FISA reauthorization needed by end of December

On December 30, 2012, President Obama signed H.R. 5949, the Foreign Intelligence Surveillance Act (FISA) Amendments Act Reauthorization Act of 2012, which extended Title VII of FISA until December 31, 2017. Two bills that amend and reauthorize Title VII are currently pending in Congress:

  • S. 2010, the FISA Amendments Reauthorization Act of 2017, as reported by the Senate Select Committee on Intelligence on October 25, 2017, S. Rept. 115-182; and
  • H.R. 3989, the USA Liberty Act of 2017, as ordered to be reported by the House Judiciary Committee on November 8, 2017.

Summaries of the provisions of S. 2010 and H.R. 3989, organized by general topic, along with brief descriptions of current law relevant to the proposed legislation are provided in this CRS memorandum. — Joe

States are about to start running out of CHIP funding while Congress considers reauthorization

So far Congress has failed to reauthorize funding for the Children’s Health Insurance Program, or CHIP, a federal-state initiative that covers about nine million lower-income kids. Within weeks, states will start running out of money, leaving them scrambling to patch the holes in their budgets or forced to suspend their programs and drop coverage. For pending legislation, see Comparison of the Bills to Extend State Children’s Health Insurance Program (CHIP) Funding (Nov. 3, 2017 R44989). More generally, for a CRS report describing the basic elements of CHIP, focusing on how the program is designed, who is eligible, what services are covered, how enrollees share in the cost of care, and how the program is financed see State Children’s Health Insurance Program: An Overview (Apr. 23, 2015 R43627). — Joe

Categorizing Trump and his administration

“The key to Trump’s essential meaning, to his mode of politics and type of government, lies in the obvious elements of his crony capitalist worldview, business dynasty, and close cadre of advisors and cabinet members drawn from his family and his financial peers,’ wrote Timothy Kuhner in his thoughtful essay, American Kleptocracy: How to Categorize Trump and His Government (2017). King’s Law Journal, Vol. 28, No. 2, p. 201-238 (2017). Here’s the abstract:

Even after just one year’s worth of events, the Trump Presidency is proving extraordinarily difficult to pin down. Prominent concerns rightly center on racism, sexism, xenophobia, the rule of law, Russian election interference with collusion from within the Trump campaign itself, the obstruction of justice, the fracturing of both dominant political parties, nuclear war, and the global rise of authoritarian populism. Is there any defining element to this presidency, which so justly raises all of these concerns? President Trump’s election has proven similarly difficult to pin down, essentially for the same reason — the presence of a host of factors, all with a bearing on the result. Sorting through the evidence about Trump’s election and his presidency thus far, this article suggests, quite simply, that money and greed are at the heart of it all. Rather than a moral argument, however, this article elaborates a descriptive, legal argument from within the law of democracy that there is a corrupt system of government operating beneath all of the surface-level chaos. Trump’s personal expenditures on his election campaign, conflicts of interest, foreign emoluments, cabinet choices, and legislative proposals all suggest the emergence of a kleptocracy. This article develops kleptocracy as a legal category applicable to the United States today: a system of government that goes beyond interest-group plutocracy in order to tailor law and policy to the economic interests of the political leadership itself, in this case President Trump, his family members, advisors, and cabinet members.

— Joe

CRS releases report examining the net neutrality debate

From the summary of The Net Neutrality Debate: Access to Broadband Networks (Nov. 22, 2017 R40616):

As congressional policymakers continue to debate telecommunications reform, a major discussion point revolves around what approach should be taken to ensure unfettered access to the Internet. The move to place restrictions on the owners of the networks that compose and provide access to the Internet, to ensure equal access and nondiscriminatory treatment, is referred to as “net neutrality.” While there is no single accepted definition of “net neutrality,” most agree that any such definition should include the general principles that owners of the networks that compose and provide access to the Internet should not control how consumers lawfully use that network, and they should not be able to discriminate against content provider access to that network.

The FCC’s move to reexamine its existing open Internet rules has reopened the debate over whether Congress should consider a more comprehensive measure to amend existing law to provide greater regulatory stability and guidance to the FCC. Whether Congress will choose to address more comprehensive legislation to amend the 1934 Communications Act, to provide a broad-based framework for such regulation, remains to be seen.

