Law and Legal
“On May 21, 2018, a United States Supreme Court majority held in Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018) (link is external), that, “Congress has instructed in the Arbitration Act that arbitration agreements providiing for individual proceedings must be enforced, and neither the Arbitration Act’s saving clause nor the NLRA suggests otherwise.” In other words, as summarized by NPR’s Nina Totenberg, “the 1925 Federal Arbitration Act trumps the National Labor Relations Act and that employees who sign employment agreements to arbitrate claims must do so on an individual basis — and may not band together to enforce claims of wage and hour violations.” http://wamc.org/post/supreme-court-decision-delivers-blow-workers-rights (link is external). The dissenting opinion, which Justice Ginsburg read from the bench, begins by framing (and answering) the question before the court, “Does the Federal Arbitration Act … permit employers to insist that their employees, whenever seeking redress for commonly experienced wage loss, go it alone, never mind the right secured to employees by the National Labor Relations Act … ‘to engage in …concerted activities’ for their ‘mutual aid or protection’? … The answer should be a resounding ‘No’.” In its rationale, the dissent cites, among other cases, research, and scholarship, Professor Judith Resnik’s study of arbitration data, “Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale L. J. 2804, 2904 (2015) (analyzing available data from the consumer context to conclude that “private enforcement of small-valueclaims depends on collective, rather than individual, action.” (p.58). Prof. Resnik’s article is available from the open access Yale Law School Legal Scholarship Repository.
In order to preserve and study the effects of consumer arbitration in the United States, Professor Judith Resnik together with a team of student Research Assistants and Law Librarians created an open access archive of data from the American Arbitration Association. https://osf.io/qmtsu/. (link is external)
“Demand for electric vehicles (EVs) is primed for the passing lane. While EVs accounted for only about 1 percent of global annual vehicle sales in 2016 and just 0.2 percent of vehicles on the road, McKinsey estimates that by 2030 EVs (including battery electric vehicles and plug-in hybrids) could rise to almost 20 percent of annual global sales (and almost 35 percent of sales in Europe). These rates could rise even faster under aggressive scenarios. Already, demography is proving to be destiny. Recent surveys suggest that 30 percent of car-buying individuals and nearly 50 percent of millennials will consider purchasing an EV for their next car instead of one powered by a traditional internal-combustion engine (ICE)..”
“Eight of the 15 cities or towns with the largest population gains were located in the South in 2017, with three of the top five in Texas, according to new population estimates released today by the U.S. Census Bureau. “San Antonio, Texas, tops the list with the largest population gain with an increase of over 24,200 people – an average of 66 people per day between 2016 and 2017,” said Amel Toukabri, a demographer in the Population Division of the Census Bureau. “That’s a growth rate of 1.6 percent. This growth was enough to push San Antonio’s population above the 1.5 million mark.” Some of the other cities with the largest population gains were Phoenix, Ariz. (24,000); Dallas, Texas (18,900); Fort Worth, Texas (18,700); Los Angeles, Calif. (18,600); Seattle, Washington (17,500); and Charlotte, N.C. (15,600). Regarding percentage change in population, 10 of the 15 fastest-growing large cities were located in the South, with seven in Texas. Between 2016 and 2017, Frisco, Texas (near Dallas), was the fastest-growing large city (population of 50,000 or more) at 8.2 percent, making its growth rate more than 11 times faster than the nation’s growth rate of 0.7 percent. See below for some of the other fastest-growing large cities…”
Wright, Andrew McCanse, Justice Department Independence and White House Control (February 18, 2018). Available at SSRN: https://ssrn.com/abstract=3125848 or http://dx.doi.org/10.2139/ssrn.3125848 [h/t Joe Hodnicki]
“Problematic relations between the White House and the U.S. Department of Justice stand out amidst the broader tumult of President Donald Trump’s first year in office. With respect to written policy restricting contacts between the White House staff and the Department, the Trump White House has followed the general contours of predecessor administrations. Those policies recognize that White House contacts restrictions vary with the Department’s complex functions, restrict channels of contact, and restrict personnel authorized to make contacts. They also grant limited exceptions where White House-Department contact is required to assist the President in the performance of a constitutional duty and contact would be appropriate from a law enforcement perspective. A number of episodes, however, suggest that the President and senior administration officials have not honored the spirit, and in some cases the letter, of that contacts policy.
