Law and Legal
OECD Economic Outlook May 2019: “A year ago, the OECD warned about how trade and policy uncertainties could significantly damage the world economy and further contribute to the growing divide between people. A year later, global momentum has weakened markedly and growth is set to remain subpar as trade tensions persist. Trade and investment have slowed sharply, especially in Europe and Asia. Business and consumer confidence have faltered, with manufacturing production contracting. In response, financial conditions have eased as central banks have moved towards more accommodative monetary stances, while fiscal policy has been providing stimulus in a handful of countries. At the same time, low unemployment and a slight pick-up in wages in the major economies continue to support household incomes and consumption. Overall, however, trade tensions are taking a toll and global growth is projected to slow to only 3.2% this year before edging up to 3.4% in 2020, well below the growth rates seen over the past three decades, or even in 2017-18…”
Opimas Report – Workforce of the Future:Transplanting Technology Skill Sets to the Capital Markets 2019-05-16 – “The post-crisis regulatory tsunami that hit the capital markets over the past 10 years has had a major impact on the global industry’s workforce. Despite strong downward pressure on margins, financial institutions embarked on massive recruitment for their risk management, legal, and compliance teams to cope with the complexity of the new regulatory environment.
The result was a profound shift in employee headcount, with a significant increase of 190,000 employees in the overall capital markets workforce between 2010 and 2016 (see Figure 1). This heightened regulatory pressure has mitigated the benefits of increased automation and productivity, which should have allowed a stabilization of the overall workforce and, over time, a reduction in headcount and related expenses.
With regulatory reform now in hand, it is critical that financial institutions shift their focus to improving efficiency to weather the ongoing pressure on margins. The massive adoption of new technologies such as artificial intelligence (AI) and data analytics by financial institutions is obviously a means to address this need. The digital transformation of the capital markets is well underway and will accelerate over the next few years. Given this, Opimas is expecting an enormous reduction in staff with more than 400,000 full-time employees lost by 2030.
We believe that this reduction will impact some financial institutions far more than others. Notably, the asset management industry—already under tremendous pressure due to declining management fees and slowing asset inflows—will see some of the greatest cutbacks in the workforce, shedding about one third of its headcount…”
“The Library of Congress’s mission is to engage, inspire, and inform the Congress and the American people with a universal and enduring source of knowledge and creativity. To accomplish that mission, the Library is adopting a digital-forward strategy that harnesses technology to bridge geographical divides, expand our reach, and enhance our services. This document describes how we will secure the Library’s position in an increasingly digital world as we realize our vision that all Americans are connected to the Library of Congress.
The Digital Strategy complements the Library’s 2019-2023 strategic plan, Enriching the User Experience, which enumerates four high-level goals: expand access, enhance services, optimize resources, and measure results. The Digital Strategy describes what the Library plans to accomplish, in terms of digital transformation, over the next five years to achieve these goals. The transformation we describe below applies to all of the Library’s programs, including our collections, researcher services, the United States Copyright Office, the Congressional Research Service, and the National Library Service for the Blind and Physically Handicapped.
Digital technology enables us to sustain and expand services to all users, bridging gaps and strengthening connections. The Digital Strategy describes how we will use each interaction as an opportunity to move users along a path from awareness, to discovery, to use, and finally to a connection with the Library through three main goals: throwing open the treasure chest, connecting, and investing in our future.”
Bruce A. Green and Rebecca Roiphe, May Federal Prosecutors Take Direction From the President?, 87 Fordham L. Rev. 1817 (2019). [h/t Mary Whisner]
“Suppose the president sought to serve as prosecutor-in-chief, telling prosecutors when to initiate or dismiss criminal charges in individual cases and making other discretionary decisions that are normally reserved to trained professionals familiar with the facts, law, and traditions of the U.S. Department of Justice. To what extent may prosecutors follow the president’s direction? In recent presidential administrations, the president has respected prosecutorial independence; while making policy decisions, the president deferred to the Attorney General and subordinate federal prosecutors to conduct individual criminal cases. In a recent article, we argued that this is as it should be because the president has no constitutional or statutory authority to control federal criminal prosecutions. But suppose one comes to the contrary conclusion—that the president, as chief executive, has authority to decide how individual criminal prosecutions should be conducted. In this Article, we explore the consequences for prosecutors who receive the president’s orders. We argue here that federal prosecutors cannot invariably and unquestioningly follow the president’s direction because doing so would violate ethical rules and professional norms. Further, because prosecutors’ professional obligations are created by courts and endorsed by federal statute, presidential control over prosecutorial decision-making would lead to serious separation-of-powers concerns. Particularly, the integrity of the judicial system depends on the ethical rules at issue. By exploring these separation-of-powers concerns, this Article contributes to a growing debate about the power of the executive over prosecution and further supports the independence of the DOJ and federal prosecutors.”
