[Orin Kerr writes: My colleague Julian Nyarko reached out to me with an interesting guest post looking into whether AI is being used to write parts of law review articles published in top journals, using estimates from Pangram's AI detection software. Professor Nyarko's basic finding, as I understand it: Most law review articles published in top journals this year have no AI writing at all, although some have a small amount of AI writing, a handful have a substantial amount, and one article was more than 50% AI-written. I reprint Professor Nyarko's post below. All that follows was written by Professor Nyarko.]
Over the last few weeks, there has been some interesting discussion around the use of AI in the writing of law review articles, with views among legal scholars varying quite widely. To me, the question of whether AI use ought to be prohibited or even just frowned upon is genuinely hard.
In my area of empirical legal studies, I believe most scholars would agree that the process of *thinking* through a project and the process of *writing* the paper, while not unrelated, are largely separate undertakings. This is because empirical analyses are often planned and executed in meticulous detail, and the main figures and tables are created before a single word of the article's narrative prose is drafted. Indeed, the increasingly prevalent practice of preregistration disincentivizes scholars from changing what is thought to be the core contribution--the empirical analysis--during the final stages of writing the paper. Granted, the originally intended framing and the interpretation of the results may undergo some changes during the drafting process. But those are also the parts of a paper that empiricists tend to read most skeptically. In fact, when reading a research article, many empirical scholars make it a point to first examine the tables, figures, and the method section, precisely because they want to get a chance to form their own views on what the data says before looking at the authors' interpretation of it.
That said, I also understand that this sentiment about AI in writing is not necessarily shared within many other legal subfields. When a doctrinal or non-formal theoretical argument is the main contribution, the process of writing it down can infuse precision and rigor, laying bare limitations and nuances that the thinker-writer is then forced to reconcile. The discussion is further complicated by the fact that not all AI use is the same. Among others, AI could be used to write from scratch, to rephrase, to edit, to polish--and to the extent that there is a AI writing displaces thinking, this effect would likely differ across these specific use cases.
But whatever one's preferred normative position is, I thought it would be helpful to get a descriptive sense of how prevalent AI use actually is in legal research. So this is what I want to report on here. Since I personally am not convinced that AI writing should be stigmatized (although I remain open to persuasion), I'm not going to name any articles or authors and will only report a few aggregate results. Read More
From Judge Michael Newman (S.D. Ohio) Friday in Moorman v. Doe No. 1; since this is a decision at the temporary restraining order stage, the factual assertions are preliminary conclusions by the judge, not final findings of fact:
Plaintiff Sean Moorman … alleges Defendants—seven unidentified United States Immigration and Customs Enforcement ("ICE") officers, in their official capacities—have retaliated (and continue to retaliate) against him for engaging in activity protected by the First Amendment ….
The motion for TRO was filed around 7 P.M. on Tuesday, September 1, 2026. The Court heard extensive oral argument the next day at 4 P.M., lasting more than one hour…. At the time of the phone conference, the AUSA [who represented the government -EV] failed to contradict the Moorman's factual assertions and requested a two-week extension to file a response brief. As detailed herein, based on the serious nature of the allegations involved, and the threat of ongoing constitutional violations, this extension would be inappropriate. See Elrod v. Burns (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.")….
Moorman volunteers as an "ICE watcher" in his spare time. As uncontradicted by the AUSA, Moorman "lawfully and peacefully" documents interactions between ICE officers and the Springfield community, noting potentially violent or unlawful action by ICE officers….
According to Moorman, by August 20, 2026, certain ICE officers had identified Moorman as an ICE watcher and began "lashing out" at him. Specifically, on August 20, 2026, Moorman recorded … [an] ICE vehicle driven by Defendant John Doe No. 2…. "John Doe No. 2 turned his Jeep around and accelerated dangerously towards [Moorman]'s vehicle as though to ram it, before veering away at the last moment and disappearing."
Labor Day is a great time to remember that we can make workers vastly better off by empowering more of them to vote with their feet, both within countries and through international migration.