One of the frequent criticisms leveled against President Trump is that he disregards many norms and traditions that have been observed by presidential administrations of both parties for decades. Restrictions on White House interference in criminal investigations do not merely protect norms. Rather, those policies also seek to prevent unconstitutional conduct by the President and his political appointees. This Article demonstrates that political interference by the President undertaken in bad faith could violate the Take Care Clause even in the absence of a criminal statute. Obstructive behavior is even worse. Whether or not the President is indictable for the commission of a statutory criminal offense of obstruction of justice during his tenure in office, this Article explains why the President may violate the Take Care Clause independently of criminal offenses.
A principle of political noninterference by the White House in the federal prosecution function in particular matters is consistent with Article II. Neither the Vesting Clause, the President’s position atop the Executive Branch, nor the President’s broader enforcement discretion defeat the anti-interference principles commanded by the Presidential Oath and the Take Care Clause. It is a question that goes to the very concept of Rule of Law itself. However, political processes, rather than justiciable legal proceedings, serve as the presumptive source of Take Care Clause enforcement as to White House-Department relations.”
Washington Post: MAJETE WILDLIFE RESERVE, Malawi – “Two decades ago, this patch of Malawian forest was almost emptied of wildlife. The last elephants had been poached. The lions had been caught in snare traps. Other species died off as their range was diced by machete-wielding farmers. Now the animals have returned in a modern-day Noah’s ark — a bold attempt by private philanthropists and environmentalists to move wildlife from other parts of the continent.Hundreds of miles from this dense forest, the animals were scooped up in harnesses dangling from construction cranes. They were carried into white metal storage containers, with the occasional elephant trunk peeking out. Then they crisscrossed southern Africa in commercial planes and flatbed trucks. By almost any measure, Africa’s wildlife has suffered immensely in recent decades. Over 90 percent of the continent’s elephants have vanished over the last century. The lion population has crashed by more than 40 percent since 1993. There are fewer than 1,000 mountain gorillas in the wild. There are only two northern white rhinos in existence. African Parks, the nonprofit organization that arranges the shipments of the animals, aims to restore populations that once existed in some of the world’s most remote places. It has trucked 520 elephants across Malawi. It flew 20 black rhinos from South Africa to Rwanda. This month, it started bringing rhinos back to Chad, where they were wiped out three decades ago…”
See also Coyote Carnage, Yale Environment 360: The Gruesome Truth about Wildlife Killing Contests – “Coyote killing competitions, where contestants vie to shoot the most animals, are held throughout the U.S. But some hunting groups are denouncing these events as unethical, and states from New Mexico to New York are considering bans on these and other wildlife killing contests.”
“The Maryland Department of Natural Resources launched an innovative new tool to evaluate the conservation benefits and ecosystem “value” of every parcel of land across the state. The Parcel Evaluation Tool was designed to identify and prioritize the conservation and protection of ecologically important, sensitive, and valuable land and watershed resources in Maryland for use by the department, land conservation organizations and trusts, local and state planners, and individual property owners. The do-it-yourself tool incorporates the department’s latest mapping technologies and scoring formulas to determine areas of high-ecological and natural resources value. Users can even create a Conservation Benefits and Ecosystem Service Assessment Report Card, which analyzes and rates individual parcels on a number of factors, including coastal resiliency, connectivity, habitat and more. “This innovative resource and tool integrates various federal and state data into a single, easy-to-navigate platform,” Maryland Natural Resources Secretary Mark Belton said.“The private and public sectors can utilize this robust scientific tool to make better-informed decisions on land acquisition, conservation, planning and use, while members of the public can use it to find out how their parcel or property scores.”
“President Donald Trump uses a White House cellphone that isn’t equipped with sophisticated security features designed to shield his communications, according to two senior administration officials — a departure from the practice of his predecessors that potentially exposes him to hacking or surveillance. The president, who relies on cellphones to reach his friends and millions of Twitter followers, has rebuffed staff efforts to strengthen security around his phone use, according to the administration officials.The president uses at least two iPhones, according to one of the officials. The phones — one capable only of making calls, the other equipped only with the Twitter app and preloaded with a handful of news sites — are issued by White House Information Technology and the White House Communications Agency, an office staffed by military personnel that oversees White House telecommunications.
