On Wednesday, Mark Zuckerberg, the CEO of Facebook, described a sweeping new vision for his platform. “The future of communication,” he wrote, “will increasingly shift to private, encrypted services where people can be confident what they say to each other stays secure.” From the 3,200 word blog post:

“This privacy-focused platform will be built around several principles:

Private interactions. People should have simple, intimate places where they have clear control over who can communicate with them and confidence that no one else can access what they share.

Encryption. People’s private communications should be secure. End-to-end encryption prevents anyone — including us — from seeing what people share on our services.

Reducing Permanence. People should be comfortable being themselves, and should not have to worry about what they share coming back to hurt them later. So we won’t keep messages or stories around for longer than necessary to deliver the service or longer than people want them.

Safety. People should expect that we will do everything we can to keep them safe on our services within the limits of what’s possible in an encrypted service.

Interoperability. People should be able to use any of our apps to reach their friends, and they should be able to communicate across networks easily and securely.

Secure data storage. People should expect that we won’t store sensitive data in countries with weak records on human rights like privacy and freedom of expression in order to protect data from being improperly accessed.

Over the next few years, we plan to rebuild more of our services around these ideas.”

The post raised all kinds of questions about Facebook’s business model and strategies, as well as the trade-offs the company could face. And so after the post went live, Zuckerberg spoke with WIRED about his vision. Here’s the interview.

From the summary of Congress’s Authority to Influence and Control Executive Branch Agencies (R45442, Dec. 19, 2018):

The most potent tools of congressional control over agencies, including those addressing the structuring, empowering, regulating, and funding of agencies, typically require enactment of legislation. Such legislation must comport with constitutional requirements related to bicameralism (i.e., it must be approved by both houses of Congress) and presentment (i.e., it must be presented to the President for signature). The constitutional process to enact effective legislation requires the support of the House, Senate, and the President, unless the support in both houses is sufficient to override the President’s veto.

On Lawfare, Ryan Scoville asked “how, and how often, do legal academics use FOIA?” He writes “the actual use of FOIA and its state-law equivalents in legal academia has been quite limited. By my count, fewer than 60 law review articles in the entire Westlaw database report that the author obtained or tried to obtain records under a freedom-of-information law in carrying out the underlying research. In other words, law professors generally embrace transparency—but have traditionally relied upon others to supply it.”

From the introduction to The First Step Act of 2018: An Overview (R45558, Mar. 4, 2019): “On December 21, 2018, President Trump signed into law the First Step Act of 2018 (P.L. 115-391). The act was the culmination of several years of congressional debate about what Congress might do to reduce the size of the federal prison population while also creating mechanisms to maintain public safety. This report provides an overview of the provisions of the act.”

Excerpted from the press release:

John Palfrey, a respected educator, author, legal scholar, and innovator with expertise in how new media is changing learning, education, and other institutions, will serve as the sixth President of the John D. and Catherine T. MacArthur Foundation, effective September 1, MacArthur Board Chairman Dan Huttenlocher announced today. Since 2012, Palfrey has served as Head of School for Phillips Academy Andover. Before coming to Phillips Academy, he served as the Henry N. Ess III Professor of Law and Vice Dean for Library and Information Resources at Harvard Law School. In that role, he expanded the Library’s reach and services, finding innovative ways to use digital technologies to enhance the school’s scholarship and teaching. Palfrey is the author or co-author of nine books, most focused on new media and learning, including Safe Spaces, Brave Spaces: Diversity and Free Expression in Education; Born Digital: How Children Grow Up in a Digital Age; and BiblioTech: Why Libraries Matter More Than Ever in the Age of Google. In the nonprofit sector, Palfrey was Executive Director of the Berkman Klein Center for Internet & Society from 2002 to 2008, when it received MacArthur support. The organization seeks to explore and understand cyberspace. He was the founding board chair of the Digital Public Library of America.

H/T Gary Price’s InfoDocket post.

From the abstract for W. Burlette Carter, Can a Sitting President Be Federally Prosecuted? The Founders Answer, Howard Law Journal, 2019:

Exploring the history of impeachment and prosecution in (1) England and Great Britain, (2) colonial America, and (3) the states immediately after independence, and comparing these to the Founders’ Constitutional discussions, this article considers how the Founders would have answered that question, were it posed to them today. Deviating from most analyses of the problem, it argues that the Founders would have viewed the question as jurisdictional, involving a conflict between courts of law on the one hand, and the Congress–operating as a High Grand Jury (the House) and a High Court of Impeachment (the Senate)–on the other. They would have said that they gave to the Congress, constituted in its impeachment role, sole jurisdiction over removing a U.S. President for misbehavior. At the same time, they would have said that they gave courts of law concurrent power to hear cases involving crimes and misdemeanors so long as they do not involve removal. And so they would have answered our question with a question: Does the threatened action against the President risk removing the President, either directly or constructively? They would have believed that any order of a criminal authority affirmatively or negatively enjoining powers delegated to the President under the Constitution would shift those power to others and, therefore, would be a partial and impermissible removal attempt. Congress could insert itself into such proceedings to protect the Presidency (and, to remove or protect a President), but even if it does not, no federal court has jurisdiction to enforce such a removal order and, therefore a federal prosecutor has no power.