— Joe

CBO analysis of GOP’s tax plan

From the summary of the CBO’s Reconciliation Recommendations of the Senate Committee on Finance:

The staff of the Joint Committee on Taxation (JCT) estimates that enacting the legislation would reduce revenues by about $1,633 billion and decrease outlays by $219 billion over the 2018-2027 period, leading to an increase in the deficit of $1,414 billion over the next 10 years. A portion of the changes in revenues would be from Social Security payroll taxes, which are off-budget. Excluding the estimated $27 billion increase in off-budget revenues over the next 10 years, JCT estimates that the legislation would increase on-budget deficits by about $1,441 billion over the period from 2018 to 2027.

For an analysis see this Washington Post story. — Joe

New milestone reached in law firm/corporate law information budgets

According to AALL’s 2017 Biennial Salary Survey & Organizational Characteristics, total information budgets increased substantially for government and law firm/corporate law libraries but not academic law libraries when compared to the 2015 survey results. Government libraries’ information budget increased 31% and law firm/corporate law libraries’ information budgets increased 26%. Academic law libraries’ information budgets were flat.

Electronic information budgets as a percent of total information budgets essentially was unchanged for government law libraries in 2017 at 35%. Not so for other market segments. Electronic information budgets as a percent of total information budget rose 16% for law schools, from 38% in 2015 to 44% of total information budgets in 2017. Law firm/corporate law libraries’ electronic information budgets rose 9%, from 69% to a record 75% of total information budgets in 2017. No time in the history of AALL’s biennial surveys has a market segment reached this 75% milestone. Is the end of this substitution trend in sight? I have my doubts. — Joe

Google’s Role in Spreading Fake News and Misinformation

H/T to Legal Skills Prof Blog for calling attention to Google’s Role in Spreading Fake News and Misinformation by Danaë Metaxa-Kakavouli and Nicolás Torres-Echeverry. Here’s the abstract:

This paper analyzes Google’s role in proliferating fake news and misinformation in the months leading up to and immediately following the U.S. 2016 national election. It is one section of a longer report, Fake News and Misinformation: The roles of the nation’s digital newsstands, Facebook, Google, Twitter and Reddit, that serves as the first phase of a continuing inquiry over the 2017-18 academic year. This paper reviews the role of Google, and specifically Google Search, in the misinformation landscape. It tracks the problem of misinformation in search engines from the advent of search engine optimization and spam through the present day, focusing on Google’s efforts to curb its role in spreading fake news following the 2016 U.S. elections.

Part 1 describes the “arms race” between search engines and spammers exploiting weaknesses in search algorithms, which contributes to Google’s role in proliferating fake and/or biased news in the 2016 elections. As part of the continuing accounting of the impact of fake news and misinformation on the 2016 elections, this analysis tracks search results for senate and presidential candidates in that election, revealing that up to 30% of these national candidates had their search results affected by potentially fake or biased content.

Part 2 summarizes Google’s recent efforts in 2017 to curb misleading or offensive content through user reporting and human reviewers, along with the opinions of users and experts who are largely supportive of these changes. The section broadly reviews the influence of the Internet on journalism, and then describes Google’s recent efforts to invest in initiatives that bolster investigative journalism and news. It concludes with suggestions for policy and research directions, recommending in particular that Google and other companies increase data transparency, in particular for researchers, to better understand misinformation phenomena online. The study concludes that transparency and civilian oversight are the next critical steps towards a society which benefits fully from the ubiquitous and powerful technologies that surround us.

— Joe

Weekend reading: The Green Amendment

From the blurb for Maya van Rossum’s The Green Amendment: Securing Our Right to A Healthy Environment (Disruption Books, Nov. 14, 2017):

For decades, activists have relied on federal and state legislation to fight for a cleaner environment. And for decades, they’ve been fighting a losing battle. The sad truth is, our laws are designed to accommodate pollution rather than prevent it. It’s no wonder people feel powerless when it comes to preserving the quality of their water, air, public parks, and special natural spaces.

But there is a solution, argues veteran environmentalist Maya K. van Rossum: bypass the laws and turn to the ultimate authority—our state and federal constitutions.

