Monthly Archives: December 2018

A Truly Muscular Reply Brief in a Case of Great Importance

One case I’ve been following with great interest is (well, was) Michaels v. Sessions in which by a strange turn of events the Supreme Court is being asked to decide whether
Matthew G. Whitaker is or is not the Attorney General.

The underlying matter isn’t in my wheelhouse, having to do with the constitutionality of a federal ban on possession of firearms by convicted felons. Michaels lost in the court of appeals, and duly asked the Supreme Court to hear his appeal via a petition for writ of certiori. While that was pending, Trump forced out Sessions; whether Sessions legally resigned or was fired is actually a not-irrelevant issue. Trump then tapped Whitaker to take over the job of Attorney General, purporting to exercise power delegated under the Vacancies Act.

The Vacancies act is a mire of constitutional and structural issues, but suffice it for now to say that it does give the President vast authority to fill vacancies with a wide variety of government employees, but it also contains exceptions, one of which very arguably applies to the Attorney General’s office becuase there is a specific statute that provides for succession in the AG’s office. Under that statute Rod Rothstein, the #2 in the department, would automatically becoming the Acting Attorney General until a successor was properly nominated and confirmed (or, I presume, given an interim appointment–an option that the Senate has quietly foreclosed by having pro-forma sessions every few days during the recess thus preventing the Constitutional trigger that permits interim appointments).

When a person sues the United States about a regulation, it is common to caption (that’s lawyer for “title”) the case with the name of the movant and the government official who heads the agency. When there is turnover at the head of an agency, as there often is, it is usually routine for the name of the case to change too — on request of a party, the court just amends the caption of the case.

That is what happened with the petition for certioria — until Michaels’s lawyers objected. Earlier this month they filed a “Motion to Substitute” in the Supreme Court in which they asked the Court to rule that the case should be captioned “Michaels v. Rothstein” rather than “Michaels v. Whittaker” as Rothstein, not Whittaker, was in fact the Acting Attorney General. Needless to say, the government objected. Michael’s lawyers replied with one of the most muscular briefs I’ve ever read. If you are a lawyer or law student, this is a must-read.

The Supreme Court has not yet ruled, and it could do so without a hearing if it chose to do so.

Posted in Law: Administrative Law, Law: Constitutional Law, Law: The Supremes | Leave a comment

Another One

Real or The Onion?  “Blind creature that buries head in sand named after Donald Trump

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You Guess

Real or The Onion?  Soldier Has Suspicion Murder Charge Due To His Admission On Live TV  You be the judge.  Answer below.


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Tor’s Matrix

Tor, the SF&F publisher, just sent out a funny chart (under the headline “fear is the cat-killer”) that I felt like sharing:

Posted in Completely Different | Leave a comment

I’m on the ‘This Week in Health Law’ Podcast

Nicholas Terry of Indianan University was kind enough to ask me to join him and other experts on episode 151 (!) of  his podcast, This Week in Health Law (TWIHL) which was devoted to AI and health care:


I am joined by Abbe Gluck, Professor of Law and the Faculty Director of the Solomon Center for Health Law and Policy at Yale Law School. In November 2018 her team pulled together an excellent roundtable on “The Law and Policy of AI, Robotics, and Telemedicine in Health Care.” This episode of TWIH is the first of two taking a deeper dive into just a few of the  issues that were so well presented at the roundtable. Here we were joined by Michael Froomkin, the Laurie Silvers and Mitchell Rubenstein Distinguished Professor of Law at the University of Miami School of Law and by Nicholson Price, Assistant Professor of Law at The University of Michigan Law School. Topics ranged from consent in the next generation of healthcare research to data protection, and appropriate regulatory models.

Posted in AI, The Media | Leave a comment

CDT is Doing Something About Voting Security

This is really cool: the Center for Democracy and Technology (CDT) is launching VotingWorks — a public interest non-profit that wants to build better, i.e. safe and secure, voting machines. I love it.

VotingWorks aims to shake up the voting equipment market by creating a new non-profit voting systems manufacturer with the mission of being the public works for voting systems. VotingWorks will do this by developing voting equipment that 1) embody the state-of-the-art in usability, security, design, and development; 2) are affordable to maximize any benefit to all sizes of election jurisdictions; 3) allow speedy, efficient voting processes; and, 4) that is extensible to the needs of all types of localities. And all of this will be developed in the open for the public good.

The need here is very real. Election officials often find themselves stuck between a rock and a hard place when choosing a new voting system; there are often few expensive choices that come with serious limitations in how these systems can be used, modified, improved, and studied. CDT has advised localities in procurement decisions in the past and contributed to efforts where jurisdictions are designing their own voting systems – such as the Los Angeles County VSAP project – and the common factor in all these cases is the wide variety of needs and requirements that elections present, and how few systems can meet them all.

CDT will serve as a home for VotingWorks until it becomes its own non-profit entity. This partnership means VotingWorks is working closely with the CDT’s experienced team to rapidly ramp up operations and begin in earnest the development of affordable, secure, open-source voting machines for use in US public elections.

Two thumbs up from here.  We need this.

Posted in Law: Elections, Sufficiently Advanced Technology | 1 Comment