10/17/1862: Justice David Davis takes oath.
Today in Supreme Court History: October 17, 1862
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
My New Article on the Role of Mercy and Crime Victims in the Criminal Justice Process
I argue that the criminal justice actors need to listen to all crime victims ... merciful and otherwise.
I recently published a law review article in the Texas Law Review's symposium on mercy and the law, concerning the proper role of crime victims in the criminal justice process. Here's the abstract:
What role should mercy play in the criminal justice system? While several of the other symposium's articles here in the Texas Law Review argue for expanding mercy's role, I write to raise a cautionary note. Expanding mercy could potentially conflict with another important feature of contemporary criminal justice: the expanding role of crime victims. Because considerations of mercy focus exclusively on the offender, greater attention to mercy necessarily means less attention to victims. This change in focus would be at odds with a broadly advancing crime victims' movement in this country and, indeed, in many countries around the world. This cautionary point does not assume that all crime victims want a more punitive criminal justice system. To the contrary, many crime victims may argue for mercy. But allowing victims' voices to carry weight only when they advance merciful arguments is inconsistent with the underlying rationale for victim involvement: that victims should have agency to advance their own claims in criminal justice processes.
You can read the whole article here.
More on "Invasion," the Alien Enemies Act, and the Political Question Doctrine
Legal scholar Michael Ramsey points out another way courts could reject Trump's plan to use the act as a tool for peacetime mass deportation.
In a previous post, I argued that Donald Trump's plan to use the Alien Enemies Act of 1798 as a tool for peacetime mass deportation is illegal, but also noted that courts might nonetheless refuse to invalidate the plan, because they might (wrongly) conclude that the issue is a "political question" that judges are not allowed to consider. The Alien Enemies Act gives the president the power to detain and deport migrants when there "is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." In that event, the president can detain or remove "all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized."
In a post at the Originalism Blog, Michael Ramsey - a leading scholar of constitutional foreign affairs law - largely agrees with my analysis. But he suggests the political question issue is more easily resolved than I thought:
I think the analysis can be more simple. The question, in my view, isn't whether there is an invasion (which indeed might be a political question, even under the original concept of political questions), but whether it -- whatever it is -- is "perpetrated … by any foreign nation or government." Since that's clearly not the case, for the reasons Professor Somin says, a court would simply be called on to enforce the statute as written, which is comfortably within the judicial power.
Focusing on the words "foreign nation or government" could indeed be an alternative way to reject the argument that the issue here is a political question. Prof. Ramsey is absolutely right about that. But I worry that, if courts rule that the definition of "invasion" is a political question, they could say the same thing about the issues of whether the perpetrator of supposed invasion qualifies as a "nation or government" and whether that entity was in fact the true perpetrator.
The political question doctrine is, as I have previously argued, an incoherent mess; Michael Ramsey is no fan of it either. But, precisely because of the doctrine's vagueness and incoherence, judges have a lot of discretion on how to apply it. A court wishing to use the doctrine to avoid the issues raised by the use of the Alien Enemies Act as a tool of peacetime deportation might well be able to find a way to do so. Such a ruling would be a grave error, but not one completely barred by current precedent.
Three Thoughts on the Stay Denial in West Virginia v. EPA
Today the Supreme Court denied the application for a stay in West Virginia v. EPA, a challenge to an EPA rule regulating power-plant emissions of carbon dioxide. You can read Amy Howe's summary for SCOTUSBlog here. There was one noted dissent from the denial (Justice Thomas), and one justice not participating (Justice Alito). Justice Kavanaugh wrote a statement respecting the denial of the stay, joined by Justice Gorsuch. The main point of the statement was to say that the challengers were likely to win on the merits, but no stay was needed because there was no irreparable injury, since "compliance work" would not need to start for another eight months. In the meantime, Justice Kavanaugh said, the lower court litigation was proceeding apace.
Three thoughts:
- It is a good development that the Court is reaching the merits less often in emergency docket orders. As Justice Barrett previously noted, litigants use "the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument." (Shadow docket critics, time for Bayesian updating!) Avoiding the merits on a stay application fits with an emerging body of literature on stays, including Rachel Bayefsky, Administrative Stays: Power and Procedure, 97 NOTRE DAME L. REV. 1941 (2022); and Jill Wieber Lens, Stays of Injunctive Relief Pending Appeal: Why the Merits Should Not Matter, 43 FLA. ST. U. L. REV. 1319 (2016).