In 2013, van Rossum and her team won a watershed legal victory that not only protected Pennsylvania communities from ruthless frackers but affirmed the constitutional right of people in the state to a clean and healthy environment. Following this victory, van Rossum inaugurated the Green Amendment movement, dedicated to empowering every American community to mobilize for constitutional change.

Now, with The Green Amendment, van Rossum lays out an inspiring new agenda for environmental advocacy, one that will finally empower people, level the playing field, and provide real hope for communities everywhere. Readers will discover:

• how legislative environmentalism has failed communities across America,
• the transformational difference environmental constitutionalism can make,
• the economic imperative of environmental constitutionalism, and
• how to take action in their communities.

— Joe

 

Cybersecurity reports and resources compiled by CRS

Much is written on this topic, and Cybersecurity: Cybercrime and National Security Authoritative Reports and Resources (Nov. 14, 2017 R44408) directs the reader to authoritative sources that address many of the most prominent cybersecurity issues. The annotated descriptions of these sources are listed in reverse chronological order, with an emphasis on material published in the past several years. This report includes resources and studies from government agencies (federal, state, local, and international), think tanks, academic institutions, news organizations, and other sources. — Joe

Foundations for Evidence-Based Policymaking Act, H.R. 4174, passes House; Incorporates provisions of the OPEN Government Data Act

The bipartisan supported Foundations for Evidence-Based Policymaking Act, H.R. 4174, passed the House by voice vote on Nov. 15, 2017. Sponsored by Speaker Ryan, the bill incorporates some of the recommendations the White House’s Commission on Evidence-Based Policymaking made in September and absorbs elements of the Open, Public, Electronic and Necessary Government Data Act, or the OPEN Government Data Act, sponsored by Reps. Derek Kilmer, D-Wash., and Blake Farenthold, R-Texas., and Sens. Brian Schatz, D-Hawaii., and Ben Sasse, R-Neb. Quoting from H. Rept. 115-411:

H.R. 4174, the Foundations for Evidence-Based Policymaking Act of 2017, advances the evidence building functions in the Federal government by improving access to data and expanding evaluation capacity. The bill incorporates H.R. 1770, the OPEN Government Data Act, in titles I and II, which expand public access to Federal data assets and make information about Federal data assets publicly available in a comprehensive, searchable inventory. H.R. 4174 improves data management practices by codifying the Chief Data Officer position and requiring the new position to coordinate the agency’s data management functions. H.R. 4174 also establishes the position of Chief Evaluation Officer, which is responsible for coordinating evidence-building activities across the agency and leading the agency’s evidence-building strategic planning. The bill further expands access to data by establishing a secure process for accessing nonpublic data assets for the purpose of evidence-building.

Summary of the Foundations for Evidence-Based Policymaking Act

Title I, Federal Evidence-Building Activities

  • Requires federal agencies to submit an evidence-building plan, which will be consolidated into one government-wide plan by the Office of Management and Budget
  • Requires federal agencies to appoint/designate a Chief Evaluation Officer to coordinate evidence-building activities within the agency Establishes an advisory committee on data for evidence building

Title II, OPEN Government Act

  • Ensures maximum data availability while respecting privacy and national security concerns
  • Requires federal agencies to appoint/designate a Chief Data Officer
  • Instructs federal agencies to establish a data inventory and federal data catalogue

Title III, Confidential Information Protection and Statistical Efficiency

  • Expands access to data while improving privacy standards

— Joe

Valparaiso School of Law won’t be admitting students next year

Earlier this week the public censure given to Valparaiso University School of Law for not being in compliance with admissions standards was removed by the council of the ABA’s Section of Legal Education and Admissions to the Bar. Do note that the school enrolled only 29 full-time incoming students in 2017. Now comes news that the law school is suspending Fall 2018 admissions, working to relocate students to other law schools, and exploring the possibility of affiliating with another law school or relocating the school for financial reasons. From yesterday’s press release:

Valparaiso University, a private university based in Northwest Indiana, today announced its Board of Directors directed the University’s Administration to continue to explore alternative possibilities related to the severe financial challenges facing its Law School. These alternative possibilities might include the possibility of affiliating the Law School with another existing law school, or relocating the Law School to another geographic market with perceived greater demand for legal education. Depending on the circumstances of such changes, approval of various accrediting organizations may be necessary.