While aides have urged the president to swap out the Twitter phone on a monthly basis, Trump has resisted their entreaties, telling them it was “too inconvenient,” the same administration official said…
Carbon Black: “Despite investing heavily in security, financial institutions continue to experience cyber attacks at a rapid pace. Conducted primarily for the purpose of yielding illicit financial gain, cyber attacks against the financial services industry are increasing in sophistication and are often undetectable, global and instantaneous. This will be one of the themes of this year’s FS-ISAC Annual Summit, taking place in Boca Raton this week. To better understand how cybercriminals remain undetected in their attacks against the financial services industry, Carbon Black recently collected responses from CISOs at 40 major financial institutions, including six of the top 10 global banks. In the report, Modern Bank Heists: Cyberattacks & Lateral Movement in the Financial Sector, survey respondents revealed trends in lateral movement, counter incident response, integrity attacks and the most concerning threat actors financial institutions are currently facing…”
An overwhelming majority (90%) of CISOs responding to the survey reported experiencing some kind of attempted ransomware attack during the past year. However, what’s more concerning is that 1 in 10 respondents reported encountering destructive attacks unrelated to ransomware, and we believe these types of attacks will only increase in size as more hackers become punitive. From application attacks to fileless malware, destructive attacks enable cybercriminals to move freely and laterally within an organization’s network and often go completely overlooked until it’s too late…”
Motherboard: This story is part of When Spies Come Home, a Motherboard series about powerful surveillance software ordinary people use to spy on their loved ones. “The Internet Archive’s goal, according to its website, is “universal access to all knowledge.” As part of that mission, the non-profit runs the Wayback Machine, an online tool that anyone can use to digitally preserve a snapshot of a website. It provides an important public service, in that if a company tries to quietly change its policy, or perhaps a government tries to scrub a position from its website, the Wayback Machine can provide robust proof of the switch. But the Internet Archive has been purging its banks of content related to a company which marketed powerful malware for abusive partners to spy on their spouses. The news highlights the broader issue of the fragility of online archives, including those preserving information in the public interest. “Journalists and human rights defenders often rely on archiving services such as the Wayback Machine as tools to preserve evidence that might be key to demand accountability,” Claudio Guarnieri, a technologist at human rights charity Amnesty International, told Motherboard in an online chat. The company in question is FlexiSpy, a Thailand-based firm which offers desktop and mobile malware. The spyware can intercept phone calls, remotely turn on a device’s microphone and camera, steal emails and social media messages, as well as track a target’s GPS location. Previously, pages from FlexiSpy’s website saved to the Wayback Machine showed a customer survey, with over 50 percent of respondents saying they were interested in a spy phone product because they believe their partner may be cheating. That particular graphic was mentioned in a recent New York Times piece on the consumer spyware market…”
David Brock, Computer History Museum: “The experience of women, and the issues of gender and sexuality, are vitally important to our understanding of the story of computing, and hence our contemporary world, for many reasons. Perhaps most straightforwardly, women have been ubiquitous throughout the history of computing as makers and users of it. As Eileen Clancy, the archivist and City University of New York graduate student, so aptly put it in her recent talk “Sekiko Yoshida: Abacus ‘Software’ in the Early US Space Program” at the Society for the History of Technology’s 2017 meeting: “The women are always there, if you look for them.” In contrast to their essential roles, women have far too often been rendered invisible, absent from historical accounts and understandings. Sometimes, this invisibility is a deliberate erasure in which the contributions of women to computing work of various sorts was devalued culturally and economically, and thus went without recognition or documentation. Indeed, as the historian of computing Marie Hicks recently noted at a fascinating CHM Live event at the Computer History Museum about her new book Programmed Inequality: How Britain Discarded Women Technologists and Lost its Edge in Computing, it was the very fact that women did particular kinds of work in computing that this work was devalued, and unrecorded. Hicks’ carefully researched and thoughtful study treats the experience of women, and the centrality of gender and sexuality, in the history of computing in Britain in the crucial decades of the 1940s to the 1970s..”