- Given that welcome trend, it is a little surprising to have a statement that reaches out to unnecessarily express a view of the merits—especially since Justice Kavanaugh's statement could have made the very same point about irreparable injury without expressing a merits prediction.
- The statement's reference to "compliance work" points to a very big question about compliance costs and irreparable injury that will come to the Court sooner rather than later. It may be that compliance costs for the EPA rule are massive and existential for the regulated entities—I have not followed the litigation in the D.C. Circuit and express no view on that. If so, they could count as irreparable injury (a ruinous choice in the style of Ex Parte Young). But the mere fact that compliance work is necessary is not enough to show irreparable injury for a stay or preliminary injunction. That, at least, is the traditional view: routine compliance costs do not count as irreparable injury. But over the last decade, the Fifth and Sixth Circuits have adopted a different position, creating a circuit split. Their position is emptying the irreparable injury requirement of any meaning in challenges to government regulation, and it is exacerbating the trend to collapse the four-factor preliminary injunction test into just the merits. I discuss this in The Purpose of the Preliminary Injunction. Here is an excerpt from that article on compliance costs:
You Can Now Pre-Order "The Digital Fourth Amendment"
My book will be out January 10th, but you can pre-order it now.
I'm pleased to say that you can now pre-order my book, The Digital Fourth Amendment: Privacy and Policing in Our Online World.
I've been a professor for almost twenty-five years, and I've written a bunch of casebooks and something like eighty law review articles. But this is my first book for a general audience. Lawyers and law students will enjoy it, I hope, but I also aimed the book at non-lawyer readers who are interested in law, technology, and privacy. And I was pleased to get the price down to something reasonable, as it lists for $35.
I'll blog some more about the book later, but for now I just wanted to post the link to pre-order it for anyone interested.
Journal of Free Speech Law: "Free Speech on the Internet: The Crisis of Epistemic Authority," by Brian Leiter
A new article from the Daedalus (Journal of the American Academy of Arts and Sciences) Future of Free Speech Symposium.
The article is here; the introductory section:
Every society has mechanisms for inculcating in its citizens beliefs about the world, about what is supposedly true and known. These epistemological mechanisms include, most prominently, the mass media, the educational system, and the courts. Sometimes these social mechanisms inculcate true beliefs, sometimes false ones, and most often a mix. What the vast majority believe to be true about the world (sometimes even when it is not) is crucial for social peace and political stability, whether the society is democratic or not. In developed capitalist countries that are relatively free from political repression, like the United States, these social mechanisms have, until recently, operated in predictable ways. They insured that most people accepted the legitimacy of their socioeconomic system, that they acquiesced to the economic hierarchy in which they found themselves, that they accepted the official results of elections, and that they also acquired a range of true beliefs about the causal structure of the natural world, the regularities discovered by physics, chemistry, the medical sciences, and so on.
Although ruling elites throughout history have always aimed to inculcate moral and political beliefs in their subject populations conducive to their own continued rule, it has also been true, especially in the world after the scientific revolution, that the interests of ruling elites often depended on a correct understanding of the causal order of nature. One cannot extract wealth from nature, let alone take precautions against physical or biological catastrophe, unless one understands how the natural world actually works: what earthquakes do, how disease spreads, where fossil fuels are and how to extract them. This is, no doubt, why both authoritarian regimes (like the one in China) and neoliberal democratic regimes (like the one in the United States) invest so heavily in the physical and biological sciences.
In the half-century before the dominance of the internet in America (roughly from World War II until around 2000), the most prominent epistemological mechanisms in society generally helped ensure that a world of causal truths was the common currency of at least some parts of public policy and discourse in the relatively democratic societies. There were, of course, exceptions: the panic over fluoridation of water in the 1950s is the most obvious example, but it was also anomalous. Even false claims about race and gender (that were widespread in the traditional media until the 1960s and 1970s) were met with more resistance from the pre-internet media, especially from the 1960s onwards. The basic pattern, however, was clear: social mechanisms inculcated many true beliefs about how the natural world works, while performing much more unevenly where powerful social and economic interests were at stake.
The internet has upended this state of affairs: it is the epistemological catastrophe of our time, locking into place mechanisms that ensure that millions of people (perhaps hundreds of millions) will have false beliefs about the causal order of nature—about climate change, the effects of vaccines, the role of natural selection in the evolution of species, the biological facts about race—even when there is no controversy among experts. Indeed, a distinguishing and dangerous achievement of the internet era has been to discredit the idea of "expertise," the idea that if experts believe something to be the case, that is a reason for anyone else to believe it. Experts, in this parallel cyber world, are disguised partisans, conspirators, and pretenders to epistemic privilege, while the actual partisans and conspirators are supposed to be the purveyors of knowledge.