Each Labor Day since 2021, I have written posts explaining how breaking down barriers to labor mobility can help many millions of workers around the world. The main points everything last year's post are just as relevant today. So I am reprinting it with some updates and modifications, many of them related to the awful deterioration in immigration policy over the last year:
Today is Labor Day. As usual, there is much discussion of what can be done to help workers. But few focus on the one type of reform that is likely to help more poor and disadvantaged workers than virtually anything else: increasing labor mobility. In the United States and around the world, far too many workers are trapped in places where it is difficult or impossible for them to ever escape poverty. They could vastly improve their lot if allowed to "vote with their feet" by moving to locations where there are better job opportunities. That would also be an enormous boon to the rest of society.
Internationally, the biggest barriers condemning millions to lives of poverty and oppression are immigration restrictions. Economists estimate that eliminating legal barriers to migration throughout the world would roughly double world GDP - in other words, making the world twice as productive as it is now. A person who has the misfortune of being born in Cuba or Venezuela, Zimbabwe or Afghanistan, is likely condemned to lifelong poverty, no matter how talented or hardworking he or she may be. If they are allowed to move to a freer society with better economic institutions, they can almost immediately double or triple their income and productivity. And that doesn't consider the possibility of improving job skills, which is also likely to be more feasible in their new home than in their country of origin.
The vast new wealth created by breaking down migration barriers would obviously benefit migrants themselves. But it also creates enormous advantages for receiving-country natives, as well. They benefit from cheaper and better products, increased innovation, and the establishment of new businesses (which immigrants create at higher rates than natives). Immigrants also contribute disproportionately to scientific and medical innovation, including vaccines and other medical treatments that have already saved millions of lives around the world.
The Trump Administration's massive assault on immigration of virtually every kind is predictably harming both migrants and native-born Americans, condemning hundreds of thousands of the former to a lifetime of poverty and oppression, and denying the latter the growth and innovation immigration facilitates. Most recently, thanks in part to a badly flawed Supreme Court decision, it has depriving hundreds of thousands of Haitians and others of legal status, thereby gravely harming both these migrants and the many US industries that depend on them.
As with lowering immigration restrictions, breaking down domestic barriers to labor mobility would create enormous benefits for society as a whole, as well as the migrants themselves. Economists estimate that cutting back on exclusionary zoning would greatly increase economic growth. Like international migrants, domestic ones can be more productive and innovative if given the opportunity to move to places where they can make better use of their talents.
Many proposals to help workers have a zero-sum quality. They involve attempts to forcibly redistribute wealth from employers, investors, consumers, or some combination of all three. Given that virtually all workers are also consumers, and many also have investments (e.g. - through their retirement accounts), zero-sum policies that help them in one capacity often harm them in another. Breaking down barriers to labor mobility, by contrast, is a positive-sum game that creates massive benefits for both workers and society as a whole; it similarly benefits both migrants and natives.
The same is true of breaking down barriers to the mobility of goods. Tariffs and other trade restrictions harm many more workers than they benefit, by increasing prices (which disproportionately hurt lower-income workers), and increasing the cost of inputs used by domestic industries (leading to lower employment levels and wages). In February, the Supreme Court struck down Trump's massive and unconstitutional IEEPA tariffs in a case I helped litigate. But the administration has sought to replace them with equally illegal and harmful tariffs enacted under various pretext, such as combating "forced labor" or addressing "balance of payment deficits." Litigation on these policies is ongoing.
Some on the left point out that, if investors are allowed to move capital freely, workers should be equally free to move, as well. It is indeed true that, thanks to government policies restricting labor mobility, investment capital is generally more mobile than labor. It is also true that the restrictions on labor mobility are deeply unjust. In many cases, they trap people in poverty simply because of arbitrary circumstances of birth, much as racial segregation and feudalism once did. The inequality between labor and capital, and the parallels with segregation and feudalism should lead progressives to put a higher priority on increasing labor mobility.
At the same time, it is worth recognizing that investors and employers, as a class, are likely to benefit from increased labor mobility, too. Increased productivity and innovation create new investment opportunities. The biggest enemies of both workers and capitalists are not each other, but the combination of nativists and NIMBYs who erect barriers to freedom of movement, thereby needlessly impoverishing labor and capital alike. Despite conventional wisdom to the contrary, even current homeowners often have much to gain from curbing exclusionary zoning policies that block the construction of housing needed by workers seeking to move to the region.