Dept. of the Interior Interior moves to lift restrictions on hunting bears, wolves using bait and spotlights
AP: “The Trump administration is moving to reverse Obama-era rules barring hunters on some public lands in Alaska from baiting brown bears with bacon and doughnuts and using spotlights to shoot mother black bears and cubs hibernating in their dens. The National Park Service issued a notice Monday of its intent to amend regulations for sport hunting and trapping in national preserves to bring the federal rules in line with Alaska state law. Under the proposed changes, hunters would also be allowed to hunt black bears with dogs, kill wolves and pups in their dens, and use motor boats to shoot swimming caribou. These and other hunting methods — condemned as cruel by wildlife protection advocates — were outlawed on federal lands in 2015. Members of the public have 60 days to provide comment on the proposed new rules…”
CRS report via FAS – False Statements and Perjury: An Overview of Federal Criminal Law, Charles Doyle, Senior Specialist in American Public Law. May 11, 2018.
“Special Counsel Robert Mueller reportedly warned President Trump’s lawyers in a March meeting that if the President declined to participate in a voluntary interview, Mueller could issue a subpoena compelling the President’s testimony before a grand jury. The alleged exchange raises the question of whether a sitting President, consistent with the separation of powers and Article II of the Constitution, may be required to comply with a subpoena for his testimony as part of an ongoing criminal investigation. Before addressing this question, it is necessary to define the type of subpoena that may be envisioned by the Special Counsel. Special Counsel Mueller, who has been vested with the powers and duties of “any United States Attorney,” has not been provided independent and unilateral authority to issue generalized subpoenas for testimony. Instead, any subpoena to the President would likely be issued by a grand jury—at the request of the Special Counsel—but under the authority of the judiciary. The subpoena would therefore accurately be framed as an attempt by the judicial branch to compel testimony from the President, giving rise to possible concerns under the separation of powers. The Supreme Court has not directly confronted the question of compelled presidential testimony; however, the question is not a novel one. It is, in fact, a question that has been the subject of some debate throughout American history and any evaluation of the President’s obligations should be undertaken within that historical context…”
The Verge: “Documents obtained by the ACLU of Northern California have shed new light on Rekognition, Amazon’s little-known facial recognition project. Rekognition is currently used by police in Orlando and Oregon’s Washington County, often using nondisclosure agreements to avoid public disclosure. The result is a powerful real-time facial recognition system that can tap into police body cameras and municipal surveillance systems. According to further reporting by The Washington Post, the Washington County Sheriff pays between $6 and $12 a month for access to Rekognition, which allows the department to scan mug shot photos against real-time footage. The most significant concerns are raised by the Orlando project, which is capable of running real-time facial recognition on a network of cameras throughout the city. The project was described by Rekognition project director Ranju Das at a recent AWS conference in Seoul…”
Reveal – Center for Investigative Reporting: “Backing away from attempts at censorship, the National Park Service on Friday released a report charting the risks to national parks from sea level rise and storms. Drafts of the report obtained earlier this year by Reveal from The Center for Investigative Reporting showed park service officials had deleted every mention of humans causing climate change. But the long-delayed report, published Friday without fanfare on the agency’s website, restored those references. The scientific report is designed to help 118 coastal parks plan for protecting natural resources and historic treasures from the changing climate. Maria Caffrey, the study’s lead scientist, said she was “extremely happy” that it was released intact…”
WTOP.com: “The findings of the latest publicly available Federal Transit Administration inspection reports include dark tunnels, risks to workers, train operators failing to follow safety rules before opening doors, and Metro’s own compliance inspectors being unable to verify fixes. Federal inspectors found two stretches of consecutive loose fasteners on the Orange Line near Deanwood Jan. 10. Inspectors said the condition met Metro’s criteria for the most serious maintenance problems, known as a “black condition,” but neither area was protected with a speed restriction for passing trains. The Metro and contract inspectors deemed it to be a maintenance condition that needed to be addressed, but not a safety issue. On the Red Line between Tenleytown and Bethesda Feb. 12, inspectors found six consecutive failing fasteners within 15 feet and four consecutive defective fasteners in another spot. Because there were no signs of the rail sliding back and forth yet, a Metro inspector also deemed those maintenance conditions. Metro inspectors made a similar decision Feb. 8 on the Red Line between Gallery Place and Judiciary Square, even though the rails were sliding about half an inch when a train was on them…”
BookRiot – Here’s how to find diverse books before they’re published so you can read and nominate them with plenty of time for them to show up on the monthly LibraryReads list. “When you can find these books and read them, you can become a better advocate for these titles and ultimately, a better advocate for the whole of the readers in the communities you serve.)”