“The Great Recession is remembered, and properly so, for its massive destruction of household wealth and job losses that reached over 800,000 in a single month. In just the fourth quarter of 2008, real GDP fell at an annual rate of 8.4 percent, while economies across the world were savaged by problems as bad as or worse than our own. Remembered too are the scars left by the economy’s punishing decline: an uneven recovery, many workers who remain disconnected from the job market, an increased debt level, and permanent losses in GDP. We should also recall how bold and decisive policy actions quickly stopped and reversed the decline. Thanks to a massive countercyclical fiscal stimulus, unprecedented Federal Reserve monetary policy actions, and bold steps to stabilize the financial system, GDP resumed growing in the 3rd quarter of 2009 and rose vigorously in the 4th. Economists estimate that, by 2011, real GDP was 16 percent higher and unemployment was almost seven percentage points lower than they would have been had such firepower not been deployed.
The economic expansion that started almost ten years ago continues to this day. Policymakers should know that the “stimulus,” derided as an “8-letter word” in the overheated political debates at the time, worked; though not every program performed equally well. So, they should examine the findings of mainstream economists who have documented the effectiveness and limitations of the policies which steered our economy away from the abyss. Recessions are inevitable. Policymakers who might rely on Federal Reserve policy as the lone response to recession should think again; we know that fiscal stimulus is effective. Furthermore, economic conditions have changed; were the U.S. economy to fall into recession in this current low interest rate environment, the Fed’s monetary policy options would be far more limited than they were in 2009, and a higher debt level could complicate the use of discretionary stimulus. Consequently, policymakers should learn about proposals to help the next recovery start faster, make job creation stronger, and restore confidence to businesses and households so they resume investing and spending again. Enacting these proposals in fully reasoned detail before the next recession strikes will help us avoid the delays and risks associated with writing stimulus legislation in the middle of a meltdown…”
Cohen’s February 2019 testimony can be found here. Cohen’s March 2019 testimony can be found here. [May 20, 2019], the House Permanent Select Committee on Intelligence voted to release Michael Cohen’s testimony and related exhibits to the public by a vote of 12 – 7. Afterwards, Chairman Adam Schiff (D-CA) made the following statement: “With the completion of Special Counsel Mueller’s work and the release of his report, it is critically important that the Committee, and the Congress, make public as much information as possible that bears on Mueller’s findings, explain the evidence he uncovered, and expose the obstructive actions taken by this President and those who surround him. “It is in this light that the Committee today releases the transcripts of two days of interviews of Trump’s former personal lawyer Michael Cohen.”
Cohen’s February and March 2019 testimony corroborate information previously received by the Committee, including the Trump Tower Moscow deal under negotiation throughout the 2016 election season by then-candidate Donald Trump. Cohen also presented significant and troubling new detail regarding the false statement that he provided to our Committee in August 2017 and for which, in part, he is now in prison. Since Cohen’s testimony, the Committee has already begun to follow up on information that Cohen provided related to attorneys for others involved in a joint defense agreement – including Jared Kushner and Donald Jr. and Ivanka Trump – to determine whether they aided in Cohen’s obstruction of the Committee’s investigation…”
See also Politico – Cohen: Trump’s attorney urged false testimony – President Donald Trump’s former fixer also said Jay Sekulow dangled a pardon to ‘shut down’ the Russia probe.
CNN – “…Finland has faced down Kremlin-backed propaganda campaigns ever since it declared independence from Russia 101 years ago. But in 2014, after Moscow annexed Crimea and backed rebels in eastern Ukraine, it became obvious that the battlefield had shifted: information warfare was moving online. Toivanen, the chief communications specialist for the prime minister’s office, said it is difficult to pinpoint the exact number of misinformation operations to have targeted the country in recent years, but most play on issues like immigration, the European Union, or whether Finland should become a full member of NATO (Russia is not a fan).