There are those who argue against increasing labor mobility, either on the grounds that existing communities have an inherent right to exclude newcomers, or because allowing them to come would have various negative side-effects. I address these types of arguments here, and in much greater detail in Chapters 5 and 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom. As I explain in those earlier publications, nearly all such objections are wrong, overblown, or can be ameliorated by "keyhole solutions" that are less draconian than exclusion. In addition, the vast new wealth created by breaking down barriers to mobility can itself be used to help address any potential negative effects. In the book, I also push back against claims that mobility should be restricted for the benefit of those "left behind" in migrants' communities of origin.
In recent years, there has been important progress on reducing exclusionary zoning. Several states have also enacted occupational licensing reform, which facilitates freedom of movement between states. But there is much room for further improvement on these fronts. And when it comes to international migration, we are in a period of horrific regression.
Workers of the world, unite to demand more freedom of movement!
9/7/1958: The U.S. District Court for the Eastern District of Arkansas denied the Little Rock School Board's petition to suspend its integration program. In Cooper v. Aaron (1958), the Supreme Court ordered the integration of Central High School.
In the discussion of the Kyrsten Sinema alienation of affections case, several commenters took roughly the following view: Spouses have promised fidelity to each other, and if they break those promises, they are at fault towards the other spouse. But one spouse's lover hasn't made any promises to the other spouse. The lover therefore can't be said to be at fault.
I don't think that view is right, and I don't think it fits the norm for how our legal system treats analogous scenarios. I think that on balance the abolition of the alienation of affections tort (which has happened in 45 states) is a good idea. But not for the reason that "the lover isn't at fault, only the spouses are."
Rather, alienation of affections is analogous to complicity liability. If Alan commits an intentional wrong against Betty, either a crime or a tort, and Cathy encourages Alan to do that, Cathy is generally liable. The term sometimes used for this is "solicitation," though sometimes it's seen as a form of aiding and abetting.
If Cathy helps Alan in committing the wrong, or participates in committing it, Cathy is likewise liable for aiding and abetting or conspiracy. (Both those concepts apply to civil liability as well as criminal liability.)
Perhaps most analogously to alienation of affections, if Alan breaches his contract with Betty, and Cathy encouraged him to breach it, she will in many situations be liable for intentional interference with contract. Likewise if Alan breached a fiduciary duty to Betty, and Cathy encouraged that breach.
9/6/1983: The City of Richmond solicited bids for installing plumbing fixtures at the city jail. The J.A. Croson Company's bid was denied because it did not meet the "set-aside requirement" for minority contractors. The Supreme Court declared this decision unconstitutional in City of Richmond v. J.A. Croson Co. (1989).
This tort, which lets people sue their spouses' lovers for interfering with the marriage, is litigated in about 150 new cases per year in North Carolina.
From Ammel v. Sinema, decided Friday by Judge David Bragdon (M.D.N.C.):
Ms. Ammel married Matthew Ammel in 2010. From 2014 through November 2024, they resided in Whispering Pines, North Carolina, with their three children.
Mr. Ammel met Ms. Sinema in August 2022, following his retirement from the military. At that time, Ms. Sinema was serving as a United States Senator for the State of Arizona. During her tenure in the Senate, Ms. Sinema maintained residences in both Arizona and Washington, DC. Ms. Sinema left the Senate and is currently a professor at Arizona State University and an attorney with Hogan Lovells Cadwalader in Washington, DC….
Mr. Ammel and Sinema apparently began an affair, which took place in California, New York, and Colorado. Eventually, Ms. Ammel learned of this, she and her husband separated, and she sued Sinema for "alienation of affections," a tort that North Carolina still recognizes and that is still often litigated in North Carolina courts. (Last fiscal year, for instance, there were 150 alienation of affections filings in N.C. courts; it's also apparently recognized in Hawaii, Mississippi, South Dakota, and Utah.)
To establish an alienation of affection claim, a party must show: "(1) there was a marriage with love and affection existing between the husband and wife; (2) that love and affection was alienated; and (3) the malicious acts of the defendant produced the loss of that love and affection." A malicious act "include[s] any intentional conduct that would probably affect the marital relationship." However, in cases in which the defendant has engaged in sexual intercourse with the plaintiff's spouse, malice is conclusively presumed.