— Joe

Weekend reading: Collusion: Secret Meetings, Dirty Money, and How Russia Helped Donald Trump Win

From the blurb for Luke Harding’s Collusion: Secret Meetings, Dirty Money, and How Russia Helped Donald Trump Win (Vintage, Nov. 16, 2017):

December 2016. Luke Harding, the Guardian reporter and former Moscow bureau chief, quietly meets former MI6 officer Christopher Steele in a London pup to discuss President-elect Donald Trump’s Russia connections. A month later, Steele’s now-famous dossier sparks what may be the biggest scandal of the modern era. The names of the Americans involved are well-known—Paul Manafort, Michael Flynn, Jared Kushner, George Papadopoulos, Carter Page—but here Harding also shines a light on powerful Russian figures like Aras Agalarov, Natalia Veselnitskaya, and Sergey Kislyak, whose motivations and instructions may have been coming from the highest echelons of the Kremlin.

Drawing on new material and his expert understanding of Moscow and its players, Harding takes the reader through every bizarre and disquieting detail of the “Trump-Russia” story—an event so huge it involves international espionage, off-shore banks, sketchy real estate deals, the Miss Universe pageant, mobsters, money laundering, poisoned dissidents, computer hacking, and the most shocking election in American history.

— Joe

Second set of articles of impeachment filed against President Trump

Congressman Steve Cohen (D-TN-09), the ranking member of the House Judiciary Subcommittee on the Constitution and Civil Justice, which has jurisdiction over impeachment matters, and four Democratic colleagues, introduced five articles of impeachment against President Donald J. Trump yesterday. The five articles are:

  • Article I – Obstruction of Justice
  • Article II – Violation of Article I, Section 9 of the U.S. Constitution – Foreign Emoluments
  • Article III – Violation of Article II, Section 1 of the U.S. Constitution – Domestic Emoluments
  • Article IV – Undermining the Independence of the Federal Judiciary and the Rule of Law
  • Article V – Undermining Freedom of the Press

Documentation:

End Note: LLB post on first articles of impeachment. — Joe

What is push research?

Back in the good old days of the 1980’s when I was a big law firm research librarian (instead of a bean-counting library administrator I have become), I would “push” or proactively supply attorneys resources unsolicited because I thought they may need the information for pending matters we had worked on together. Usually, the material provided was relevant and welcomed. “Push research” as explained by Casetext’s Jake Heller applies artificial intelligence to what amounts to be the electronic footprints of researchers to alert, update and supply resources to the end user sometimes unsolicited as I had done. By the sound of it, AI-engineered “push research” would perform a far better job of providing unsolicited pertinent information than the typical legal research librarian of the 1980s. On ATL, see Jake Heller, Push Research: How AI Is Fundamentally Changing The Way We Research The Law. Recommended. — Joe

Countdown to Day 301 under the Federal Vacancies Reform Act of 1998

Of 612 key positions requiring Senate confirmation, no candidate has been nominated by the Trump Administration for 259 positions according to the Washington Post-Partnership for Public Service tracker. Most, if not all, of these key advice and consent positions are occupied by acting officers. For many such situations, the Federal Vacancies Reform Act of 1998, 5 U.S. Code § 3345, limits the amount of time an acting officer may remain in his or her position. According to the CRS Legal Sidebar, Out of Office: Vacancies, Acting Officers, and Day 301 (Nov. 1, 2017 LSB10022):

A number of acting officers are currently filling vacancies that occurred during the presidential transition period. For those offices that were vacant on or shortly after Inauguration Day, the 210-day period, with the 90-day extension [under The Vacancies Act], will come to an end beginning sometime in November. If an acting officer remains in office beyond this 300-day period, and if the President has not submitted any nomination to that office, then the acting officer runs the risk of violating the Vacancies Act.

So if an acting officer was appointment on Jan. 20, 2017, then day 301 is November 17th. According to the CRS analysis here’s what can happen on Day 301:

On Day 301, whenever that day might occur for a particular office, the office would be designated vacant, for purposes of the Vacancies Act, and only the head of the agency would be able to perform the functions and duties of that vacant office. (If an office designated vacant under this provision is that of the agency head, it appears that no one can temporarily perform the functions and duties of that office under the Vacancies Act.) If the acting officer remains in office and attempts to perform a nondelegable function or duty—one that a statute or regulation expressly assigns to that office—that action will “have no force or effect.” In the words of the Supreme Court, it will be “void ab initio”: void from the beginning, as if the act had never been done. (There are a few specifically named offices that are exempt from this provision, but it is unclear what the consequences are if one of those offices is staffed by an acting officer serving in violation of the Vacancies Act.) Critically, the Vacancies Act also prohibits an agency from subsequently ratifying any void actions. This means that the agency can’t cure any violations by reissuing its decision through the proper processes.

