Haider’s Mistaken Identity: Race and Class in the Age of Trump

Here’s the blurb for Asad Haider’s Mistaken Identity: Race and Class in the Age of Trump (Verso, May 15, 2018):

Whether class or race is the more important factor in modern politics is a question right at the heart of recent history’s most contentious debates. Among groups who should readily find common ground, there is little agreement. To escape this deadlock, Asad Haider turns to the rich legacies of the black freedom struggle. Drawing on the words and deeds of black revolutionary theorists, he argues that identity politics is not synonymous with anti-racism, but instead amounts to the neutralization of its movements. It marks a retreat from the crucial passage of identity to solidarity, and from individual recognition to the collective struggle against an oppressive social structure.

Weaving together autobiographical reflection, historical analysis, theoretical exegesis, and protest reportage, Mistaken Identity is a passionate call for a new practice of politics beyond colorblind chauvinism and “the ideology of race.”

— Joe

A call for legal research instruction in upper-level writing courses

Here’s the abstract for Alyson Drake’s You Can’t Write Without Research: The Role of Research Instruction in the Upper-Level Writing Requirement, 18 Fla. Coastal L. Rev. 167 (2017):

This article examines the role legal research instruction should play in the American Bar Association’s upper-level writing requirement. It argues that, despite the importance that research plays in most types of writing that students do to fill this requirement (student journal notes/comments, seminar papers, independent research papers), there is little-to-no standardized research instruction in and across law schools. Finally, the article proposes four methods that scholarly research instruction can be incorporated into the law school curriculum by utilizing law librarians and suggests why law librarians are best suited for this type of instruction.

— Joe

Answering the call for AALL consumer advocacy: 10 years after the Great Recession AALL is living up to its potential — what’s next?

The Great Recession sent AALL into a tailspin with members over consumer advocacy. Rank-and-file members’ calls for AALL to commit to consumer advocacy due to numerous complaints about price inflation and unscrupulous vendor business practices were pushed back by successive AALL executive boards during the Great Recession and its library-related aftermath, the “Shed West” (print) era, 2008-2013. Push backs? Sure, (1) the vendor liaison fiasco usurped CRIV’s traditional jurisdiction and authority; (2) the Vendor Colloquium and its (in)action plan left consumer advocacy almost entirely unaddressed and (3) the issuance of AALL’s Antitrust FAQ, our association’s stringent interpretation of antitrust rules, heavy-handedly reminded AALL members that “AALL cannot be used by any of its members as a vehicle for engaging in collective action that would be anticompetitive.” There was also the short-lived Consumer Advocacy Caucus which died on the vine due in part to the animus certain AALL executive board members had toward the group (and due to leadership changes within the caucus).

But that is in the past. Now AALL is living up to its potential in consumer advocacy. “Law librarians revolt,” said executive board member Jean O’Grady in her Dewey B Strategic post. The anticompetitive tying controversy with LexisNexis also demonstrates that our association can commit to consumer advocacy for AALL’s institutional members, the employers of firm, government and academic law librarians. AALL president Greg Lambert reminds readers that this controversy is not just about law librarians at Why Lexis’ Sales Approach Should Concern Law Firm Management and Leadership, 3 Geeks and a Law Blog, June 11, 2018 (“It is definitely an issue which those outside the law firm libraries should take notice, and be very concerned. This is something that affects the entire law firm, not just the law librarians.”)

What’s next? “[AALL legal counsel] ask[s] on behalf of AALL that representatives of LexisNexis commit to a meeting with AALL leadership, which prefers and encourages open dialogue on this issue, as opposed to legal or commercial action,” is how AALL closed its letter to LexisNexis’ CEO Mike Walsh. While AALL did not stipulate a drop-dead deadline for discussions before taking legal or commercial action, it would be wise for LN C-suite occupants to meet with the executive board members and CRIV representatives before or at AALL 2018 in Baltimore next month. It most certainly would be a good idea to conduct this meeting (and hopefully resolve the controversy) before CRIV’s annual vendor roundtable which is scheduled for July 15, 2018. Remember, all members (and vendors) are invited to attend and participate in the roundtable discussion. I bet anticompetitive tying demands by Lexis will be a hot topic at the meeting. The roundtable may also learn of questionable tying practices by other very expensive legal information vendors. As CRIV explains “This roundtable discussion can often inform CRIV’s activities for the upcoming year.” So what’s next in my opinion is that all interested AALL members attend CRIV’s vendor roundtable.  — Joe

CRIV Vendor Roundtable

Sunday, July 15

1:00 p.m.-2:00 p.m.

Hilton Key Ballroom 9

A peace treaty with North Korea?

