Rappaport, Aaron J., An Unappreciated Constraint on the President’s Pardon Power (November 30, 2018). UC Hastings Research Paper. Available at SSRN: https://ssrn.com/abstract=3293411 or http://dx.doi.org/10.2139/ssrn.3293411. [h/t Joe Hodnicki]
“Most commentators assume that, except for the few textual limitations mentioned in the U.S. Constitution, the President’s pardon power is effectively unlimited. This paper suggests that this common view is mistaken in at least one unexpected way: Presidential pardons must satisfy a specificity requirement. That is, to be valid, the pardon must list the specific crimes insulated from criminal liability.
This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion. Nonetheless, that burden can be met. The paper’s argument rests on an originalist understanding of the Constitution’s text, an approach that leaves little doubt that a specificity requirement is an implicit limitation on the President’s pardon power. It also demonstrates that the main objections to the argument – that the requirement runs contrary to the Constitutional text or historical practice – are misguided and unpersuasive. Of course, even if a specificity requirement exists, one may wonder about its significance. After all, the requirement does not prevent a President from issuing a pardon to any person or for any crime. Nonetheless, as the paper explains, a specificity requirement may prove more powerful than it first appears. Most importantly, it both limits the scope and raises the cost of issuing pardons for criminal violations, including violations of the electoral process. In so doing, the specificity requirement serves as an unexpected ally in the fight for political accountability and in defense of the rule of law.”
Wired – Speed is everything in a post-truth world of alternative facts, online propaganda and political lies. Full Fact, the UK’s fact-checkers, are increasingly relying on technology to tackle counter-narratives: “..Since its inception in 2010, Full Fact has been parsing claims from British politicians and media, cross-referencing them with reliable data and labelling them as inaccurate or correct. Claims are picked from sources including TV programmes such as Question Time or Newsnight, newspapers, electoral materials, and PMQs, which Full Fact probes before posting results in real time on Twitter….Claims will be broken down to essentials: facts, numbers, contextual information – which in turn will be dissected and compared with data from the Government, institutions such as the Office for National Statistics, or research organisations such as the Institute for Fiscal Studies. In some cases, Full Fact will ask the opinion of independent experts. If the facts cannot be found anywhere, one of the fact-checkers will phone the person who made the claim and ask where they got the information. The eventual outcome will be an online article providing “the whole picture” about the claim, often with the aid of graphs and always linking to the original sources. At the top of the page, there will be a banner juxtaposing the original statement with Full Fact’s conclusion.
Full Fact only checks declarations about the economy, Europe, health, crime, education, immigration and law, focusing on national politics and limiting itself to claims that can be verified with publicly available information: O’Leary, for example, will not touch the Cambridge Analytica scandal, until after an inquiry. “We take the view that if a member of the public had to check this information, could they? If they can, we’ll fact-check that,” he says. Are Full Fact researchers just full-time citizens?, I ask. A half-smile flickers on O’Leary’s lips. “Full-time citizens with a lot of skills.”..”
Up to a foot of snow is expected to fall across the southern Appalachians and nearby foothills in North Carolina and Virginia through Sunday night.
(Image credit: Jonathan Drew/AP)
Lens culture: There Is Gas Under the Tundra – In the far reaches of the Arctic tundra, fire and ice coexist in expansive natural gas fields. “We typically think of ice and fire as elemental opposites – two of nature’s most primal forces that cannot exist in the same place at once. But the Russian Arctic’s Yamal Peninsula is home to one of the largest gas fields in the world, where the resource is tapped and harvested for use all over the planet. We’ve become dependent on natural gas for everything from taking a shower to turning on the lights in our homes, and our dependency has made its harvest a lucrative venture. But even in the depths of the Arctic, there are civilizations to be displaced by modern development…”
EveryCRSReport.com – Congressional Oversight of Intelligence: Background and Selected Options for Further Reform, December 4, 2018: “Prior to the establishment of the Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee on Intelligence (HPSCI) in 1976 and 1977, respectively, Congress did not take much interest in conducting oversight of the Intelligence Community (IC). The Subcommittees on the Central Intelligence Agency (CIA) of the congressional Armed Services Committees had nominal oversight responsibility, though Congress generally trusted that IC could more or less regulate itself, conduct activities that complied with the law, were ethical, and shared a common understanding of national security priorities. Media reports in the 1970s of the CIA’s domestic surveillance of Americans opposed to the war in Vietnam, in addition to the agency’s activities relating to national elections in Chile, prompted Congress to change its approach. In 1975, Congress established two select committees to investigate intelligence activities, chaired by Senator Frank Church in the Senate (the “Church Committee”), and Representative Otis Pike in the House (the “Pike Committee”). Following their creation, the Church and Pike committees’ hearings revealed the possible extent of the abuse of authority by the IC and the potential need for permanent committee oversight focused solely on the IC and intelligence activities. SSCI and HPSCI oversight contributed substantially to Congress’s work to legislate improvements to intelligence organization, programs, and processes and it enabled a more structured, routine relationship with intelligence agencies. On occasion this has resulted in Congress advocating on behalf of intelligence reform legislation that many agree has generally improved IC organization and performance. At other times, congressional oversight has been perceived as less helpful, delving into the details of programs and activities…
An oft-cited observation of the Commission on Terrorist Attacks upon the United States (i.e., the 9-11 Commission) that congressional oversight of intelligence is “dysfunctional” continues to overshadow discussion of whether Congress has done enough. Does congressional oversight enable the IC to be more effective, better funded and organized, or does it burden agencies by the sheer volume of detailed inquiries into intelligence programs and related activities? A central question for Congress is: Could additional changes to the rules governing congressional oversight of intelligence enable Congress to more effectively fund programs, influence policy, and legislate improvements in intelligence standards, organization and process that would make the country safer?..”