N.Y. Court Opines on Use of AI by Experts
"[C]ounsel has an affirmative duty to disclose the use of artificial intelligence and the evidence sought to be admitted should properly be subject to a Frye hearing prior to its admission ...."
From Thursday's decision in In the Matter of Accounting by Weber, decided by Saratoga County (N.Y.) Surrogate's Court judge Jonathan G. Schopf; the expert was opining on damages in a financial dispute:
Use of Artificial Intelligence
Although the Court has found [proposed expert witness Charles Ranson's] testimony and opinion not credible [see below -EV]…, a portion of his testimony bears further and separate discussion as it relates to an emerging issue that trial courts are beginning to grapple with and for which it does not appear that a bright-line rule exists.
Specifically, the testimony revealed that Mr. Ranson relied on Microsoft Copilot, a large language model generative artificial intelligence chatbot, in cross-checking his calculations. Despite his reliance on artificial intelligence, Mr. Ranson could not recall what input or prompt he used to assist him with the Supplemental Damages Report. He also could not state what sources Copilot relied upon and could not explain any details about how Copilot works or how it arrives at a given output. There was no testimony on whether these Copilot calculations considered any fund fees or tax implications.
The Court has no objective understanding as to how Copilot works, and none was elicited as part of the testimony. To illustrate the concern with this, the Court entered the following prompt into Microsoft Copilot on its Unified Court System (UCS) issued computer: "Can you calculate the value of $250,000 invested in the Vanguard Balanced Index Fund from December 31, 2004 through January 31, 2021?" and it returned a value of $949,070.97—a number different than Mr. Ranson's. Upon running this same query on two (2) additional UCS computers, it returned values of $948,209.63 and a little more than $951,000.00, respectively. While these resulting variations are not large, the fact there are variations at all calls into question the reliability and accuracy of Copilot to generate evidence to be relied upon in a court proceeding.
Interestingly, when asked the following question: "are you accurate", Copilot generated the following answer: "I aim to be accurate within the data I've been trained on and the information I can find for you. That said, my accuracy is only as good as my sources so for critical matters, it's always wise to verify.
Global Free Speech Summit 2024, Today and Tomorrow (Vanderbilt + Virtual)
Should be a very interesting program; registration is free, and you can attend virtually. The event is put on by Vanderbilt's The Future of Free Speech program, which is in turn led by free speech scholar and historian Jacob Mchangama.
Speakers will include novelist Salman Rushdie (attending virtually), Iranian journalist and women's rights activist Masih Alinejad, Taiwan's first digital minister Audrey Tang, Hong Kong democracy activist Nathan Law, Washington Post columnist Rana Ayyub, former ACLU president Nadine Strossen, New York Times columnist David French, The Economist senior editor James Bennett, and PEN America CEO Suzanne Nossel, and many more.
National Firearms Act Seminar
Free and online, Oct. 18, from U. Wyo. Firearms Research Center.
This Friday, October 18, there will be an all-day seminar on the National Firearms Act, the 1934 federal statute that regulates machine guns, short-barreled rifles and shotguns, sound suppressors, and some other items. Continuing legal education credit is available, and the seminar is free and online. Registration, CLE information, and the schedule are available here.
The seminar is hosted by the University of Wyoming College of Law's Firearms Research Center, where I am a Senior Fellow. This is the first-ever legal seminar on the National Firearms Act, in important topic for anyone who practices general federal criminal law. It begins at 8:30 a.m. Mountain Time, and concludes at 3:30 p.m. If you happen to be in Laramie, you can attend in person. Some readers may remember the call for papers that I posted this summer. The seminar is collaboration with the Wyoming Law Review, which will publish revised versions of papers presented at the seminar.
The program is:
Session 1. Benjamin Hiller, Deputy Associate Chief Counsel for the Firearms & Explosives Law Division at the ATF. Implementation of the National Firearms Act, and insights into legal issues surrounding firearms regulation.
Session 2. David Kopel. The history of machine guns.
Session 3. Stephen P. Halbrook, Yang Liu, Matthew Larosiere, and Charles K. Eldred. The National Firearms Act's impact on regulated arms. Also, tax issues.