The evidence [as alleged in plaintiff's Complaint] demonstrates that although the relationship between Mr. and Ms. Ammel was turbulent in 2024, there was still genuine love and affection between them, as reflected in their text messages. In October 2024, Mr. and Ms. Ammel took an anniversary trip that included intimacy and was followed by text messages in which they expressed their love for one another. The evidence also shows that love and affection was alienated by Mr. Ammel's relationship with Ms. Sinema; and since their relationship included a sexual relationship, malice is conclusively presumed.
And though the sexual conduct took place outside North Carolina, the court concluded that state and federal courts in North Carolina would have personal jurisdiction over Synema:
In early 2022, the Met fired {Anna Netrebko, a Russian national and former "reigning prima donna" of the [Met]} after [Met general manager Peter] Gelb was dissatisfied with Netrebko's failure to make a public statement following Russia's 2022 invasion of Ukraine….
Prior to 2022, Netrebko was widely reported to be a supporter of Russian President Vladimir Putin. On February 25, 2022, after Russia invaded Ukraine, Netrebko stated on Instagram, "These are very sad days and we are deeply concerned for the well-being of all people involved. Every war is a terrible tragedy. This is not a time for music but for reflection and prayer. And so we hope and pray for a swift and peaceful resolution." The following day, the Met asked Netrebko to publicly "denounc[e] Putin … using specific language" it had approved. Instead, Netrebko issued her own social media statement that she was against the war, adding, however, that she was also opposed to "forcing artists, or any public figure, to voice their political opinions in public and to denounce their homeland." That same day, Netrebko reposted a comment from a third party on her Instagram story characterizing "people from the West" who "pretend to be brave … by putting in trouble artists who asked nothing" as "human shits" and "as evil as blind ag[g]ressors."
On February 27, 2022, one day after Netrebko's post, the Met publicly stated that it "can no longer engage with artists or institutions that support Putin or are supported by him—not until the invasion and killing has been stopped, order has been restored and restitutions have been made." Two days later, on March 1, Netrebko again posted on Instagram, this time saying, "I am opposed to this senseless war of aggression and I am calling on Russia to end this war right now." In a phone call on March 2, Gelb told Netrebko to issue a statement specifically denouncing Putin, or she would be fired. Netrebko responded that, as a Russian citizen, she "could not make such a statement."
On March 3, 2022, the Met announced that Netrebko would not perform in the 2021–22 or 2022–23 seasons. About four weeks later, on March 30, Netrebko issued a public statement that she "condemn[s] the war on Ukraine," that her "position is clear," and that she is "not a member of any political party nor [ ] allied with any leader of Russia." The Met did not rehire Netrebko.
Netrebko sued for, among other things, defamation, and the court dismissed the defamation claim. But Netrebko then added claims alleging (among other things) "that after Netrebko filed this lawsuit, the Met 'started a renewed public campaign' in which Gelb defamed Netrebko." Netrebko's supplemental defamation claim is based on five of Gelb's statements quoted in three [Ukrainian and Austrian] news articles from June to July 2025:
[A.] I know lots of people have opinions about the Lindsay Clancy trial, and I wanted to pass along the Massachusetts standard criminal jury instructions for such matters. (I can't be certain that this is the instruction that was actually given in the case, but it's the recommended instruction for such cases, so I assume the actual instruction wasn't far off.) If you have followed the factual allegations in the case, please post a comment and indicate how you would have voted if you were a juror, based on your knowledge (even if limited) of the factual allegations, and why you would have so voted.
Please keep in mind two important things:
[1.] Once evidence triggering the defense is raised, the government must disprove it beyond a reasonable doubt. To draw an analogy from how people talk about the reasonable doubt standard as to other guilt/innocence questions, Massachusetts takes the view that it is better that 10 non-insane people are wrongly acquitted than that one insane person is wrongly convicted.
This is not the uniform rule in the U.S.; for instance, in federal cases, the law is almost the opposite—the defendant must prove insanity by clear and convincing evidence. Indeed, my quick research suggests that this is the rule only in a minority of states. But the law in Massachusetts on this is as settled.
[2.] The substantive rule is that a defendant is not criminally responsible if
(a) he or she "suffer[ed] from a mental disease or defect at the time of the alleged offense" (with no further definition of the terms, at least as part of the standard instruction) and
(b) either
(i) the defendant lacked "the substantial capacity to appreciate the wrongfulness or criminality of their conduct" or
(ii) the defendant lacked "the substantial capacity … to conform their conduct to the requirements of the law." (From what I understand of the Clancy defense, it is that she suffered from a mental disease and lacked the substantial capacity to refrain from killing her children—or at least there's a reasonable possibility that this was so.)
