Judge Newsom and AI

 Hooooo boy.  You gotta read this concurrencethis concurrence by Judge Newsom about the use of AI in legal opinions.  It starts this way:

I concur in the Court’s judgment and join its opinion in full.  I write separately (and I’ll confess this is a little unusual1) simply to pull back the curtain on the process by which I thought through one of the issues in this case—and using my own experience here as backdrop, to make a modest proposal regarding courts’ interpretations of the words and phrases used in legal instruments.  Here’s the proposal, which I suspect many will reflexively condemn as heresy, but which I promise to unpack if given the chance:  Those, like me, who believe that “ordinary meaning” is the foundational rule for the evaluation of legal texts should consider—consider—whether and how AI-powered large language models like OpenAI’s ChatGPT, Google’s Gemini, and Anthropic’s Claude might—might—inform the interpretive analysis.  There, having thought the unthinkable, I’ve said the unsayable. Now let me explain myself.

1. Even for me. 

Wowsa. You gotta read the whole opinion.  He goes through the pros and cons of using AI and also shows how he used it in this particular case.  It's a very interesting read.

Meantime, I asked Co-Pilot (Microsoft's AI program) to write a blog post about Judge Newsom's use of AI.  This is what I got back:

Circuit Judge Proposes Using AI-Powered LLMs to Interpret Legal Texts

In a recent concurring opinion during an insurance dispute, U.S. Circuit Judge Kevin Newsom suggested that courts might benefit from using artificial intelligence programs to interpret legal texts. This idea, which he described as “unthinkable,” could revolutionize the way we understand and apply the law1.

The underlying case involved a dispute between a landscaper and his insurance company over whether his installation of an in-ground trampoline fell under the term “landscaping” in his insurance policy. The district court noted that because the term “landscaping” was not defined in the policy, whether or not the landscaper’s activities were covered by the insurance policy hinged on whether the installation of the trampoline fell within the common, everyday meaning of the word “landscaping.”

Judge Newsom took the opportunity to express his thoughts about artificial intelligence’s possible role in future disputes after “hours and hours (and hours) laboring over the question [of the ordinary meaning of ‘landscaping’ in the context].” He recounted that querying ChatGPT (an AI-powered LLM) about the ordinary meaning of “landscaping” resulted in an explanation that “squared with [his] own impression.” ChatGPT’s definition included “the process of altering the visible features of an area of land, typically a yard, garden, or outdoor space, for aesthetic or practical purposes.” It also listed activities such as planting trees and installing paths and water features as part of "landscaping"2.

Judge Newsom evaluated the pros and cons of using LLMs to interpret legal texts. Some of the pros included the fact that LLMs are trained on a vast range of ordinary-language data, from literature to online discussions. However, he also noted that LLMs cannot capture “pure offline” usages—those that do not occur online or are not eventually digitized. Despite this limitation, LLMs can understand context, are accessible, and have advantages over other empirical interpretive methods, like dictionary research2.

In conclusion, Judge Newsom’s proposal opens up exciting possibilities for the legal field. While he never reached a definitive conclusion due to the panel’s “off-ramp” approach, his experimentation with generative AI suggests that LLMs might indeed be useful when interpreting legal texts3. It’s a fascinating development that could shape the future of legal analysis.

Disclaimer: The views expressed in this blog post are based on Judge Newsom’s opinion and do not constitute legal advice. Consult a qualified attorney for specific legal matters.

2: Circuit Judge Proposes Using AI-Powered LLMs to Interpret Legal Texts 1: Federal Judge Proposes AI to Decode Legal Texts: A Revolutionary Approach or Risky Gamble? 3: Eleventh Circuit Judge Experiments With ChatGPT

News & Notes

1. There has been a flood of complaints against Judge Cannon to the 11th Circuit. The problem is that they don't actually complain about anything. So Chief Judge Pryor rightfully dismissed them and said no mas. Here's his order. To the people filing 1000s of complaints, it reminded me of William Shatner's line "Get a Life" on Saturday Night Live.

2. Apparently the viral story (that was also blogged about on this platform) was totally bogus:

It turns out all those stories, however, were based on a falsehood. Harris' license had been reinstated years prior and was only registering as suspended due to a clerical error. As of this writing, there has been no spate of additional articles, corrections, or a reinvigorated news cycle based around this information, because the truth here doesn't lend itself to virality and engagement.

That's a good indication that this never should have been a national story to begin with, which would be true even if Harris had been driving on a suspended license. A man in Michigan driving allegedly when he wasn't supposed to is not newsworthy enough to deserve coverage in the most influential outlets in the U.S. (and beyond). Good for a social media laugh? Sure. Justifying its own news cycle? No.