Washington Post/ Tamar Haspel: “The Agriculture Department recently released the latest measurements of pesticide residues in our food, in the form of the 2016 Pesticide Data Program results, so it seems timely to talk pesticides and organics. And bias. I’ve been following these issues for a long time, and I’ve seen a lot of evidence that organic foods have lower levels of pesticide residues than conventional foods, so I was surprised to read a two-part analysis on Forbes.com by Steve Savage, a conventional-side plant scientist I know and respect, showing that the number of residues, and the amount of pesticide in those residues, were virtually the same for organic and conventional foods. What could be happening in our food supply for the difference in pesticide levels to narrow so markedly? That would make an interesting column, I thought. So I started asking people, but nobody had a good explanation. There’s no evidence for widespread fraud (although there’s evidence for some), and the only other explanation was drift. Because organics are often grown in the proximity of their conventional brethren, drift happens. But that’s an awful lot of drift. And then I talked with Sonya Lunder, senior analyst at the Environmental Working Group. She’s also a data geek, a woman after my own heart, and she had actually tried to replicate Savage’s results. She couldn’t. So I figured I’d better try to do it myself. And I couldn’t, either.
The reason we couldn’t was that Savage’s data were spectacularly wrong. He reported that conventional foods had an average of 3.1 different pesticides, and organic had 2.6. The real numbers, which I downloaded the entire residue database to get, are 3.2 for conventional (okay, that’s close), and 0.8 for organic (definitely not close). I called the USDA to make sure I hadn’t screwed something up, and it confirmed my numbers. This was an honest mistake, and when I pointed it out, Savage immediately checked for himself, confirmed the error and set about retracting the articles. He told me he felt terrible for getting it wrong…
Supreme Court decision – companies can use arbitration clauses to block employees class action suits
The New York Times: “The Supreme Court on Monday ruled that companies can use arbitration clauses in employment contracts to prohibit workers from banding together to take legal action over workplace issues. The vote was 5 to 4, with the court’s more conservative justices in the majority. The court’s decision could affect some 25 million employment contracts. Writing for the majority, Justice Neil M. Gorsuch said the court’s conclusion was dictated by a federal law favoring arbitration and the court’s precedents. If workers were allowed to band together to press their claims, he wrote, “the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace.” Justice Ruth Bader Ginsburg read her dissent from the bench, a sign of profound disagreement. In her written dissent, she called the majority opinion “egregiously wrong.” In her oral statement, she said the upshot of the decision “will be huge under-enforcement of federal and state statutes designed to advance the well being of vulnerable workers.” Justice Ginsburg called on Congress to address the matter. Brian T. Fitzpatrick, a law professor at Vanderbilt University who studies arbitrations and class actions, said the ruling was unsurprising in light of earlier Supreme Court decisions. Justice Gorsuch, he added, “appears to have put his cards on the table as firmly in favor of allowing class actions to be stamped out through arbitration agreements.” As a result, Professor Fitzpatrick said “it is only a matter of time until the most powerful device to hold corporations accountable for their misdeeds is lost altogether.”
See also BuzzFeed: “The ruling — written by Justice Neil Gorsuch, who was nominated to the bench by President Trump in 2017 — immediately affects an estimated 25 million contracts, according to the Economic Policy Institute. Labor lawyers say it will embolden employers to add such provisions to contracts going forward, knowing the courts will support them.”
“The Wind Integration National Dataset (WIND) Toolkit is an update and expansion of the Eastern Wind Integration Data Set and Western Wind Integration Data Set. It supports the next generation of wind integration studies. The WIND Toolkit includes meteorological conditions and turbine power for more than 126,000 sites in the continental United States for the years 2007–2013. It features three data sets:
- The meteorological data set includes basic information on the weather conditions in each 2-km x 2-km grid cell. The meteorological data set also includes parameters such as wind profiles, atmospheric stability, and solar radiation data in those cells. This complete data set is not yet publicly available, though some of the data is made available with the power data set.
- The power data set was created using the wind data at 100-meter hub height and site-appropriate turbine power curves to estimate the power produced at each of the turbine sites.
- The forecast data set includes forecasts for 1-hour, 4-hour, 6-hour, and 24-hour forecast horizons.
The WIND Toolkit has been funded by the U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Wind and Water Power Technologies Office and was created through the collaborative efforts of NREL and 3TIER…”