H/T to Sabrina Pacifici for calling attention to the rules package for the House of Representatives during the 116th Congress:
The Constitution mandates that Congress convene at noon on January 3, unless the preceding Congress by law designated a different day. P.L. 113-201 set January 6, 2015, as the convening date of the 114 the Congress. The 115th Congress convened on January 3, 2017. Congressional leaders announced the 116th Congress would convene January 3, 2019.
Both chambers have well-established routines for the opening of Congress. See:
- The First Day of a New Congress: A Guide to Proceedings on the Senate Floor (RS20722, Dec. 19, 2018)
- The First Day of a New Congress: A Guide to Proceedings on the House Floor (RL30725, Dec. 19, 2018)
Michael Feit offers some tantalizing preliminary results from Feit Consulting’s 2019 Legal Information Vendor Market Survey. The survey found that 54% of Am Law 200 firms use either Lexis or Westlaw but not both. Firms that have gone sole search provider are more satisfied with the remaining vendor.
In another post, Feit reveals how satisfied firms are with their vendors generally. 70% of firms are moderately/extremely satisfied with Westlaw. Wolters Kluwer scores a 55% moderately/extremely satisfied response, Lexis 32% and Bloomberg 20%. In view of the satisfaction ratings, the preliminary results for firms considering cancellation at the next contract renewal is not surprising. 46% of firms are considering canceling Bloomberg, 33% of firms with Lexis, 14% of firms with Westlaw and 13% of firms with Wolters Kluwer are considering cancellation of those vendor contracts.
As 2019 commences, it looks like Westlaw and Wolters Kluwer are market leaders in their respective search markets — general for Westlaw, and specialist market for Wolters Kluwer. I wonder how much Lexis and Bloomberg’s recent product tying changes have contributed to their dismal performance in Feit Consulting’s 2019 Legal Information Vendor Market Survey.
Chief Justice John Roberts released his annual report on the federal judiciary on Dec. 31st, focusing on the judiciary’s response to allegations of sexual misconduct in the workplace but remaining silent on judicial independence. Read the report here.
From the abstract for Joel K. Goldstein, Talking Trump and the Twenty-Fifth Amendment: Correcting the Record on Section 4, 21 Journal of Constitutional Law ___ (2018):
The first year of the presidency of Donald J. Trump brought attention to Section 4 of the Twenty-fifth Amendment, the constitutional provision that allows the Vice President and a Cabinet majority to transfer presidential powers and duties from a President who is “unable to discharge the powers and duties” of his office. Although the ensuing media discussion included many thoughtful contributions, it also produced many mistaken assertions by scholars, journalists and other commentators regarding the importance, scope, operation, and effect of Section 4. These mistakes are troubling because they may produce enduring misunderstanding regarding a provision designed to handle some of the most challenging, traumatic and contentious contingencies that might arise involving an incapacitated President and the transfer of presidential powers and duties to the Vice President. The errors also might provide material for political actors and their supporters to cite and use opportunistically to frustrate the proper use of Section 4. This Article exposes and corrects some of the mistaken assertions that have recently appeared in media discussions. It explores a range of textual, originalist, structural, pragmatic, and other constitutional arguments to shed light on significant, but sometimes misunderstood, questions regarding the importance, scope, operation, and effect of Section 4.
From the blurb for Laura Little, Guilty Pleasures: Comedy and Law in America (Oxford UP, Dec. 31, 2018):
Few people associate law books with humor. Yet the legal world–in particular the American legal system–is itself frequently funny. Indeed, jokes about the profession are staples of American comedy. And there is actually humor within the world of law too: both lawyers and judges occasionally strive to be funny to deal with the drudgery of their duties. Just as importantly, though, our legal system is a strong regulator of humor. It encourages some types of humor while muzzling or punishing others. In a sense, law and humor engage a two-way feedback loop: humor provides the raw material for legal regulation and legal regulation inspires humor. In Guilty Pleasures, legal scholar Laura Little provides a multi-faceted account of American law and humor, looking at constraints on humor (and humor’s effect on law), humor about law, and humor in law. In addition to interspersing amusing episodes from the legal world throughout the book, the book contains 75 New Yorker cartoons about lawyers and a preface by Bob Mankoff, the cartoon editor for the New Yorker.
On Nov. 29, 2018, CRIV conducted its Fall semiannual call with LexisNexis (reported in CRIV Blog on Dec. 18, 2018 here). CRIV tried to address two advocacy requests from law firms unable to renew their Law360 subscriptions without having a Lexis Advance contract. Here’s what LexisNexis said:
We’ve worked with Law Librarians and AALL over many years and deeply respect our longstanding relationship with this community. We see Law Librarians as critical collaborators in the journey to evolve our offerings and better serve all customers. It is in that same spirit that we’re engaging with AALL to fully understand the concerns that have been raised. Ultimately, our goal is to provide legal information and analytics that help lawyers cut through vast amounts of data to efficiently gain insights, make better decisions, and achieve the best outcomes possible.