Lunch. Kelly Todd of the Wyoming Game and Fish Department. The National Firearms Act's impact on wildlife management and enforcement
Session 4. Tom W. Bell, Chris Land, Clayton Cramer, and Ted Noel. Second Amendment issues. How historical firearms are categorized in the NFA.
Session 5. Michael Williams, General Counsel for the American Suppressor Association. Recent policy developments related to the NFA.
SpaceX's First Amendment Claim Against California Coastal Commission
The California Coastal Commission recently decided to block SpaceX's increase in annual launches at Vandenberg Space Force Base from 36 to 50. SpaceX has just sued, claiming the decision was preempted by federal authority, violated state law, and also violated the First Amendment. I can't speak to the preemption arguments and the statutory arguments, but I wanted to pass along some thoughts about the First Amendment question.
SpaceX is arguing that the Commission's 6-4 decision was influenced by the Commissioners' disapproval of Elon Musk's politics and speech:
The Commission also made clear that its objection was rooted in animosity toward SpaceX and the political beliefs of its owner Elon Musk, not concern for the coastal zone. After talking at length about concerns with changes in Department of Defense leadership following the November 2024 election, Commission Chair Hart said explicitly: "The concern is with SpaceX increasing its launches, not with the other companies increasing their launches." She explained, "we're dealing with a company … the head of which has aggressively injected himself into the Presidential race and made it clear what his point of view is."
Other Commissioners similarly made clear their decision was based on political disagreements with Mr. Musk. Commissioner Newsom, for instance, said that "Elon Musk is hopping about the country, spewing and tweeting political falsehoods and
attacking FEMA while claiming his desire to help the hurricane victims with free Starlink access to the internet." Commissioners Aguirre and Escalante voiced similar concerns regarding the political uses of Starlink. As these statements show, the impact of the proposed launch cadence increase on the coastal region was the last topic on the Commissioners' minds at the October 2024 meeting.
At the same time, there have also been other arguments given for the decision, related to the potential environmental effects of the launches.
Here's the general rule: The government generally may not deny a license or approval to a regulated entity because of that entity's speech, or the speech of its owners or managers (unless the speech falls within a First Amendment exception, such as for true threats of illegal conduct). "[T]he standard for evaluating whether a regulated entity has established a claim of retaliation based on the exercise of free speech rights," to quote CarePartners LLC v. Lashway (9th Cir. 2008), is:
Did Yale, Princeton, and Duke Violate SFFA in Last Year's Admissions Cycle?
Following the Supreme Court's decision in SFFA in 2023, barring the use of racial preferences in admissions, admissions patterns at most elite universities followed the pattern one would expect: enrollment of black and Hispanic students declined, and enrollment of Asian-American students increased. Three major exceptions to this pattern are Yale, Princeton, and Duke. At each of these universities, enrollment of black students was basically flat, and enrollment of Asian-American students was actually down. Enrollment of Hispanic students, meanwhile, was flat at Princeton and Duke and actually up at Yale.
In today's New York Times, University of Chicago lawprof Sonja Starr argues that we shouldn't assume that these schools were cheating, and offers 3 alternative explanations:
The first possible reason is that schools do not admit students in a vacuum. They compete for them. Why did fewer Asian American students enroll this year at Yale, Duke and Princeton? Perhaps they went to other elite schools instead … The second plausible explanation for the schools' demographics has to do with the statistics themselves: Duke and Princeton had a large rise in the number of students declining to identify themselves by race. (Yale does not report this figure.) If that rise was concentrated among Asian American students, it could explain the apparent drop-off in their numbers. [DB This would not explain the Hispanic and African American figures.]… The third possible reason the critics' suspicion is unfounded is the most important: It is perfectly lawful for universities to seek to preserve racial diversity. Even if it turns out that colleges are deliberately seeking to keep Black and Hispanic students well represented, this would not in itself raise a legal problem.
Color me skeptical. First, I find it extremely suspicious that all three schools had almost exactly the same percentage of African-American matriculants this year as in the recent past, and two of the three had almost the exact same percentage of Hispanic students. Given what necessarily were substantial changes in their admissions processes, this is an awfully "interesting" coincidence. Relatedly, I find it unlikely that Starr's first explanation would have nearly the dramatic effect it would need to have to explain this year's matriculation results.
Second, each of these schools signed an amicus brief to the Supreme Court stating that there was no way no they could possibly achieve similar racial diversity as in the past without using racial preferences. If Starr is right that the universities in question found other ways to achieve diversity without using race as a factor in admissions, it suggests one of two possibilities, neither of which is flattering. First, the schools knew that they could achieve diversity without using racial preferences but declined to do so, even though pre-SFFA Supreme Court precedent required them to use race only as a last resort, and even though this meant that they were lying in their amicus brief. Second, the schools were able to achieve racial diversity without using racial preferences but had never bothered to try to do so before, again despite precedent requiring them to.
