstances. The Secretary of Homeland Security has the discretion to issue TPS for periods of 6 to 18 months and can extend these periods if conditions leading to TPS designation do not change. Congress has also provided TPS legislatively. A foreign national who is granted TPS receives a registration document and employment authorization for the duration of a given TPS designation.

The United States currently provides TPS to approximately 437,000 foreign nationals from 10 countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen. TPS for Guinea, Liberia, and Sierra Leone expired in May 2017, but certain Liberians maintain relief under an administrative mechanism known as Deferred Enforced Departure (DED). Since September 2017, the Secretary of Homeland Security has announced plans to terminate TPS for four countries—El Salvador, Haiti, Nicaragua, and Sudan—and extend TPS for South Sudan. No decision about Honduras was made by the statutory deadline in November 2017, thus automatically extending that country’s designation for six months.

There is ongoing debate about whether migrants who have been living in the United States for long periods of time with TPS should receive a pathway to legal permanent resident (LPR) status. In addition, Venezuela’s political and economic strife have prompted some U.S. lawmakers to call for its designation for TPS.

— Joe

Inside the black box of agency statutory interpretation in the rulemaking context

From the abstract for Christopher J. Walker’s Inside Agency Statutory Interpretation, 67 Stanford Law Review 999 (2015):

This Article looks inside the black box of agency statutory interpretation in the rulemaking context. The Article reports the findings of a 195-question survey of agency rule drafters at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (the Federal Communications Commission and the Federal Reserve). Of the 411 officials sent the survey, 128 responded, and their answers shed considerable light on the tools and approaches they use to interpret statutes and draft regulations. The findings uncovered challenge some theories on agency interpretation while reinforcing others. As Congress, courts, and scholars gain more insight into how federal agencies use the canons, legislative history, and judicial deference doctrines in agency statutory interpretation, the relationship between Congress and federal agencies should improve, as should the judicial branch’s ability to monitor and faithfully constrain lawmaking by regulation.

— Joe