For a detailed analysis, see The Vacancies Act: A Legal Overview (Oct. 30, 2017, R44997). — Joe

CRS analysis of federal court nominees rated “not qualified” by the ABA

From U.S. Circuit and District Court Nominees Who Received a Rating of “Not Qualified” from the American Bar Association: Background and Historical Analysis (Nov. 13, 2017 IN10814):

As of this writing, 49 individuals have been nominated by President Trump to U.S. circuit and district court judgeships and have also received a rating from the ABA. Of the 49, 4 (8.2%) received a rating of “not qualified,” 17 (34.7%) received a rating of “qualified,” and 28 (57.1%) received a rating of “well qualified” (including 11, or 78.6%, of 14 circuit court nominees who received a well qualified rating).

The number of nominees, as of this writing, who have received a not qualified rating during the Trump presidency is not notably high (when compared to the number of nominees who received such a rating over the entirety of each of the previous 11 presidencies).

What is distinctive, however, at least when compared to other presidencies, is that both a U.S. circuit court nominee and at least one district court nominee have received a rating of not qualified during President Trump’s first year in office (which last occurred in 1961 during the first year of the Kennedy presidency).

— Joe

ABA removes accreditation censure for Valparaiso University School of Law

The ABAJ is reporting that a public censure given to Valparaiso University School of Law for not being in compliance with admissions standards has been removed by the council of the ABA’s Section of Legal Education and Admissions to the Bar. The public censure was given to the law school in November 2016. It followed a New York Times story that reported that in Valparaiso’s class of 2015, only three out of 131 people had jobs with large law firms. Details here. — Joe

Restricting the first-use nuclear strike option by legislation

On January 24, 2017, identical versions of the Restricting First-Use of Nuclear Weapons Act of 2017 were introduced in both chambers of Congress: H.R. 669 and S. 200. See this LLB post. Earlier this month, CRS released two reports on the topic:

HT beSpacific. — Joe

Analyzing jury verdicts to evaluate litigation outcomes: A view from Thomson Reuters’ R&D team

Presented at the 16th International Conference on Artificial Intelligence and Law (2017), Jack Conrad and Khalid Al-Kofahi, both employed by Thomson Reuters, explain scenario analytics using the Company’s jury verdict and settlement databases. Here’s the abstract for their paper, Scenario Analytics – Analyzing Jury Verdicts to Evaluate Legal Case Outcomes:

Scenario Analytics is a type of analysis that focuses on the evaluation of different scenarios, their merits and their consequences. In the context of the legal domain, this could be in the form of analyzing large databases of legal cases, their facts and their claims, to answer questions such as: Do the current facts warrant litigation?, Is the litigation best pursued before a judge or a jury?, How long is it likely to take?, and What are the best strategies to use for achieving the most favorable outcome for the client? In this work, we report on research directed at answering such questions. We use one of a set of jury verdicts databases totaling nearly a half-million records. At the same time, we conduct a series of experiments that answer key questions and build, sequentially, a powerful data driven legal decision support system, one that can assist an attorney to differentiate more effective from less effective legal principles and strategies. Ultimately, it represents a productivity tool that can help a litigation attorney make the most prudent decisions for his or her client.

— Joe

 

ACLU and Yale Law School Clinic have standing to seek FISA court rulings on data collection

On Constitutional Law Prof Blog, Steven D. Schwinn reports that a sharply divided Foreign Intelligence Surveillance Court, sitting en banc for the first time in its history, ruled that the ACLU and Yale Law School’s Media Freedom and Information Clinic have standing to seek redacted portions of FISC rulings that set out the legal basis for a government bulk-data-collection program. He noted that the ruling [text] means that the movants’ efforts to obtain the rulings can move forward, although it does not say anything about the merits. — Joe