As the trolling ramped up in 2015, President Sauli Niinisto called on every Finn to take responsibility for the fight against false information. A year later, Finland brought in American experts to advise officials on how to recognize fake news, understand why it goes viral and develop strategies to fight it. The education system was also reformed to emphasize critical thinking…”
Jennifer L. Thurston, Black Robes, White Judges: The Lack of Diversity on the Magistrate Judge Bench, 82 Law and Contemporary Problems 63-102 (2019) [h/t Mary Whisner]
“…From 2009 to 2016, females on the district court bench increased 13.2%, from 19.4% to 32.6%, and non-white district judges increased 10.6%, from 16.4% to 27.0%.24 During this same period, the number of female magistrate judges increased only by 7.2% and non-whites increased by a paltry 1.2%.25 “Pipeline issues” may account for some part of the problem when seeking to diversify the magistrate judge bench, but, given the success of recent Presidential Administrations in diversifying the district judge bench, it cannot account for all of it. Some of the problem stems from the selection process for magistrate judges. Applicants tend to be self-selected. Facing an all-white bench is likely to be discouraging to prospective non-white hopefuls. Likewise, unlike the political selection process for district judges, magistrate judge candidates engage in a multi-step merit selection process that winnows applicants down to a handful from which the successful candidate emerges. Differing instructions to the selection panels, differing priorities, and differing judicial philosophies all work against the selection of diverse candidates for the magistrate judge bench…Some of the problem stems from the selection process for magistrate judges. Applicants tend to be self-selected. Facing an all-white bench is likely to be discouraging to prospective non-white hopefuls. Likewise, unlike the political selection process for district judges, magistrate judge candidates engage in a multi-step merit selection process that winnows applicants down to a handful from which the successful candidate emerges. Differing instructions to the selection panels, differing priorities, and differing judicial philosophies all work against the selection of diverse candidates for the magistrate judge bench…”
- At the Facebook AI Research lab, the online publisher is teaching robots how to learn. It promises to share the results with its friends….
- Levi’s Eureka Innovation Lab in San Francisco uses lasers, pigments, and ingenuity to keep the jeansmaker technologically fashion-forward…
- At the Pittsburgh-area test track of Argo AI, majority shareholder Ford is running its first self-driving cars through their paces….
The New York Times – “Stuart Goldstein still has the red-and-white bumper stickers and other artifacts from 1969, when he helped persuade New Jersey lawmakers that 18-year-olds should be able to vote. He was 18 himself then, working with two other college students, David DuPell and Ken Norbe, to build a political network that grew to 10,000 volunteers. They took students to Trenton in busloads and even sneaked into a Richard Nixon rally seeking his support. Theirs was an early salvo in a movement that would end in 1971 with the ratification of the 26th Amendment, which lowered the voting age to 18 from 21.
Fifty years later, there is a nascent movement to change the voting age again — this time to 16 — but there are some big differences between the efforts. Then, liberal and conservative activists united behind a powerful argument that went back to World War II, when President Franklin D. Roosevelt lowered the draft age to 18: Young people were being conscripted to fight America’s wars but couldn’t vote in its elections. Today, there is no similarly popular argument. Indeed, a recent poll found that 75 percent of registered voters opposed letting 17-year-olds vote, and 84 percent opposed it for 16-year-olds. In March, when Representative Ayanna Pressley of Massachusetts proposed a 16-year-old voting age amendment to House Democrats’ sweeping voting rights bill, it failed 126 to 305, with almost half of her fellow Democrats voting against it and only one Republican in support. Opponents in both parties have expressed doubts that 16-year-olds are mature enough to vote. But local, youth-led campaigns to lower the voting age have persisted since at least 2013, when Takoma Park, Md., gave 16- and 17-year-olds the right to vote in municipal elections….”
BuzzFeedNews: ” A federal judge in Washington, DC, on Monday rejected President Donald Trump’s efforts to block a subpoena issued by House Democrats to his longtime accounting firm. US District Judge Amit Mehta wrote in a 41-page opinion that the House Oversight Committee had presented “facially valid legislative purposes” in subpoenaing Mazars LLP for financial records related to Trump and his eponymous businesses. “It is not for the court to question whether the Committee’s actions are truly motivated by political considerations,” Mehta wrote.