A Peace Treaty with North Korea? (R45169, April 19, 2018) “explores the possiblity of concluding a peace treaty with North Korea. Also known as a peace settlement or peace mechanism. North Korea always wants bilateral negotiations with the United States, but a peace treaty would require China, the other signator of the armistice that ended the Korean War. The United Nations Command, or UNC, would also be involved in negotiations. In the Six-Party talks, this idea was explored but fell apart, as it was in Four-Party Talks. Japan and Russia would also be concerned with any peace settlement. South Korean president Moon Jae-in has supported the idea and will push at the upcoming Inter-Korean summit. At stake is North Korea’s nuclear and missle programs and in what sequence the DPRK would denuclearize. Which comes first: treaty or denuclearization? Trump will hold a summit with Kim Jong-un soon, where this could be broached. China and Russia want parallel tracks to denuclearize and find a peace settlement. A question is what the impact would be on U.S. alliances in the region, including the presence of the U.S. military and the troops stationed in the region. Should a peace treaty be linked to North Korea’s human rights record or other factors? How closely should it be coordinated with South Korea? What is the U.S. and DPRK credibility for a deal?”

— Joe

Amar’s Federalism Friction in the First Year of the Trump Presidency

Here’s the blurb for Vikram D. Amar’s Federalism Friction in the First Year of the Trump Presidency, 45 Hastings Constitutional Law Quarterly ___ (2018):

Over the last twelve months or so, federalism principles have been repeatedly invoked by state and local governments in a range of lawsuits and legislative proposals seeking to block or temper federal policy initiatives emanating from the new Administration of President Donald Trump. In this essay, I hope to sketch out a few of the more high-profile federalism flashpoints that have emerged over the past year or so, and offer some preliminary assessments of some of the decisions that lower courts (and legislative bodies) have been rendering in some of them. I try to highlight areas of agreement and areas of divergence. And even as to some areas of agreement, I try to explore plausible arguments to be made that the Supreme Court will (and in some cases perhaps should) see things differently as these disputes begin to make their way up the appellate ladder in the coming months and years.

— Joe

Is Twitter a public forum?

From the introduction to Sidewalks, Streets, and Tweets: Is Twitter a Public Forum? (LSB10141, May 30, 2018):

On May 23, 2018, a federal district court in New York in Knight First Amendment Institute v. Trump held that the Free Speech Clause of the First Amendment prohibited President Trump from blocking Twitter users solely based on those users’ expression of their political views. In so doing, the court weighed in on the now-familiar but rapidly evolving debate over when an online forum qualifies as a “public forum” entitled to special consideration under the First Amendment. Significantly, the district court concluded that “the interactive space for replies and retweets created by each tweet sent by the @realDonaldTrump account” should be considered a “designated public forum” where the protections of the First Amendment apply. This ruling is limited to the @realDonaldTrump Twitter account but implicates a number of larger legal issues, including when a social media account is operated by the government rather than by a private citizen, and when the government has opened up that social media account as a forum for private speech. The ability of public officials to restrict private speech on Twitter may be of particular interest to Congress, given that almost all Members now have a Twitter account.

— Joe

The altmetrics of tweets to scholarly documents

From the abstract of Stefanie Haustein’s Scholarly Twitter Metrics:

Twitter has arguably been the most popular among the data sources that form the basis of so-called altmetrics. Tweets to scholarly documents have been heralded as both early indicators of citations as well as measures of societal impact. This chapter provides an overview of Twitter activity as the basis for scholarly metrics from a critical point of view and equally describes the potential and limitations of scholarly Twitter metrics. By reviewing the literature on Twitter in scholarly communication and analyzing 24 million tweets linking to scholarly documents, it aims to provide a basic understanding of what tweets can and cannot measure in the context of research evaluation. Going beyond the limited explanatory power of low correlations between tweets and citations, this chapter considers what types of scholarly documents are popular on Twitter, and how, when and by whom they are diffused in order to understand what tweets to scholarly documents measure. Although this chapter is not able to solve the problems associated with the creation of meaningful metrics from social media, it highlights particular issues and aims to provide the basis for advanced scholarly Twitter metrics.

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

National security tariffs would require congressional approval under new bill

On June 6th, Sen. Bob Corker introduced legislation intended to restrict the president’s authority to issue national security tariffs. The bill would require the president to receive congressional approval before restricting trade on the grounds of national security. Here’s the text of the bill. — Joe

Sagi’s A Comprehensive Economic and Legal Analysis of Tying Arrangements

From the conclusion of Guy Sagi’s A Comprehensive Economic and Legal Analysis of Tying Arrangements, 38 Seattle University Law Review 1 (2014):

There is currently a gap between the economic theory and the prevailing law regarding tying arrangements. These arrangements, which used to be considered essentially harmful, have been shown to possess limited potential for harm—certainly less significant potential than was previously thought. Moreover, tying arrangements have been shown to hold the potential for great and essential benefit. This Article has presented the main accepted modern economic insights, and has proposed the appropriate legal rules for analyzing the various tying scenarios. When the tying arrangement does not lead to a significant closing of the tied product market, and so it does not affect this market’s competitive structure, the legal per se rule should be applied. In contrast, when the tying arrangement leads to a significant closing of the tied product market, the rule of reason test should be applied, but not in the format that assumes that tying arrangements in these scenarios are harmful. Rather, it should be applied in a format that requires the plaintiff to prove the existence of real potential to harm competition significantly. If the existence of harmful potential is proven, the defendant will have to prove a significant efficiency justification. Then, the onus returns to the plaintiff to show that the anticompetitive potential of the tying outweighs its procompetitive potential.