This substantive standard is likewise not a uniform view throughout the country; many other states follow different approaches. According to a Paul Robinson et al. study from 2015, about 1/3 of the states take the same substantive approach as Massachusetts does.
Plaintiff Sean Combs is a well-known musician who uses the stage names Diddy, P. Diddy, and Puff Daddy. In September 2024, he was indicted in this District on charges of racketeering, sex trafficking, and transportation to engage in prostitution, and in July 2025, he was acquitted by a jury of racketeering and sex trafficking but convicted of transportation to engage in prostitution.
This case concerns statements made about Combs in the months between his indictment and his trial. Combs alleges that Defendant Courtney Burgess falsely claimed to possess video recordings of Combs sexually assaulting celebrities and minors. Additionally, Combs claims that Defendant Ariel Mitchell—an attorney who represented Burgess—vouched for Burgess's accusations and made false statements of her own, including that a police report corroborated an accusation of rape against Combs and that Combs had used drug-laced baby oil to incapacitate his victims. Finally, Combs alleges that Defendant Nexstar Media Inc. ("Nexstar") amplified these falsehoods by broadcasting them on the cable news channel NewsNation without any investigation and despite reason to doubt their truth….
Burgess hadn't appeared to defend himself, so this opinion doesn't discuss the claims against him. But the court threw out most but not all claims against Nexstar:
Combs's defamation claim against Nexstar is based on four of the seven allegedly defamatory statements—Statements 1, 2, 4, and 5. Each of these statements arises from NewsNation's broadcasting of statements made by Mitchell or by both Mitchell and Burgess. Statement 1 is Burgess's assertion on October 31, 2024, that there existed video recordings of Combs sexually assaulting minors and celebrities, Statement 2 is Mitchell's statement also on October 31 that Combs secretly recorded himself having sex with people who did not know they were being recorded, Statement 4 is Mitchell's assertion on September 27, 2024, that a police report corroborated her client's claim that Combs raped her [likely meaning "him," which is to say Burgess] in 2018, and Statement 5 is Mitchell's accusation on October 7, 2024, that Combs used drug-laced baby oil to incapacitate people.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Bound by Oath podcast: In 1966, Los Angeles officials tried to put a man in prison for handing out leaflets in protest of a fatal police shooting. Today, we know the case as Younger v. Harris, which kicked off the doctrine of Younger abstention, the bane of many a civil rights plaintiff. On this episode, we examine the origins, the impact, and the relentless expansion of the doctrine.
New on the Short Circuit podcast: You have a First Amendment right to record the police! And a Fourth Amendment right to not show ID! But if you exercise those rights, it's OK if you're arrested.
Infantryman Robert "Bowe" Bergdahl left his post in Afghanistan in June 2009 and was promptly captured by allies of the Taliban. After five years of captivity and torture, he was released in a prisoner swap. At court-martial, he pleaded guilty and was dishonorably discharged. Unknown to him, the judge presiding over his court-martial was seeking a job in the Trump DOJ and had submitted as his writing sample an order holding that then-candidate Trump's comments that Bergdahl was a "traitor" who "deserved the death penalty" did not constitute "unlawful command influence." Bergdahl files suit in federal court to vacate the conviction. D.C. Circuit: But we don't have jurisdiction over that sort of thing.
Convinced that the president is the antichrist, man fires multiple rounds from an AK-47 at the White House. No one is hurt; he pleads guilty to injuring a dwelling. Crime of violence? D.C. Circuit: Crime of violence.
Because we love you, we do research: This First Circuit opinion is, in fact, the first time a decision in the Federal Reporter has promised to "fill in the deets[.]" Read More
[This post is co-authored with Professor Seth Barrett Tillman.]
Over the past decade, many legal challenges have turned on whether a particular position is an "officer of the United States" or an "office . . . under the United States." In the Foreign Emoluments Clause litigation, the plaintiffs argued that the President holds an "office . . . under the United States." In the Special Counsel's prosecution of Donald Trump, the former President argued that Jack Smith's position is properly characterized as a principal "officer of the United States" who must be appointed by the President pursuant to the Appointments Clause, rather than by the Attorney General. During the Amendment XIV, Section 3 litigation, state voters argued that Donald Trump was disqualified from serving as President because he took an oath of office as an "Officer of the United States" and the presidency was an "Office under the United States." All of these cases were high-profile and related to important political controversies. But there is another case pending in the courts that turns on the meaning of "Officer of the United States" that is far less in the news, but nevertheless has the potential to significantly reshape U.S. constitutional law.