Most likely though, all three schools illegally considered race in filling a soft quota for underrepresented minority students while also avoiding accepting more Asian-American students.
Should the Boeing Plea Deal on the 737 MAX Crashes Be Approved?
I have argued to Judge Reed O'Connor that he should reject the proposed "binding" plea deal because it obscures the relevant facts and fails to hold Boeing accountable for killing 346 people. A decision is expected soon.
For the last several years, I have represented families who lost loved ones in the crashes of two Boeing 737 MAX aircraft (see earlier posts here, here, and here). The families want Boeing held fully accountable for the harms caused by its federal conspiracy crime of defrauding the FAA about the safety of the 737 MAX. Last Friday, I argued before Judge Reed O'Connor (N.D. Texas) that he should reject the proposed plea agreement negotiated between Boeing and the Justice Department. Among other arguments, I explained that the proposed plea deal would improperly transform Boeing's conspiracy into a "victimless" crime rather than recognize the 346 deaths Boeing directly and proximately caused through its lies. This post summarizes a few of my arguments against the deal, along with linking to the main filings from both sides in the case--and the oral argument transcript--so that readers can see the competing positions. This post also includes an order from Judge O'Connor, issued yesterday, that directs DOJ and Boeing to provided additional briefing on a DEI provision in the proposed plea.
Some quick background to set the stage: In 2018 and 2019, two brand-new Boeing 737 MAX aircraft crashed in Indonesia and then Ethiopia, killing 346 passengers and crew. The Justice Department opened a criminal investigation into Boeing and soon developed compelling evidence that Boeing had defrauded by the FAA by concealing the capabilities of one of the plane's new software programs.
Faced with the Government's compelling evidence, in late 2020 and early 2021, Boeing secretly negotiated a lenient deferred prosecution agreement (DPA) with the Justice Department. The parties then filed the DPA with Judge O'Connor in the Northern District of Texas. Receiving no immediate objection to the DPA, Judge O'Connor allowed the agreement to move forward.
In December 2021, I filed an objection to the deal. I argued that the Justice Department had violated the rights of the families of the victims killed in the two crashes. In secretly negotiating the deal, DOJ violated the families right under the Crime Victims' Rights Act to confer with the prosecutors during the DPA negotiations. DOJ (and Boeing) responded that the families did not represent "crime victims," because the connection between Boeing's conspiracy crime and the crashes was too attenuated. But after two days of evidentiary hearings, in October 2022, Judge O'Connor disagreed—finding that the families represented "crime victims" and that the Justice Department had violated the families' CVRA rights to confer about the deal.
But ultimately, after a further hearing, in January 2023, Judge O'Connor ruled that while he had "immense sympathy for the victims and the loves ones of those who died in the tragic plane crashes resulting from Boeing's criminal conspiracy," he was unable to award them any remedy. I sought review in the Fifth Circuit. Last December, the Circuit concluded that, if a properly presented issue came before Judge O'Connor, he did have the power to take victims' rights into account in deciding how best to proceed.
Since then, in the wake of the Alaskan Air 737 doorplug blowout, in April the Justice Department concluded that Boeing breached its safety and compliance obligations under the DPA. Following that breach determination—which ended the deferral of prosecution provided by the DPA—in July Boeing and DOJ announced that they had reached a plea agreement to resolve the pending conspiracy charge.
When the parties unveiled the terms of their plea deal, the families were outraged. Previously I blogged about the families' objections to the plea and their motion to Judge O'Connor asking him to exercise his discretion to reject it. Both the Justice Department and Boeing have filed responses. Read More
Teacher's Defamation Lawsuit Over Allegations She Mistreated Muslim Student Can Go Forward …
against the online critic who first posted the allegations, but not against CAIR (the Council on American-Islamic Relations), which echoed them.