3. Judge Newsom and Judge Rosenbaum are going at it in this appeal that ends up holding that a grant program for Black women is discriminatory .  The writing from both is great and worth a read.  

Judge Newsom introduces the case in his majority opinion:

In this appeal from the denial of a preliminary injunction, we are asked to decide whether the Fearless Strivers Grant Contest, an entrepreneurship funding competition open only to businesses owned by black women, violates 42 U.S.C. § 1981, which prohibits private parties from discriminating on the basis of race when making or enforcing contracts.  We must also decide, as a threshold matter, whether the plaintiff, the American Alliance for Equal Rights, has standing to challenge the contest.   After careful review, and with the benefit of oral argument, we hold (1) that the Alliance has standing and (2) that preliminary injunctive relief is appropriate because Fearless’s contest is substantially likely to violate § 1981, is substantially unlikely to enjoy First Amendment protection, and inflicts irreparable injury.  We therefore affirm the district court’s determination that the Alliance has standing to sue but otherwise reverse its decision and remand with instructions to enter a preliminary injunction.  

Judge Rosenbaum's dissent starts this way:

No one doubts the sincerity of an Arsenal (soccer) player’s desire to beat Tottenham.  But he can’t be allowed to try to win by flopping on the field, faking an injury near Tottenham’s goal.  For those not in the know, the object of flopping is to manufacture a foul that the player hasn’t actually experienced to manipulate the referee into inappropriately exercising his power to award a penalty kick in the box, where it’s likely to result in a goal.  Referees’ vigilance prevents players who have a sincere desire to defeat their opponents—but who try to do so through manufactured fouls— from commandeering referees to improperly exercise their adjudicatory authority to award unwarranted penalty kicks. 

Article III’s standing requirement—which comes from the Constitution’s limitation on the Judiciary to hear only “[c]ases” and “[c]ontroversies”—prevents the legal version of flopping.  Among other things, standing seeks to ensure that a party has a genuine and personal stake in the matter—a real alleged injury.  That way, the court’s decision is not an impermissible advisory opinion but instead addresses a “real need to exercise the power of judicial review in order to protect the interests of the complaining party.”  Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974).  As the Supreme Court has explained, “The powers of the federal judiciary will be adequate for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with our kind of  representative government.”  Id. at 222 (citation and quotation marks omitted). 

Here, no one doubts the sincerity of American Alliance for Equal Rights’s desire to challenge what it views as “distinctions and preferences made on the basis of race and ethnicity.”  Compl. ¶ 6.  American Alliance seeks to do so by challenging the Fearless Foundation’s Striver’s Grant Contest (the “Contest”) designed to help Black women in the business world, where they are grossly underrepresented as business owners.1  But as American Alliance has portrayed its members’ alleged injuries, it has shown nothing more than flopping on the field.2   Although three of American Alliance’s members pay lip service to the idea they are “ready and able” to participate in Fearless’s Contest, their declarations show, in context, that none has a genuine interest in actually entering the Contest.

For the Defense, Season 6: Todd Blanche for Former President Donald Trump

FOR THE DEFENSE -- SEASON 6, EPISODE 1 TODD BLANCHE FOR FORMER PRESIDENT DONALD TRUMP In perhaps the biggest trial in American history, Todd Blanche defended Former President Donald Trump in New York. In this wide-ranging interview, he discusses how he got the case, how decisions were made, how the war room was stocked, whether he got along with prosecutors, why Melania wasn't there, and so on. No matter how you feel about Trump, it's fascinating to hear the ins and outs of the first trial of a former U.S. President. Todd is a good guy and this really comes across in the interview. Watch on Youtube here or listen on your computer here, or on Apple and Spotify.  CNN included a clip from the podcast last night, which was pretty cool. Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here.   Hosted by David Oscar Markus and produced by rakontur

 

Is Sen. Rick Scott holding up the blue slip for Detra Shaw-Wilder?

 That's what it looks like, according to this DBR article.  Really weird.  The legal community is coming to her defense.  Here's the intro to the article:

Prominent names in the Florida legal community expressed their disappointment Wednesday with Sen. Rick Scott over his decline so far to return a “blue slip” on the nominee, Detra Shaw-Wilder, to serve as a district court judge in the Southern District of Florida.

“Detra Shaw-Wilder is well qualified and has widespread support from the community,” said Aaron Podhurst, a founder and partner of Podhurst Orseck in Miami. “I am surprised and disappointed that perhaps political issues have slowed down her process, but I am hopeful that they will be resolved soon and Detra will move forward to confirmation.”