The qui tam provision of the False Claims Act ("FCA") authorizes relators to pursue a case against those accused of defrauding the federal government. In short, the relators can bring a suit in the name of the United States against private parties. The relators are not appointed by the President or the Attorney General (the head of the department). Any private citizen can bring suit as a relator. For decades, any number of conservative legal scholars and practitioners have argued that the qui tam provision violates the separation of powers. In 1989, William Barr, the Assistant Attorney General for the Office of Legal Counsel, put forward that position in a memorandum opinion for the Attorney General. But in 1996, Walter Dellinger, as head of OLC, repudiated Barr's views. More recently, in United States ex rel. Polansky v. Executive Health Resources, Inc., Justice Thomas wrote that "FCA's qui tam provisions have long inhabited something of a constitutional twilight zone." In 2024, in USA ex rel. Zafirov v. Florida Medical Associates, LLC, a federal district court in the Middle District of Florida declared the qui tam provision to be unconstitutional. Judge Mizelle found that relators are properly characterized as "officers of the United States," and therefore, they had to be appointed pursuant to the provisions of the Appointments Clause. Given that the relator in this case was only a private citizen, and was not appointed per the Appointments Clause, the lawsuit was dismissed.
The Eleventh Circuit has now reversed the trial court. The unanimous panel held that relators are not "officers of the United States." The court remanded the case to the district court with directions to consider the defendants' remaining arguments in support of defendants' motion to dismiss based on the Take Care Clause and the Article II Vesting Clause.
In this blog post, we will walk through the circuit court's analysis that relators are not "officers of the United States," and we speculate on the next steps for this case. A starting point for interested readers is the amicus brief we filed before the Eleventh Circuit in the challenge to Special Counsel Jack Smith's appointment. We tried to bring some clarity to what is an otherwise complicated area of law: Where is the line between an "Officer of the United States" and a mere employee?
The crux of the Eleventh Circuit's decision is that relators "do not hold a continuing position," and therefore, they are not "Officers of the United States," and thus, they do not need to be appointed by the President or the Attorney General. The Eleventh Circuit correctly cites the Supreme Court's recent decision in Lucia v. SEC, which stated that an "officer of the United States" position must be a "'continuing' position established by law." This test from Lucia stretches back to three nineteenth-century decisions. United States v. Hartwell (1868) stated that the term officer "embraces the ideas of [i] tenure, [ii] duration, [iii] emolument, and [iv] duties." United States v. Germaine (1879) further explained that the "duties" of an "Officer of the United States" must be "continuing and permanent, not occasional or temporary." The Court would apply the Germaine-Hartwell framework in Auffmordt v. Hedden (1890).
Lucia primarily focused on a single factor of the four-factor Germaine-Hartwell test: continuity. What has created some confusion is how to map Lucia's "continuity" test to the factors of the Germaine-Hartwell four-factor test. What must be "continuous"? Must the "tenure" be continuous? Or, must the "duration" of the position be continuous? Or, must the duties be "continuous"? Before Lucia, the courts never squarely addressed this issue. But after Lucia, this question may no longer matter. The requirement that matters now is continuity. But what does it mean for a position to be "continuous"?
The Eleventh Circuit adopted the framework from Auffmordt and an earlier circuit court decision from Chief Justice Marshall, United States v. Maurice. The Eleventh Circuit panel stated:
So in determining whether a person holds a continuing position established by law, the Supreme Court has evaluated whether that person holds a "permanent" tenure, whether his employment has "duration as to time," and whether he receives a "continuing emolument." Auffmordt v. Hedden, 137 U.S. 310, 327–28 (1890); Germaine, 99 U.S. at 511–12. And with respect to "duties," Chief Justice Marshall asked "if [the] duties continue, though the person be changed." United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747) (Marshall, C.J.); see also Auffmordt, 137 U.S. at 327 (relying on Maurice in a continuing-position analysis).
