The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Anonymous Would-Be Intervenor Seeks TRO, Relying Heavily on AI Output, in Harvard's Challenge to Funds Freeze
No, says the judge.
"The answer to the question of whether Mr. Trump can act as our President is so obvious, even a machine can see it," John Doe argued in his filing yesterday, citing ChatGPT output. He went on to offer "a full-throated concurrence" "authored" by Grok. (To be fair, he acknowledged that "[t]he tech isn't perfect," and supplemented the argument with a citation to Michael Luttig & Laurence Tribe's article in The Atlantic sharply condemning the Supreme Court's decision in Trump v. Anderson—yet of course the district court is bound by Trump v. Anderson, whether or not it agrees with the decision.)
Judge Allison Burroughs, however, declined yesterday to let Doe intervene:
A party may intervene as a matter of right under Rule 24(a) if it meets the following four requirements:
First, the application must be timely. Second, the applicant must claim an interest relating to the property or transaction which is the subject of the action. Third, the applicant must be so situated that the disposition of the action may as a practical matter impair or impede [its] ability to protect that interest. Fourth, the applicant must show that [its] interest will not be adequately represented by existing parties….
"[A] party to claim standing [to intervene] must have an interest distinct from that of every other citizen or taxpayer." …
John Doe argues, among other things, that intervention is warranted to protect his First Amendment right to "receive information and ideas unfettered by government censorship or retaliation." In his argument for intervention, however, John Doe admits that his interests are "overlapping" with Plaintiff's but are also broader in that his concern includes the "public right to unimpeded access to the marketplace of ideas." Based on the record before it, the Court is not satisfied that this meets the fourth requirement. Moreover, it is not also evident to the Court that his interest is "distinct from that of every other citizen or taxpayer." Consequently, John Doe has failed to satisfy at least two requirements for intervention by right.
Alternatively, under Rule 24(b), "permissive intervention," the Court "may," on a timely motion, "permit anyone to intervene who … has a claim … that shares with the main action a common question of law or fact." "Permissive intervention is 'wholly discretionary,' and a court should consider whether intervention will prejudice the existing parties or delay the action." "[A] district court's discretion to grant or deny motions for permissive intervention is very broad." The Court may consider various factors to determine whether permissive intervention is warranted…. "[A] district court mulling permissive intervention is free to consider whether 'the applicants may be helpful in fully developing the case[,]'" and "that 'more parties would complicate' matters unnecessarily" …. Here, the Court does not believe that allowing John Doe to intervene will be helpful, constructive, or protective of an otherwise unrepresented interest.
Based on that denial of intervention, today Judge Burroughs denied John Doe's motion to TRO.