— Joe

Singapore Summit Joint Statement [text]

Here it is. — Joe

Mother Jones charts show how white, male, and conservative Trump’s judicial nominees have been

The Trump administration has installed a record-breaking number of judges, reshaping the courts for decades. Senate Republicans spent the end of Barack Obama’s term running out the clock on his picks for federal judges. So when Trump took office, he faced a nearly unprecedented number of vacant judgeships—and an opportunity to roll back gains in diversity and remake the federal courts for decades as evident in these charts, created by Mother Jones, which show white, male, and conservative Trump’s judicial nominees have been. — Joe

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

From the introduction to Overview of the Federal Government’s Power to Exclude Aliens (R44969 Sept. 27, 2017):

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

— Joe

AALL issues press release calling on LexisNexis to stop its anticompetitive tying sales policy

“This policy has a detrimental impact on every AALL member using LexisNexis. We have a responsibility to come to the aid of our members and make their voices heard.” — Greg Lambert, AALL President, June 11, 2018 press release.

After failed attempts to discuss LN’s anticompetitive tying sales policy in a substantive way, our association issued this letter to Mike Walsh, CEO of LexisNexis Legal last week. On June 11th, AALL reinforced its position by releasing this press release. Read more about it. — Joe

SCOTUS rules Ohio’s voter-roll maintenance process does not violate federal voter-registration laws

In Husted v. A. Philip Randolph Institute, No. 16-980, June 11, 2018, the Supreme Court ruled 5-4 that the process Ohio uses to remove voters on change-of-residence grounds does not violate the National Voter Registration Act. Jusice Alito wrote the opinion. Justice Thomas filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined. Justice Sotomayor filed a dissenting opinion. Here’s the opinion. — Joe

PBS creates giant timeline of everything Russia, Trump and the investigations

Connect the growing number of dot using a timeline created by PBS. Interesting. — Joe

ABA revokes Arizona Summit’s accreditation

At its meeting on May 10-12, 2018, ABA’s Council of the Section of Legal Education and Admissions to the Bar revoked Arizona Summit’s accreditation. You can read the ABA’s notice announcing its decision to pull accreditation here. The school had been previously placed on probation by the ABA back in March 2017 due to low bar pass rates.

H/T Legal Skills Prof Blog. — Joe

A catalog of arms control and nonproliferation treaties compilied by CRS

From Arms Control and Nonproliferation: A Catalog of Treaties and Agreements (RL33865, May 8, 2018):

Arms control and nonproliferation efforts are two of the tools that have occasionally been used to implement U.S. national security strategy. Although some believe these tools do little to restrain the behavior of U.S. adversaries, while doing too much to restrain U.S. military forces and operations, many other analysts see them as an effective means to promote transparency, ease military planning, limit forces, and protect against uncertainty and surprise. Arms control and nonproliferation efforts have produced formal treaties and agreements, informal arrangements, and cooperative threat reduction and monitoring mechanisms.

— Joe

Take Care Blog’s Analysis of Emoluments Issues & Cases

Take Care presents its coverage of all emoluments issues & cases in a single post. They organized their analysis into the following categories:

  • History & Theory of Emoluments
  • CREW Lawsuit
  • Maryland & DC Lawsuit
  • Members of Congress Lawsuit
  • Examples of Corruption & Emoluments
  • Citizen Activism & Emoluments

Recommended. — Joe

Towards a narrative theory of statutory interpretation and judicial justification

Here’s the abstract for Randy Gordon’s Making Meaning: Towards a Narrative Theory of Statutory Interpretation and Judicial Justification, 2 Ohio State Bus. L.J. _____ (2017):

The act of judging is complex involving finding facts, interpreting law, and then deciding a particular dispute. But these are not discreet functions: they bleed into one another and are thus interdependent. This article aims to reveal—at least in part—how judges approach this process. To do so, I look at three sets of civil RICO cases that align and diverge from civil antitrust precedents. I then posit that the judges in these cases base their decisions on assumptions about RICO’s purpose. These assumptions, though often tacit and therefore not subject to direct observation, are nonetheless sometimes revealed when a judge narrates legislative history. I conclude by remarking that a narrative theory of interpretation and justification may have universal relevance.

— Joe

Political lawyering and clinical education

Here’s the abstract for Deborah N. Archer’s Political Lawyering for the 21st Century (2018):

Legal education purports to prepare the next generation of lawyers capable of tackling the urgent and complex social justice challenges of our time. But law schools are failing in that public promise. Clinical education offers the best opportunity to overcome those failings by teaching the skills lawyers need to tackle systemic and interlocking legal and social problems. But too often even clinical education falls short: it adheres to conventional pedagogical methodologies that are overly narrow and, in the end, limit students’ abilities to manage today’s complex racial and social justice issues. This article contends that clinical education needs to embrace and reimagine political lawyering for the 21st century in order to prepare aspiring lawyers to tackle both new and chronic issues of injustice through a broad array of advocacy strategies.

— Joe