At a court hearing last week, Trump’s attorney William Consovoy told the judge that they would appeal if they lost. Mehta denied Consovoy’s request to delay his ruling pending an appeal, finding that any risk of “irreparable harm” — that is, once Congress got the records, there was no going back — was outweighed by the public interest in Congress getting access to records it sought. “The court is well aware that this case involves records concerning the private and business affairs of the President of the United States. But on the question of whether to grant a stay pending appeal, the President is subject to the same legal standard as any other litigant that does not prevail,” Mehta wrote…”
“Cyberbullying has become a notorious epidemic, culminating in widely publicized suicides. Whether a new and distinct problem or an old one in a new guise, the technological setting has undoubtedly generated new challenges and, at the same time, new opportunities for legal response. Regrettably, while delegation of power to educational institutions and criminalization of cyber-misconduct are relatively common, at least in public discourse, the potential impact of civil liability has been downplayed. This Article puts the underexplored regulatory tool under the spotlight. It provides systematic legal and economic analyses of civil liability for cyberbullying, based on a trichotomy of potential defendants—primary wrongdoers, real-life supervisors (parents, schools), and virtual supervisors (mostly online platform operators).
Ultimately, the Article lays the foundations for an efficiency-oriented model which integrates technological features to reduce supervisors’ information costs. In order to incentivize parents to reasonably use advanced surveillance applications, the proposed model imposes liability when failure to employ such tools results in juvenile cyber-wrongdoing, in addition to standard liability for not taking reasonable precautions upon learning about the risk. The model also imposes liability on schools for cyberbullying through school devices if they failed to: (1) enforce reliable identification of users, (2) employ advanced surveillance tools, or (3) take reasonable measures to prevent harm upon notification of possible misconduct. Finally, the model holds a virtual supervisor liable if the victim has insufficient information to identify the wrongdoer, the victim gave notice of the complaint, and the virtual supervisor did not properly respond.”
Via LLRX – Online Research Browsers 2019 – Marcus Zillman’s guide highlights multifaceted browser alternatives to mainstream search tools that researchers may regularly use by default. There are many reliable yet underutilized applications that facilitate access to and discovery of subject matter specific documents and sources. Free applications included here also offer collaboration tools, resources to build and manage repositories, to employ data visualization, to create and apply metadata management, citations, bibliographies, document discovery and data relationship analysis.
OPM-GSA merger plan detailed in legislative proposal – vests power over personnel service in presidential appointee
FCW.com: “The White House is proposing legislation for a dramatic overhaul of human resources inside the government and wants $50 million to execute the plan. The administration is looking to move the Office of Personnel Management’s functions and resources to a service inside the General Service Administration, alongside real estate management and acquisition. A new policy shop — Office of Federal Workforce Policy — would be set up inside the White House with its director reporting to the deputy director for management at the Office of Management and Budget. Acting OPM chief and OMB Deputy Director for Management Margaret Weichert previewed the plan at a press conference earlier this week. The immediate impetus for the plan, Weichert said, comes from a $70 million shortfall resulting from the move of the National Background Investigative Bureau to the Department of Defense, but the merger of the two departments has been long contemplated in the Trump administration’s reorganization plans.
The legislative proposal includes moving all the rulemaking authority formerly vested in OPM to the OMB director and envisions that power being delegated to the GSA administrator.
The management authority once belonging to OPM would also devolve to the GSA administrator under the proposal. GSA’s new Personnel Service would be led by a presidentially appointed, Senate-confirmed official. The current OPM deputy administrator position would cease to be a Senate-confirmed post…”
News in a Digital Age – Comparing the Presentation of News Information over Time and Across Media Platform – “The media ecosystem in the United States has experienced rapid techno-logical changes over the past 30 years that have affected the way news is produced, consumed, and disseminated. This internally funded report seeks to assess empirically whether and how presentation of news in newspapers, television, and online has changed in light of these devel-opments. We use RAND-Lex, a suite of RAND Corporation tools that combine text analysis and machine learning, to explore changes in news presentation over time and across platforms. It considers the implications of observed changes and of areas in which reporting has stayed the same. The report will be of interest to journalists, those who study news media and mass communication, and consumers who want to understand more about the media ecosystem and how it has evolved.This report is one of a series focused on the topic of Truth Decay, defined as the diminishing role that facts, data, and analysis play in today’s political and civil discourse. The original report, Truth Decay: An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life by Jennifer Kavanagh and Michael D. Rich, was published in January 2018 and laid out a research agenda for studying and developing solutions to the Truth Decay challenge.”