Consistent with British impeachment history, Founders would have viewed the proper issuance of Articles of Impeachment as a jurisdictional act that signaled Congress’ intent to actively intervene. As such, such Articles would automatically stay any contrary proceeding in or related to courts of law, including a federal investigation and the operation of a federal grand jury. Moreover, they would have said that a President has the power to fire his prosecutor, if he appointed him. And while a president can be impeached for obstructive behavior, they would have said that he cannot, after an impeachment, be prosecuted for statutory obstruction of justice, if the statutory prosecution is based on the exercise of powers delegated to him as President under the Constitution.

The Founders would have recognized that, before the formal issuance of Articles of Impeachment, courts of law have the power to stay their own proceedings against a President for good cause, just as English/British common law courts with concurrent jurisdiction always could. And they would have have accepted that courts of law can, in the first instance, decide evidentiary issues such as executive privilege for matters proceeding in their fora. Again, despite Parliamentary power over impeachment, common law courts had long done so in England and Great Britain, so long as they otherwise had jurisdiction.

This jurisdiction-focused answer from the Founders balances the interest in law enforcement in a given case with the larger interest of the nation in protecting the people’s investment in the Presidency. It allows prosecutors to investigate the behavior of a sitting President–up to a point. On the other hand, it not only authorizes but requires that prosecutors, sworn to uphold the Constitution, exercise prosecutorial discretion in determining whether or not to mount an investigation of a sitting President and how far to take it through the courts of law. And it requires that courts of law accept the limits of their jurisdiction when proposed injunctions or orders would threaten a removal.

The article sets forth the broad outlines of presidential removal doctrine and its jurisdictional ties. The focus is on the powers of federal prosecutors and federal courts in criminal proceedings vis a vis the President. It does not deal with the definition of high crimes and misdemeanors or many other related impeachment questions. While some of the arguments presented here might possibly apply to other types of proceedings against a President, including state prosecutions, this article focuses on federal prosecution.

LexisNexis Legal revenues for the year ended December 31 2018 were £1,618m, compared with £1,686m in 2017. Underlying adjusted operating profit growth for LexisNexis Legal was +10% which produced a profit margin of approximately 19.8%. In 2018, 67% of revenue came from North America, 21% from Europe and the remaining 12% from the rest of the world. Subscription sales generated 77% of revenue and transactional sales 23%. Read the report here.

Bridget J. Crawford’s Information for Submitting to Online Law Review Companions (Feb. 2019) “contains information about submitting essays, commentaries, reviews, responses, and other writings to online companions to the main law reviews and journals at selected law schools. The document includes word-count limitations, subject matter specifications, preferred submission methods and other information of possible interest to authors. It covers 20 online companions to main law reviews.”

From the abstract for Julian Davis Mortenson, Article II Vests Executive Power, Not the Royal Prerogative, Columbia Law Review, Forthcoming:

Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful: among constitutional originalists, this so-called Vesting Clause Thesis is now conventional wisdom. But it is also demonstrably wrong.

Based on an exhaustive review of the eighteenth-century bookshelf, this article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. This enforcement role was constitutionally crucial. Substantively, however, it extended only to the implementation of legal norms created by some other authority. It wasn’t just that the executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing.

There was indeed a term of art for the Crown’s non-statutory powers, including its various national security and foreign affairs authorities. But as a matter of well-established legal semantics, that term was “prerogative.” The other elements of prerogative—including those relating to national security and foreign affairs— were possessed in addition to “the executive power” rather than as part of it.

From the press release:

As a leader in the global movement toward open access to publicly funded research, the University of California is taking a firm stand by deciding not to renew its subscriptions with Elsevier. Despite months of contract negotiations, Elsevier was unwilling to meet UC’s key goal: securing universal open access to UC research while containing the rapidly escalating costs associated with for-profit journals.

From the introduction to NAFTA Renegotiation and the Proposed United States-Mexico-Canada Agreement (USMCA) (R44981, Feb. 26, 2019):

The 116th Congress faces policy issues related to the Trump Administration’s renegotiation of the North American Free Trade Agreement (NAFTA) and the proposed United States-Mexico-Canada Agreement (USMCA). On May 18, 2017, the Trump Administration sent a 90-day notification to Congress of its intent to begin talks with Canada and Mexico to renegotiate and modernize NAFTA, as required by the 2015 Trade Promotion Authority (TPA). Talks officially began on August 16, 2017. Negotiations were concluded on September 30, 2018. The proposed USMCA was signed on November 30, 2018. The agreement must be approved by Congress and ratified by the governments of Mexico and Canada before it can enter into force.