From Herman v. Muhammad, decided yesterday by the N.J. appellate court (Chief Judge Thomas Sumner and Judges Ronald Susswein and Stanley Bergman):
The following facts are alleged in the amended complaint. Herman is a second-grade teacher at an elementary school (school) in the South Orange-Maplewood school district. On October 6, 2021, Herman believed that one of her students, who normally wears a form-fitting hijab as part of her Muslim faith, was wearing a "hood" covering her eyes. Attempting to reengage the student in schoolwork, Herman asked the student to remove the hood from her eyesight. Unbeknownst that the student was wearing a loose-fitting hijab, Herman "lightly brush[ed] back" the student's hijab and "immediately and gently brushed [it] back to cover … the [s]tudent's hair." Herman claims that "out of respect for the religious practices of Islam and for the [s]tudent's observation of same, [she] apologized to the [s]tudent." Herman maintains the hijab "never left the [s]tudent's head," and class resumed without disruption. After the student told her mother about the incident, the mother spoke to the school's principal and assistant principal.
The next day at 4:00 p.m., Muhammad, a practicing Muslim who wore a hijab while winning a Sabre fencing medal for the United States in the Olympics, posted the following sentiments on Instagram:
I wrote this book [The Proudest Blue: A Story of Hijab and Family] with the intention that moments like this would never happen again. When will it stop? Yesterday, Tamar Herman, a teacher at Seth Boyden Elementary School in Maplewood, NJ forcibly removed the hijab of a second[-]grade student. The young student resisted, by trying to hold onto her hijab, but the teacher pulled the hijab off, exposing her hair to the class. Herman told the student that her hair was beautiful and she did not have to wear [a] hijab to school anymore. Imagine being a child and stripped of your clothing in front of your classmates. Imagine the humiliation and trauma this experience has caused her.
This is abuse. Schools should be a haven for all of our kids to feel safe, welcome and protected—no matter their faith. We cannot move toward a post-racial America until we weed out the racism and bigotry that still exist in all layers of our society. By protecting Muslim girls who wear hijab, we are protecting the rights of all of us to have a choice in the way we dress.
Writing books and posting on social is not enough. We must stand together and vehemently denounce discrimination in all of its forms. CALL Seth Boyden Elementary (973) 378-5209 and EMAIL the principal sglander@somsd.k12.Nj.us and the superintendent Rtaylor@somsd.k12.Nj.us
About thirty minutes later, Muhammad edited and reshared the post on Instagram and Facebook. The edited post omitted the first two sentences ("I wrote this book with the intention that moments like this would never happen again. When will it stop?") and included a photo of the school. Muhammad's posts garnered considerable reactions in mass media and social media, including by the Counsel on American Islamic Relations (CAIR) Foundation, CAIR-NJ, and CAIR-NJ's executive director Selaedin Maksut (collectively CAIR defendants), calling for Herman's immediate termination….
As a result of Muhammad's "defamatory social media posts … the Essex County Prosecutor's Office opened a [three-month] criminal investigation" of the incident, and though "vindicated by the outcome," Herman alleges she has endured "acute emotional distress," destruction of her "hard-earned reputation," and physical threats. Herman also alleged she was even "condemn[ed]" by the "rabbi from her childhood congregation." …
Herman sued Muhammad and CAIR for defamation, and the court allowed the case to go forward against Muhammad but not CAIR. The court concluded that Herman had adequately alleged that Muhammad's statements about her were false (though of course the question whether they were in fact false can't be decided until later):
LLM AIs as Tools for Empirical Textualism?: Manipulation, Inconsistency, and Related Problems
LLM AIs are too susceptible to manipulation—and too prone to inconsistency—to be viewed as reliable means of producing empirical evidence of ordinary meaning.
A corpus linguistic study can produce datapoints on empirical questions of ordinary meaning—like the question in the Snell case on whether the installation of an in-ground trampoline falls within the ordinary meaning of "landscaping." But LLM AIs do not and cannot do so, for reasons developed in detail in our draft article.
We highlighted some of the reasons for our conclusions in yesterday's post. But the problem is even bigger than we let on there.
It's not just that AIs are black boxes. Or even that their bottom-line responses obfuscate any empirical detail on how a term like "landscaping" is ordinarily used. We must also come to terms with the fact that AI responses are easily affected by even slight variations in search terminology and vary a lot even when the identical query is presented multiple times.
Studies have shown that "[t]he tone of a prompt"—even subtleties in "politeness"—may affect the sources an LLM "pull[s] from" in "formatting its reply." "Polite prompts may direct the system to retrieve information from more courteous … corners of the Internet," while a "snarky prompt" could "direct the system" to a seedier source like Reddit. And "supportive prompts"—requests to "[t]ake a deep breath and work on this problem step-by-step"—could trigger the AI to refer to online tutoring sources, "which often encourage students to break a problem into parts." These are just two examples of the potentially myriad ways in which chatbot responses could be influenced by a human user. Our best guess is that we have barely begun to scratch the surface in our understanding of these sources of variability. Regardless of the causes or effects, the unexplained variability in chatbot responses renders them opaque, non-replicable, and fundamentally unempirical.