Beatriz Azcuy, a co-managing partner with Sidley Austin in Miami, recalled over three decades ago when Azcuy was a moot court partner with Shaw-Wilder, who impressed Azcuy with her “dedication, perseverance, strength, humanity and intelligence.”

“Today, she is a sought-after, skilled commercial litigator and community leader with qualities required of the judiciary and in short supply in today’s world: integrity and impartiality,” said Azcuy, of the Am Law 100 firm. “As a lifelong Republican and Floridian, I cannot imagine a more qualified nominee to the U.S. District Court for the Southern District of Florida.”

Scott has reportedly claimed that the White House failed to follow the usual consultation process and ignored his suggestion for alternative nominees.

In response, the Biden Administration said it had included Scott in discussions over the last two years, and the senator interviewed Shaw-Wilder, general counsel at Kozyak Tropin & Throckmorton, in January 2023.

Scott did not respond to a request for comment.

Cheers to Cathy Wade Babyak

 The Heart and Soul of the SDFLA is retiring.  Congrats to Cathy Wade Babyak on an amazing run in the Clerk's Office. 

Zoom Hearing Gone Wrong?

By John R. Byrne

Another reason to have cameras in the courtroom? Videos like this one. Man with suspended license--who is also facing charges for driving with a suspended license--attends a hearing by Zoom....while driving.... 

Maybe not quite to the level as the cat-lawyer video from a while back but close. 

"Calm Down." (UPDATED)

 That was Judge Cannon to the Special Counsel's office in last week's hearing on Nauta's Motion to Dismiss for Prosecutorial Misconduct in the Trump documents case.  CNN has the coverage here:

Nauta claims that he was criminally charged in the case as retaliation for declining to cooperate with the Justice Department’s investigation into the former president’s retention of classified documents at his estate.



This photo from the US Department of Justice allegedly shows Walt Nauta moving boxes inside former President Donald Trump’s Mar-a-Lago estate in Palm Beach, Florida. From US Department of Justice

“I had been recommended for a judgeship, that’s beyond dispute,” Woodward said Wednesday. “There was a folder about defense counsel on the table” during that meeting, he said, claiming Bratt referenced that judgeship recommendation.

“I think the implication was that I was to travel and convince Mr. Nauta to cooperate with the investigation, and if I didn’t that, there would be consequences,” Woodward said.

Prosecutor David Harbach then rose and accused Woodward of engaging in “procedural gamesmanship” by making a “garbage argument” about the meeting.

“Mr. Woodward’s story of what happened at that meeting is a fantasy,” Harbach shouted, banging his hand on the lectern in front of him. “It did not happen.”

The heated proceedings Wednesday come as the Manhattan hush money case against Trump nears its conclusion and a new phase of pretrial activity gets underway in the federal classified documents prosecution in Florida. 

Wow.  Too bad we don't have cameras in the courtroom to see it. Meantime, Special Counsel filed a motion to modify the conditions of release to partially gag the former President based on his claims that the search team was "locked and loaded" and ready to take him out, via The Hill.   Trump has responded asking for sanctions.  Ah, fun times. (UPDATED -- Judge Cannon denied the Special Counsel's motion for lack of meaningful conferral and also denied Trump's motion for sanctions.)

All of this on the eve of closing arguments in New York.  I was asked on MSNBC last week how I would close for Trump.  Here's my one minute summary.

Jewish American Heritage Month (and more)

 Last week the Southern District of Florida held an amazing event celebrating Jewish American Heritage Month.  Judge Beth Bloom moderated a panel that included: Judge Luck, Judge Scola, and Judge Altman.  The event had almost 400 attendees and the support of the community.  It was lovely to see.  Here's a picture of the committee:

Judge Altman is making other news -- this NY Times article covers his ruling this week "block[ing] part of a Florida law that criminalized transporting into the state anyone who lacked lawful immigration status, raising new legal questions for other states pursuing similar measures."

More:

The Florida law was intended to discourage unauthorized immigrants from living and working in the state, and organizations that work with immigrants say many undocumented workers have left the state in recent months.

The injunction puts on hold a key enforcement component of the legislation while the lawsuit against it proceeds. The law, which into effect last July, was championed by Gov. Ron DeSantis as he ran for the Republican nomination for president.

The Farmworker Association of Florida sued the state in July, claiming that the component of the law related to transportation into the state was unconstitutional and that its 12,000 members would “suffer irreparable harm.”

They could, the group said, be separated from their families, unable to attend lifesaving medical appointments and prevented from driving to immigration agencies overseeing their cases because of the risk of jail time.

Judge Altman on Thursday ordered further briefing on the scope of the injunction. That decision was wrongly reported by the Herald as “revers[ing] his own ruling.”  That’s not right.