From the introduction to The Trump Administration’s “Zero Tolerance” Immigration Enforcement Policy (R45266, Feb. 26, 2019):

This report briefly reviews the statutory authority for prosecuting persons who enter the United States illegally between U.S. ports of entry, and the policies and procedures for processing apprehended illegal border entrants and any accompanying children. It explains enforcement policies under past Administrations and then discusses the Trump Administration’s zero tolerance policy on illegal border crossers and the attendant family separations. The report concludes by presenting varied policy perspectives on the zero tolerance policy and briefly reviews recent related congressional activity. An Appendix examines recent trends in the apprehension of family units at the U.S. Southwest border.

From the introduction to National Emergency Powers (98-505, Feb. 27, 2019):

The National Emergencies Act (50 U.S.C. §§1601-1651) eliminated or modified some statutory grants of emergency authority, required the President to formally declare the existence of a national emergency and to specify what statutory authority activated by the declaration would be used, and provided Congress a means to countermand the President’s declaration and the activated authority being sought. The development of this regulatory statute and subsequent declarations of national emergency are reviewed in this report.

Referring to my Nov. 8, 2018 LLB post entitled So what’s up? Is AALL going to follow up on the LexisNexis tying controversy? a reader asked what I knew about the current status of the AALL-LexisNexis tying dispute last week. My response: to the best of my knowledge, nothing has happened since the July 2, 2018 meeting between AALL officers and LN where LN executives served up the company’s usual word salad over this controversy.

The reader could have but didn’t ask:

  • “Will the LexisNexis tying matter be on the agenda for the executive board’s next meeting?” Don’t know. Too soon to say because the meeting’s agenda will not be released until early April.
  • “If not, does this mean that the executive board doesn’t intend to take legal or commercial action after the unproductive July 2, 2018 meeting?” I fear it may.

What AALL has done so far.  After fielding requests for assistance from law firms without obtaining satisfactory resolutions of the tying complaints, CRIV recommended that the executive board issue a “letter of disapproval.” The matter was placed on the executive board’s Spring 2018 meeting agenda and after the meeting the executive board issued a statement that the executive board was going to investigate LN’s tying sales policy.

On June 7, 2018, the executive board sent LN’s CEO Mike Walsh a letter criticizing the tying sales policy and calling for a meeting to resolve the controversy. That meeting took place of July 2, 2018 and was reported to the rank-and-file membership. In a nutshell, LN stonewalled AALL by stating that  the company is unable to discuss any product packaging or pricing matters, except with their customers, since each relationship is customized to meet the firm’s needs, and because Lexis has negotiated NDAs with all of its customers. From the meeting’s summary prepared by AALL:

“AALL President Greg Lambert strongly urged Lexis leadership to reconsider the new practice. While we do not anticipate that will occur, he further urged that they communicate fully to the membership and to their individual customers at the local level the specifics of this new sales practice and how it will affect them when renewing their Lexis contracts. … AALL will continue to pursue any rights we might have in addressing these product-tying policies.”

Since then, CRIV has continued to field requests for assistance by law firms over the tying policy and on Nov. 29, 2018, CRIV brought up the matter during its semi-annual vendor call once again. In essence, LN’s response stated its tying policy was legal so the company was going to continue executing it. Here’s one pertinent part of LN’s statement to CRIV:

“We appreciated the time and effort the AALL leadership team put into sharing their insights on our products and pricing. We will certainly keep these perspectives in mind as we move forward. We also were grateful for the opportunity to discuss our integrated product strategy and our compliance process that includes internal and external legal review of all pricing and packaging prior to release to customers.”

And that’s where the matter stands.  If it is not on the Spring 2019 executive board meeting agenda, then in all likelihood, AALL’s first significant attempt at consumer advocacy for law firms in many, many years has failed due to the executive board’s collective lack of will power to stand by its statements.

From the blurb for Kendall Svengalis, A Layperson’s Guide to Legal Research and Self-Help Law Books (New England Press 2018):

This unique and revolutionary new reference book provides reviews of nearly 800 significant self-help law books in 85 subject areas, each of which is proceeded by a concise and illuminating overview of the subject area, with links to online sources for further information. The appendices include the most complete directory of public law libraries in the United States. This is an essential reference work for any law, public, or academic library which fields legal questions or inquiries.

Highly recommended.

From the introduction for U.S. Constitutional Limits on State Money-Bail Practices for Criminal Defendants (R45533, Feb. 26, 2019):

Courts have heard legal challenges regarding whether state or local money-bail systems comport with the Constitution’s Due Process and Equal Protection Clauses. The Supreme Court has established that the Constitution provides certain protections to indigents during sentencing and postconviction, including ensuring that an indigent’s failure to pay a fine cannot result in an automatic revocation of probation or imprisonment beyond the statutory maximum term. The Court, however, has not addressed these rights in the bail context. Applying the rational basis standard, some courts have found money-bail systems that reasonably ensure a defendant’s subsequent court appearance to be constitutional. Other courts have indicated that bail systems that detain indigent criminal defendants pretrial, without considering their ability to pay, may be unconstitutional.