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. Since pricing and packaging plans vary by customer type and are customized to meet specific customer needs, we encourage members to follow-up with their LexisNexis account representative with any questions regarding their firm’s specifics.
AALL leaders shared their “insights” in this June 7, 2018 letter to LN CEO Mike Walsh. That letter stated, among other important points that “The AALL Committee on Relations with Information Vendors (CRIV) his attempted to open a dialogue with LexisNexis regarding the impact of its anticompetitive policy on law firm libraries and on law firms. But, to date, LexisNexis’ response has been vague, incomplete, and unsatisfactory, evincing. no interest or intent to revoke or otherwise modify the practice in question.”
Nothing has changed; AALL leadership has yet to take action against LexisNexis.
On SCOTUSblog, Stephen Wermiel writes “Consider the legacy of President George H.W. Bush. Although he served only one four-year-term in the Oval Office, Bush, who died on November 30, had a profound impact on the Supreme Court. He appointed two justices, each of whom made a significant difference in the direction of the Supreme Court and the shape of constitutional law, and a solicitor general who weighed in strongly for the federal government on several controversial issues.” For more, see SCOTUS for law students: President George H.W. Bush’s Supreme Court legacy.
From the abstract for Ryan Doerfler, Can a Statute Have More Than One Meaning? 94 New York University Law Review ___ (2019, Forthcoming):
What statutory language means can vary from statute to statute, or even provision to provision. But what about from case to case? The conventional wisdom is that the same language can mean different things as used in different places within the United States Code. As used in some specific place, however, that language means what it means. Put differently, the same statutory provision must mean the same thing in all cases. To hold otherwise, courts and scholars suggest, would be contrary both to the rules of grammar and to the rule of law.
This Article challenges that conventional wisdom. Building on the observation that speakers can and often do transparently communicate different things to different audiences with the same verbalization or written text, it argues that, as a purely linguistic matter, there is nothing to prevent Congress from doing the same with statutes. More still, because the practical advantages of using multiple meanings — in particular, linguistic economy — are at least as important to Congress as to ordinary speakers, this Article argues further that it would be just plain odd if Congress never chose to communicate multiple messages with the same statutory text.
As this Article goes on to show, recognizing the possibility of multiple statutory meanings would let courts reach sensible answers to important doctrinal questions they currently do their best to avoid. Most notably, thinking about multiple meanings in an informed way would help courts explain under what conditions more than one agency should receive deference when interpreting a multi-agency statute. Relatedly, it would let courts reject as false the choice between Chevron deference and the rule of lenity for statutes with both civil and criminal applications.
From the blurb for Amalia D. Kessler, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 (Yale UP, 2017):
When Americans imagine their legal system, it is the adversarial trial—dominated by dueling larger-than-life lawyers undertaking grand public performances—that first comes to mind. But as award-winning author Amalia Kessler reveals in this engrossing history, it was only in the turbulent decades before the Civil War that adversarialism became a defining American practice and ideology, displacing alternative, more judge-driven approaches to procedure. By drawing on a broad range of methods and sources—and by recovering neglected influences (including from Europe)—the author shows how the emergence of the American adversarial legal culture was a product not only of developments internal to law, but also of wider socioeconomic, political, and cultural debates over whether and how to undertake market regulation and pursue racial equality. As a result, adversarialism came to play a key role in defining American legal institutions and practices, as well as national identity.
The FIRST STEP Act is legislation to reform the federal prison system. The bill will make retroactive the reforms enacted by the Fair Sentencing Act of 2010, which reduced the disparity between crack cocaine and powder cocaine sentences at the federal level. This could affect nearly 2,600 federal inmates, according to the Marshall Project.
The bill would take several steps to ease mandatory minimum sentences under federal law. It would expand the “safety valve” that judges can use to avoid handing down mandatory minimum sentences. It would ease a “three strikes” rule so people with three or more convictions, including for drug offenses, automatically get 25 years instead of life, among other changes. It would restrict the current practice of stacking gun charges against drug offenders to add possibly decades to prison sentences. All of these changes would lead to shorter prison sentences in the future.
The bill would increase “good time credits” that inmates can earn. Inmates who avoid a disciplinary record can currently get credits of up to 47 days per year incarcerated. The bill increases the cap to 54, allowing well-behaved inmates to cut their prison sentences by an additional week for each year they’re incarcerated. The change applies retroactively, which could allow some prisoners — as many as 4,000, according to supporters — to qualify for release the day that the bill goes into effect.
The bill would allow inmates to get “earned time credits” by participating in more vocational and rehabilitative programs. Those credits would allow them to be released early to halfway houses or home confinement. Not only could this mitigate prison overcrowding, but the hope is that the education programs will reduce the likelihood that an inmate will commit another crime once released and, as a result, reduce both crime and incarceration in the long term. (There’s research showing that education programs do reduce recidivism.)