Sharon Driscoll – Stanford News: “In the last half-century, women in law have made huge strides. But women who came before them faced huge hurdles—and many of them overcame those hurdles, making history by attending law school and succeeding in the profession against the odds. BROOKSLEY BORN, JD ’64, BA ’61, and Linda Ferren, executive director of the Historical Society of the District of Columbia Circuit, set out to capture their stories when they initiated the Women Trailblazers in the Law Project (WTP), a collaborative research project of the ABA and the American Bar Foundation. Born’s own story is included in the collection. Born was the first woman president of the Stanford Law Review and went on to serve as chairperson of the Commodity Futures Trading Commission from 1996 to 1999.
At Born’s suggestion, the full WTP collection is now housed at the Robert Crown Law Library at Stanford. The Library of Congress and the Schlesinger Library at Harvard have selected oral histories from WTP. “Our goal at Stanford Law has been to enhance public access to and discoverability of these oral histories for the benefit of law students, legal scholars, and anyone interested in the rich and inspiring stories of these pioneering women. It is our honor to preserve this priceless collection,” said BETH WILLIAMS, director of the Robert Crown Law Library and a senior lecturer in law. Among those included in the collection is BARBARA BABCOCK, the Judge John Crown Professor of Law, Emerita, who recalled in her oral history her first semester contracts class at Yale Law, when a well-known professor called on her. Babcock also interviewed her former student, LADORIS CORDELL, JD ’74, the first female African American judge in Northern California, for the series.
- Staff at Crown Library launched the new WTP website in November, allowing easy online access to the collection and resources.
- Read more about the Women Trailblazers in Law Oral History.”
Study Shows Reading Remediation Improves Children’s Reading Skills and Positively Alters Brain Tissue
“Carnegie Mellon University scientists Timothy Keller and Marcel Just have uncovered the first evidence that intensive instruction to improve reading skills in young children causes the brain to physically rewire itself, creating new white matter that improves communication within the brain. As the researchers report today in the journal Neuron, [Timothy A. Keller, Marcel Adam Just. Altering Cortical Connectivity: Remediation-Induced Changes in the White Matter of Poor Readers. Neuron, 2009; 64 (5): 624-631 DOI: 10.1016/j.neuron.2009.10.018] brain imaging of children between the ages of 8 and 10 showed that the quality of white matter — the brain tissue that carries signals between areas of grey matter, where information is processed — improved substantially after the children received 100 hours of remedial training. After the training, imaging indicated that the capability of the white matter to transmit signals efficiently had increased, and testing showed the children could read better.
“Showing that it’s possible to rewire a brain’s white matter has important implications for treating reading disabilities and other developmental disorders, including autism,” said Just, the D.O. Hebb Professor of Psychology and director of Carnegie Mellon’s Center for Cognitive Brain Imaging (CCBI). Dr. Thomas R. Insel, director of the National Institute of Mental Health, agreed. “We have known that behavioral training can enhance brain function. The exciting breakthrough here is detecting changes in brain connectivity with behavioral treatment. This finding with reading deficits suggests an exciting new approach to be tested in the treatment of mental disorders, which increasingly appear to be due to problems in specific brain circuits..”