Today in Supreme Court History: October 16, 1898
10/16/1898: Justice William O. Douglas's birthday.
No Civil Court Claim Over Publicizing Religious Court's Statement That Litigant Refuses to Appear in the Religious Court
Plaintiff had argued that defendants' publicizing the religious court's statement "serves as a form of social pressure, calling on the community to shun or ostracize the individual until they comply with the court's demands."
From today's decision by Judge Rachel Kovner (E.D.N.Y.) in Esses v. Rosen:
Plaintiff Regina Esses has moved for a preliminary injunction under Federal Rule of Civil Procedure 65 against defendants Tanya Rosen and Tanya Rosen Inc. enjoining defendants from disseminating a declaration from a rabbinical court and an accompanying instructional document. Plaintiff's motion for a preliminary injunction is denied….
The following facts are taken from plaintiff's filings in support of her motion for a preliminary injunction and are assumed true for purposes of this motion.
Both plaintiff and defendant Tanya Rosen are members of the Orthodox Jewish community. As relevant to plaintiff's request for a preliminary injunction, plaintiff asserts that, before she filed this lawsuit, Rosen secured the issuance of a summons against plaintiff by a Jewish rabbinical court, or beth din, called Badatz Mishpitei Yisroel ("BMY"), regarding plaintiff's former employment contract with defendant Tanya Rosen Inc. According to plaintiff, "[u]nder Jewish law, when an individual is summoned to beth din, the recipient has the right to propose an alternative beth din to avoid potential bias or undue influence from the summoner's chosen venue." Plaintiff alleges that "BMY, at Rosen's request, continued to issue summonses demanding [plaintiff's] appearance," even though plaintiff proposed an alternative rabbinical court in New Jersey.
Plaintiff asserts that Rosen later "sought a seiruv from BMY against" plaintiff. According to plaintiff, a "seiruv is a public declaration issued by beth din that a person has refused to comply with rabbinic court orders to appear." The seiruv lists plaintiff's home address and states:
Whereas, close to a year has passed since we have sent out our first summons to [plaintiff] and until this day a Din torah has not been scheduled, we have no choice but to declare [plaintiff] a Mesareves, in addition to her filing in court against [Rosen] without permission from a Bais Din. She claims to have permission from her Rabbi, which she has not substantiated to the Beis Din. Anyone that may impress upon her the severity of the grave sin of refraining from appearing in Beis Din shall do so and it will be to his merit.
Rosen distributed the seiruv, along with an "instructional document" purporting to describe what a seiruv generally entails, "throughout [plaintiff's] neighborhood," in various "Jewish community Whatsapp group chats," and to Rosen's listserv, which contains thousands of recipients. The instructional document describes a seiruv as "a form of contempt order issued by a rabbinical court." It states that the "public declaration serves as a form of social pressure, calling on the community to shun or ostracize the individual until they comply with the court's demands."
Colorado Elected District Attorney Disbarred for Litigation Misconduct
From People v. Stanley, decided Sept. 10 by the Office of Presiding Disciplinary Judge of the Supreme Court of Colorado but just posted to Westlaw; the opinion is by Presiding Disciplinary Judge Bryon M. Large, joined in part by Member Sherry A. Caloia (a lawyer) and in part by Member Melinda M. Harper (a citizen member):
Following the highly publicized disappearance of a Chaffee County woman [Suzanne Morphew], Stanley, who was the newly elected District Attorney of Colorado's 11th Judicial District, brought first-degree murder charges against the woman's spouse [Barry Morphew]. During the prosecution, Stanley made three improper extrajudicial statements about the case to the media, which threatened to prejudice the defendant and undermine the public's interest in justice. Those statements contributed in part to a judicial ruling changing venue in the case. Through this misconduct, Stanley violated Colo. RPC 3.6(a) (a lawyer who participates in the investigation or litigation of a matter must not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding) and Colo. RPC 3.8(f) (prosecutors must refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused unless the comments serve a legitimate law enforcement purpose, are necessary to inform the public of the nature and extent of the prosecutor's action, or are permitted under Colo. RPC 3.6(b)).