The panel opinion, which I join, states that "every attorney who signed the brief bears some responsibility" for inclusion of fake citations. I agree with that general principle, subject to a clarification as to what I think it must entail. The opinion also quotes, with evident approval, the Ninth Circuit's declaration that "[a] competent and diligent attorney cannot decline to 'vet' citations, in a brief he signs, for substantive validity—in other words, to read the cited authorities and ensure that they are on point." In the appeal that the Ninth Circuit had before it, there was only one signatory on the brief in question.
If the quoted statement is understood to mean that every signatory on any brief with multiple signatories must personally check every citation in the brief for accuracy, I demur….
Preliminarily, the term "signatory" may be misleading. Appellate briefs commonly list the names of multiple attorneys for the party on whose behalf the briefs are submitted. Ordinarily, only one of those attorneys actually signs the brief. For present purposes, though, all the named attorneys are deemed to be "signatories" who stand behind and who (usually, but not always) contributed to the brief. (It is not unreasonable for a brief to list the attorneys who represent the party in the appeal even if they did not personally contribute to the brief or were not its principal drafter(s).) This does not mean, however, that all these "signatories" necessarily have exactly the same responsibilities for ensuring that the brief comports with ethical and other requirements.
Fulfilling the duty to guard against AI-hallucinated (or otherwise invalid) citations can be a group effort that does not require every signatory to personally cite check every brief. Such a requirement would be impractical, unduly burdensome, and unnecessarily duplicative given the availability of reasonable alternative procedures to guard against erroneous citations. {See Lake v. Gates, 130 F.4th 1054, 1062 (9th Cir. 2025) (Bumatay, J., concurring in the judgment only) (Disagreeing with the majority's conclusion that federal Rule 11 allowed the trial court to sanction an attorney who participated on a brief as "of counsel" and only contributed a discrete portion to the offending brief, because "[a]s a textual matter…, Rule 11 permits different levels of accountability for different attorneys in a case…. To encourage the participation of specialized attorneys and to improve the quality of advocacy in our courts, we should have adopted a rule that recognizes the circumscribed role that some attorneys with subject-matter expertise may play in litigation.").}.
What began as a routine appeal has become a cautionary tale about the misuse of artificial intelligence (AI) and its consequences for attorneys, their clients, and the courts…. While reviewing appellee's [i.e., the Bank's] brief, the court discovered that it contained multiple citations to cases that the court was unable to locate or confirm as legitimate. On June 22, we issued an order requiring appellee to show cause "why the court should not strike its brief for citing nonexistent cases that are possibly the product of artificial intelligence (AI) hallucinations."
The next day, one of appellee's attorneys at the firm, Loishirl W. Hall, filed a response in her own capacity. Ms. Hall confirmed that four of the brief's cited authorities did not exist. She acknowledged that these citations were "not legitimate legal authority" and "should not have appeared in a brief filed with this Court." {Ms. Hall has informed the court that she no longer works at the firm and thus no longer represents appellee, although appellee has not moved for her withdrawal from the case.}
Ms. Hall explained that she had "used Google's generative artificial intelligence search tool to assist in locating case authority" and did not verify the existence or accuracy of those citations before filing the brief. She recognized that she had a duty to verify the accuracy of every authority submitted to this court and apologized for her failure to do so. As part of this mea culpa, Ms. Hall assured the court that she had taken the remedial measure of verifying that the remaining citations in the brief were legitimate authority and pledged that, going forward (presumably in her representation of other clients), she would not rely on any AI tool "for legal research without confirming each authority" or file anything that includes citations she has not independently verified. Ms. Hall represented that she "deeply regrets this error and the burden it has placed on the [c]ourt and all parties."
The firm subsequently filed a response for appellee. The firm stated that it was "unaware" of Ms. Hall's actions when the brief was filed. Although two other attorneys—Jianna Jaques Santos and Michael T. Cantrell—were listed on the brief with Ms. Hall, no information was provided about their review of appellee's brief before filing. Instead, the firm represented that it "only became fully aware of the situation" (emphasis added) once the court issued its show-cause order and Ms. Hall responded. The implication—that the firm did nothing after the court issued its order to become "fully aware" on its own that it had included fake case citations in its brief—is surprising, to say the least. The firm then shifted much of the blame to Ms. Hall, who had stated in her filing that she had never filed an appellate brief before this one.