Curated List – The Best Books of 2018 – Jason Kottke: “2018 was the year that tsundoku entered our cultural vocabulary. It’s a Japanese word that doesn’t translate cleanly into English but it basically means you buy books and let them pile up unread. The end-of-the-year book lists coming out right now won’t help any of us with our tsundoku problems, but there are worse things in life than having too many books around. I took at look at a bunch of these lists and picked out some of the best book recommendations for 2018 from book editors, voracious readers, and retailers. Let’s dig in…”
Mari Cheney – Assistant Director, Research and Instruction, at Boley Law Library, Lewis and Clark Law School, Portland, Oregon. “Do you have a tech lover in your life? Not sure what to add to your own wishlist this holiday season? Here’s a link roundup of gift guides for tech lovers.
- From The Digital Edge (a Legal Talk Network podcast): ‘Tis the Season: Tech Toys for the Holidays 2018. This list includes a voice-activated trash can, a smartphone sanitizer and charger, and a smart mini projector.
- From Ars Technica: The Ars Holiday Gift Guide 2018 — Good Tech for the Power User in Your Life. This list includes a USB security key, a media streamer, and a tech toolkit.
- From CNET: Holiday Gift Guide 2018: CNET Editors’ Top Picks. This list includes headphones, a video streamer, and a dual-USB charger and built-in battery.
- From Forbes: These are the Best Technology Gifts You Can Buy This Year. This list includes a ceramic Bluetooth mug, a wireless power bank, and a sleep trainer.
- From the New York Times: 2018 Holiday Gift Guide–Tech. This list includes a digital pet sitter, a digital photo frame, and wireless headphones.”
Washington Post: “…Even as the United States becomes increasingly diverse, neighborhood segregation patterns persist in large urban areas, including in the Washington metro region, according to five-year trend data from the Census Bureau. Segregation has remained most entrenched between black and white residents, while segregation between whites and Hispanics and whites and Asians is more fluid, according to an analysis of the bureau’s latest American Community Survey data. Some of the starkest black-white urban divide can be seen in Midwestern and Northeastern cities with long-concentrated and slow-growing black populations, including Buffalo, Chicago, Cleveland, Detroit, Milwaukee, New York and St. Louis, said William Frey, a senior demographer at the Brookings Institution, who analyzed the data. These cities all have segregation levels above 70, meaning that 70 percent or more of black residents would have to move into a different neighborhood to fully integrate the city. But overall, segregation was down since 2000, when several metropolitan areas had levels above 80. The urban area with the lowest black-white segregation level is Las Vegas, at 39.5. In the Washington region, the black-white segregation level was 61.3, down from 63.6 in 2000…”
The Verge – Can a search engine ever be meaningfully neutral: “[December 11, 2018], Sundar Pichai will try to reassure Congress that Google’s search engine isn’t rigged. The Google CEO is testifying before the House Judiciary Committee on Tuesday [TheHearing is titled – Transparency & Accountability: Examining Google and its Data Collection, Use and Filtering Practices] answering questions about “potential bias and the need for greater transparency” in Google’s business practices. It’s Republican lawmakers’ latest move in a series of hearings over Silicon Valley political bias. “Google has created some of the most powerful and impressive technology applications,” wrote House Majority Leader Kevin McCarthy in the announcement. “Unfortunately, recent reports suggest Google might not be wielding its vast power impartially. Its business practices may have been affected by political bias.” We don’t know exactly what questions will arise during Pichai’s testimony. But this summer, President Donald Trump caused a brief uproar by claiming (without evidence) that Google suppressed positive news about him. Reports indicated Trump might even direct regulators to investigate Google and other platforms for bias. But that proposal hadn’t come from one of Silicon Valley’s many ideological enemies — it was supposedly promoted by recommendations site Yelp, which has spent years protesting what it calls unfair demotion of its search results.
That investigation never came to pass. But it highlighted a major underpinning of the current anti-Google backlash: a decade-long fight over how search engines, which have become many people’s primary gateway to the internet, should treat the websites they list.”
Judith Jones and Carolyn Kenyon discuss their fundraising efforts that resulted in $1.5 million medical bill debt forgiveness for New York strangers.
The moves in Wisconsin and Michigan aren't new. In some ways they reopen the debate that was settled in Marbury vs. Madison. The American Enterprise Institute's Norman Ornstein gives us a lesson.
NPR's Lulu Garcia-Navarro talks with Wisconsin State Representatives Jim Steineke and Amanda Stuck about the recent bills passed by the state legislature to limit the powers of the incoming governor.
NPR's Lulu Garcia Navarro speaks with BuzzFeed reporter Jason Leopold about his recent story on the connections between the Trump organization and the Russians.