From now, house style guide recommends terms such as ‘climate crisis’ and ‘global heating’ – “We want to ensure that we are being scientifically precise, while also communicating clearly with readers on this very important issue,” said the editor-in-chief, Katharine Viner. “The phrase ‘climate change’, for example, sounds rather passive and gentle when what scientists are talking about is a catastrophe for humanity.” “Increasingly, climate scientists and organisations from the UN to the Met Office are changing their terminology, and using stronger language to describe the situation we’re in,” she said. The United Nations secretary general, António Guterres, talked of the “climate crisis” in September, adding: “We face a direct existential threat.” The climate scientist Prof Hans Joachim Schellnhuber, a former adviser to Angela Merkel, the EU and the pope, also uses “climate crisis”. In December, Prof Richard Betts, who leads the Met Office’s climate research, said “global heating” was a more accurate term than “global warming” to describe the changes taking place to the world’s climate. In the political world, UK MPs recently endorsed the Labour party’s declaration of a “climate emergency”.
The scale of the climate and wildlife crises has been laid bare by two landmark reports from the world’s scientists. In October, they said carbon emissions must halve by 2030 to avoid even greater risks of drought, floods, extreme heat and poverty for hundreds of millions of people. In May, global scientists said human society was in jeopardy from the accelerating annihilation of wildlife and destruction of the ecosystems that support all life on Earth…”
“San Francisco is the first American city to ban facial recognition software used by police and other agencies. Bloomberg QuickTake [YouTube] explains why the technology’s advance is so alarming to regulators, the public, and even the people developing it.”
See also: Government Is Using Most Vulnerable People to Test Facial Recognition Software; GAO Report – Facial Recognition Technology; and Yes, Americans can opt-out of airport facial recognition – and it is not easy.
U.S. Merit Systems Protection Board Congressional Budget Justification FY 2020: “Over the last year, the U.S. Merit Systems Protection Board (MSPB or Board) has worked to improve the effectiveness and long-term impact of its missions function in response to the Office of Management and Budget’s (OMB) memorandum M-17-22, “Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce.”… If the President’s Budget Request of $42,265,500—which represents a 10% cut to our FY 2019 funding level—is enacted, MSPB will have to cut its workforce since personnel costs represent approximately 80% of our budget. Additionally, this will affect performance results for: (1) average processing time for both initial appeals and petitions for review (PFR); (2) the scope and number of merit system studies produced; (3) MSPB’s review of OPM’s significant actions and rules and regulations; (4) conducting outreach; (5) internal program evaluation; (6) our ability to conduct surveys in support of merit systems studies and reports, obtaining customer feedback; (7) our critical IT modernization efforts; and (8) a potential relocation of our Washington, D.C.Headquarters as a result of lease expiration. All of these issues are overshadowed by the backlog of approximately 2,000 PFRs before the Board due to the lack of quorum since January 2017…” [emphasis added]
CNBC – “Google tracks a lot of what you buy, even if you purchased it elsewhere, like in a store or from Amazon. Last week, CEO Sundar Pichai wrote a New York Times op-ed that said “privacy cannot be a luxury good.” But behind the scenes, Google is still collecting a lot of personal information from the services you use, such as Gmail, and some of it can’t be easily deleted. A page called “ ” shows an accurate list of many — though not all — of the things I’ve bought dating back to at least 2012. I made these purchases using online services or apps such as Amazon, DoorDash or Seamless, or in stores such as Macy’s, but never directly through Google. But because the digital receipts went to my Gmail account, Google has a list of info about my buying habits…” [I had no idea about this tracking – it is real, and it cannot be deleted.]
Vox – Most new publications, upon their launch, seek to promote their content as novel, surprising, exciting. A new journal that began publishing this week does … the opposite of that. “Start with the name: Series of Unsurprising Results in Economics (SURE). The journal publishes papers with findings that are, well, really boring — so boring that other journals rejected them just for being boring. Its first paper, published Tuesday, is about an education intervention that was found to have no effects at all on anything. But before you close this tab, hear me out. SURE is actually far from boring, even if the papers it publishes are guaranteed to be, as the name implies, unsurprising. In fact, it’s a pretty big deal, and a significant step toward fixing a major problem with scientific research.
SURE exists to fight “publication bias,” which affects every research field out there. Publication bias works like this: Let’s say hundreds of scientists are studying a topic. The ones who find counterintuitive, surprising results in their data will publish those surprising results as papers. The ones who find extremely standard, unsurprising results — say, “This intervention does not have any effects,” or, “There doesn’t seem to be a strong relationship between any of these variables” — will usually get rejected from journals, if they bother turning their disappointing results into a paper at all. That’s because journals like to publish novel results that change our understanding of the field. Null results (where the researchers didn’t find anything) or boring results (where they confirm something we already know) are much less likely to be published. And efforts to replicate other people’s papers often aren’t published, either, because journals want something new and different…”