At the same time, Stanley did not adequately supervise the prosecution of the case. She failed to timely direct adequate administrative resources to process discovery, leading to a series of judicially imposed sanctions against the prosecution for discovery violations. She failed to take reasonable measures to establish a leadership structure that ensured accountability within the prosecution team, with the result that the prosecution team overlooked important projects in the case. And she failed to intervene when the prosecution team was given an opportunity to cure its deficient endorsements for expert witnesses, the majority of whom were eventually excluded. Through this conduct, Stanley violated Colo. RPC 5.1(b) (a lawyer with direct supervisory authority over another lawyer must make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct).
After the presiding judge [Ramsey Lama] issued several adverse rulings less than two months before jury selection, Stanley instructed her chief investigator to interview the judge's former spouse to determine whether the judge committed domestic abuse. Even though she had no credible evidence to believe that the judge had ever engaged in such criminal conduct, Stanley ordered the investigation in an effort to uncover information about the judge that would require him to recuse from the case. Shortly after the interview, which revealed that the judge had never abused his former spouse, Stanley dismissed the case without prejudice. Though this conduct, Stanley attempted to violate Colo. RPC 8.4(d) (it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice), thereby contravening Colo. RPC 8.4(a) (it is professional misconduct for a lawyer to attempt to violate the Rules of Professional Conduct).
In a bid to rehabilitate her relationship with the media, Stanley later agreed to sit for a videotaped interview with a local reporter. During that interview, which Stanley reasonably should have known was on the record and would be publicly disseminated, she again made improper extrajudicial statements about two defendants criminally charged in the death of a ten-month-old baby.
She effectively pronounced that one of the defendants was guilty, revealed inadmissible details about the defendant's sexually based juvenile offenses, and impugned the motives and character of the defendants. Two judicial officers, ruling independently, concluded that Stanley's extrajudicial statements amounted to outrageous government conduct so severely prejudicing the defendants that the judiciary was required to dismiss each defendant's criminal case. Through this conduct, Stanley violated Colo. RPC 3.6(a) and Colo. RPC 3.8(f)….
In their opening statement, the People likened Respondent's handling of the Morphew prosecution to that of a ship's captain who never appeared on the bridge. In some ways, this analogy is apt. Respondent's absence at the helm during key phases of the prosecution—even when she was warned that it faced rough waters—led to a series of events that ended with the first-degree murder case running aground.
The analogy captures Respondent's dereliction of her duty as an elected official and the top prosecutor in her district. In that role, her obligation was not to win or to protect her reputation but to see justice done. Instead, her unjustifiable extrajudicial statements in the Jacobs and Crawford cases led to the opposite result, prejudicing each criminal defendant and torpedoing the criminal cases against them. And her baseless decision to launch an in-house investigation of a judge presiding over a case that was close to trial prejudiced the administration of justice and abused her position of trust. She must be disbarred.
This is just the introduction and the conclusion; the full opinion goes into much more detail. Member Caloia dissented in part:
Journal of Free Speech Law: "The Future of Free Speech: Curiosity Culture," by Olivia Eve Gross
A new article from the Daedalus (Journal of the American Academy of Arts and Sciences) Future of Free Speech Symposium.
The article is here; the Introduction:
Before entering college in 2020, I thought cancel culture existed solely in the domain of celebrities, newsmakers, social media, consumer brands, and large corporations. I first became aware of the phenomenon in its original context: a TV show was canceled in response to a backlash after its star committed an abhorrent act. In another case, a product-endorsement contract was canceled ahead of public outcry over the spokesperson's reported behavior. As these scenarios grew more common, I assumed cancellations only took place in the realm of the famous.
At the start of my first year at the University of Chicago, I learned that cancel culture had infiltrated campus life. Students were being shunned for voicing an unpopular view in class, excoriated on social media over a pun, or shamed for asking a question because they were of the "wrong" identity for the subject matter. My campus wasn't unique—if anything, Chicago does more than almost any other university to advocate and defend principles of free speech.
This revelation was as bewildering as it was upsetting. The fundamental mission of a liberal-arts education is to promote diverse perspectives, thoughtful debate, intellectual growth, and, hopefully, classmate camaraderie in the shared experience of it all. And my university does a lot to support this objective. But students themselves are now stifling the university experience by using a variety of methods to either silence speech or ensure that certain speech receives social punishment. Such trends have detrimental consequences for the campus community at-large, eroding the university's formative environment of speech. In polling conducted by the Foundation for Individual Rights and Expression, more than half of students (56 percent) expressed worry about damaging their reputation because of someone misunderstanding what they have said or done.