President Trump’s pick for attorney general, William Barr, sent the Justice Department an unsolicited memo earlier this year questioning the appropriateness of an obstruction probe special counsel Robert Mueller is said to be conducting of certain Trump actions in the White House. The nearly 19-page memo suggested that, while there are certainly examples of obstructive conduct that could be investigated — destroying or altering evidence, suborning perjury, inducing witnesses to change testimony — President Trump, as far as Barr knew, wasn’t being “accused of engaging in any wrongful act of evidence impairment.” The memo argued that Mueller was pushing an “unprecedented expansion of obstruction law” so that it reaches actions President Trump took that were within the “discretion vested in him by the Constitution.” Read the Barr memo here.
Several GoFundMe pages have been launched to raise money for Trump’s wall. The most successful of those efforts is from veteran Brian Kolfage. In four days, his GoFundMe page titled We The People Will Fund The Wall has already raised over $3,910,509 of its $1 billion goal. The money was raised by 63,642 people.
This isn’t the first time crowdfunding the wall was attempted. In 2011, Arizona’s state government tried to crowdfund a $50 million wall on its border with Mexico. Four years later, Arizona abandoned the project after it raised less than $300,000.
The ABA’s Free Legal Answers is a virtual legal advice clinic. Qualifying users post their civil legal question to their state’s website. Users will then be emailed when their question receives a response. Attorney volunteers, who must be authorized to provide pro bono assistance in their state, log in to the website, select questions to answer, and provide legal information and advice. Volunteer attorneys will not answer criminal law questions. Participating states have their own page where qualifying residents will post their question. Look at your state’s page, listed below, for more information.
Current list of Free Legal Answers websites
Idaho (coming online soon)
New Hampshire (coming online soon)
U.S. Virgin Islands (coming online soon)
From the summary of Congress’s Authority to Influence and Control Executive Branch Agencies (R45442, Dec. 19, 2018):
The Constitution neither establishes administrative agencies nor explicitly prescribes the manner by which they may be created. Even so, the Supreme Court has generally recognized that Congress has broad constitutional authority to establish and shape the federal bureaucracy. Congress may use its Article I lawmaking powers to create federal agencies and individual offices within those agencies, design agencies’ basic structures and operations, and prescribe, subject to certain constitutional limitations, how those holding agency offices are appointed and removed. Congress also may enumerate the powers, duties, and functions to be exercised by agencies, as well as directly counteract, through later legislation, certain agency actions implementing delegated authority.
On Associate’s Mind, Keith Lee writes “Another year, another data dump. December 15th is the annual reporting day for ABA 509 Disclosures for all ABA approved law schools. These are required public disclosures that law schools must make as part of their ABA accreditation. As soon as the ABA started releasing the data, I began to compile it and release reports at Associate’s Mind.” See Law Schools ABA 509 Disclosure Reports 2018 (Stats + Graphs) for details.
From the abstract for Orly Lobel, The Law of the Platform ___ Minnesota Law Review ___ (2016):
New digital platform companies are turning everything into an available resource: services, products, spaces, connections, and knowledge, all of which would otherwise be collecting dust. Unsurprisingly then, the platform economy defies conventional regulatory theory. Millions of people are becoming part-time entrepreneurs, disrupting established business models and entrenched market interests, challenging regulated industries, and turning ideas about consumption, work, risk, and ownership on their head. Paradoxically, as the digital platform economy becomes more established, we are also at an all-time high in regulatory permitting, licensing, and protection. The battle over law in the platform is therefore both conceptual and highly practical. New business models such as Uber, Airbnb, and Aereo have received massive amounts of support from venture capitalists but have also received immense pushback from incumbent stakeholders, regulators, and courts. This article argues that the platform economy is presenting not only a paradigm shift for business but also for legal theory. The platform economy does not only disrupt regulated industries but also demands that we inquire into the logic of their correlated regulations. It requires that we go back to first principles about public intervention and market innovation. The article thus poses a foundational inquiry: Do the regulations we have carry over to the platform economy? By unpacking the economic and social drives for the rise of the platform economy, the article develops a new framework for asking whether digital disruptions comprise loopholes akin to regulatory arbitrage, most prominently studied in the tax field, circumvention akin to controversial copyright protection reforms, or innovation-ripe negative spaces akin to design-around competition in patent law. Bringing together these different bodies of law, the article offers a contemporary account of the relevance of regulation for new business models. The article concludes that, as a default, legal disruption by the platform economy should be viewed as a feature rather than a bug of regulatory limits.
According to PolitiFact’s Trump Truth-o-Meter scorecard, 75% of Trump’s statements are “mostly false,” “false” or “pants on fire” false. Check it out here.
The 83 claims filed by lawyers, doctors, professors and other concerned citizens accuse Kavanaugh of making false statements during his Senate confirmation hearings, displaying a lack of judicial temperament, making inappropriate partisan statements and treating members of the Senate Judiciary Committee with disrespect. However, the allegations must be dropped, according to the 10th Circuit judicial panel because ethics rules for the judiciary do not extend as high as the Supreme Court. Read yesterday’s order here.