Artificial Intelligence (AI) is percolating through modern society. Just as technology made the leap from analog to digital, and communications catapulted forward from rotary dial telephones to smartphones, FaceTime, and WhatsApp, AI has gone from needing hundreds of square feet of computers for the task of playing chess to identifying faces with a thumbnail of silicon. Most important, one cannot overemphasize the speed at which we are hurtling towards a world in which AI will be ubiquitous, seeping into every corner of what we do. As AI becomes part of our everyday life, a key aspect will be the way in which society—and by extension, the legal system—manages both the integration of these systems and society’s expectations. In this context, this essay suggests that the concepts of trust and distrust will be critical for navigating the road ahead, particularly if we want to avoid societal unrest and upheaval. We will have to learn to trust the capacity of AI systems sufficiently so that we can soar to new heights without succumbing to the irrational exuberance that can send us crashing to the ground when our hopes are dashed by its inability to live up to our blind expectations. And we must learn to tolerate the ambiguity that lies between these two extremes. To accomplish these goals, this essay suggests three general principles that should form the basis of the legal regimes—both regulatory and property—that will be necessary for AI.
After Richard Posner gave the Green Bag’s readers a double dose of “What Is Obviously Wrong With the Federal Judiciary,” we invited them to comment on his comments on the courts. So did he: “What I would most like to see would be criticism of the criticisms that I have made of the federal judiciary, and of the American legal culture more broadly, in this two-part article and at much greater length in Divergent Paths (and earlier books and articles). The Bluebook must have its defenders – let them defend their precious tome from me. And so must the awful legal jargon found in so many judicial opinions, and their verbosity; the superfluous headings and subheadings; the silly flourishes; the paeans to the adversary system; the pattern jury instructions; the standards of review; the dread of the italicized period; the spittoons behind the Supreme Court’s bench. The list goes on and on... But no; it seems I am to remain a voice crying in the wilderness. Pretty depressing. This micro-symposium should inspire in Posner both a new cheeriness and more of the same old depression.
Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by intelligent originalists, one of us happily included, has rendered the theory incoherent and capable of supporting almost any result. We appreciate the attention, but we fear we've been misunderstood. Our view is that originalism permits arguments from precedent, changed circumstances, or whatever you like, but only to the extent that they lawfully derive from the law of the founding. This kind of originalism, surprisingly common in American legal practice, is catholic in theory but exacting in application. It might look tame, but it has bite.
Some suggest the 2014 Term of the Supreme Court was the most liberal since the Warren Court. The liberal justices were in the majority in many of the major decisions, including in declaring unconstitutional state laws prohibiting same-sex marriage, upholding tax credits under the Affordable Care Act, preserving disparate impact claims under the Fair Housing Act, permitting states to use independent districting commissions, and several others. In this essay, I review the Court’s decisions concerning marriage equality, the Affordable Care Act, criminal procedure, the First Amendment, and separation of powers. Stunningly, the liberal justices were in the majority in all but one of the cases I discuss. Does this mean that the Roberts Court has moved to the left? Not at all. A year ago, commentary on the Court focused on the unanimity of the term; 66% of the cases were decided unanimously. This year, only 34% of the cases decided after briefing and oral argument were unanimous. Next year, the Court will be deciding cases about affirmative action, voting rights, First Amendment rights of non-union members, and likely abortion. These are all areas where Justice Kennedy is much more likely to side with the conservative justices. If this year for liberals is the “Return of the Jedi,” next year for conservatives well could be “The Empire Strikes Back.”
Supreme Court justices both use and produce legal scholarship. This article identifies the ten most scholarly justices, based on both productivity and impact. The results suggest that scholarly productivity and scholarly impact are only partially correlated. They also suggest that scholarly productivity peaked in the mid-20th Century, but scholarly impact is broadly distributed.
Chief Justice Roberts has drawn attention to the influence of Immanuel Kant on evidentiary approaches in 18 th Century Bulgaria. 1 No scholarship has analyzed Kant’s influence in that context. 2 This Article fills the gap in the literature by exploring Kant’s influence on evidentiary approaches in 18 th Century Bulgaria. It concludes that Kant’s influence, in all likelihood, was none. Immanuel Kant was born in 1724 and died in 1804. 3 He lived most of his life in Konigsberg, Prussia, a city on the Baltic Sea on the northern tip of Europe. 4 Kant’s influence did not extend to Bulgaria, a thousand miles to the south, until long after Kant’s death. Kant first became influential in Bulgarian philosophy circles in the second half of the 19 th Century. 5 The earliest reference to Kant’s work in a Bulgarian journal appeared
This short essay ponders why legal scholars attach formulations such as Do Not Cite or Circulate to draft works. It argues against the practice in most circumstances, particularly for work posted on the internet.
This essay on the Supreme Court’s October 2013 Term notes that the conservative position prevailed in almost every case. In many ways, the Supreme Court’s October 2013 Term fits a familiar pattern. Justice Kennedy was the justice most often in the majority (94% of the cases decided) and in the majority in every 5-4 ruling of the term. In other ways the Term was different. Sixty-five percent of the cases were decided unanimously. By comparison, in October Term 2012, 49% of the decisions were unanimous and in October Term 2011, 44% were unanimous. The Court achieved unanimity in a number of controversial matters by not deciding the significant issues before it. Sometimes, the unanimous result is misleading because the Court was deeply divided as to the reasoning. Many of the most important cases – in terms of their impact on the law and on society – were divided decisions. The October 2013 Term was also significant for the narrow holdings that made it easier to gain unanimity, but rulings that open the door to future litigation.
In a thoughtful and provocative essay, Richard Fallon criticizes law professors for lightly signing onto 'scholars’ briefs,' that is, amicus briefs filed on behalf of a group of law professors claiming expertise in the subject area. Fallon argues that law professors are constrained by the moral and ethical obligations of their profession from joining scholars’ briefs without first satisfying standards similar to those governing the production of scholarship, and thus he believes that law professors should abstain from adding their names to such briefs more often than they do now. This response begins by describing the benefits of scholars’ briefs to both the bench and the legal academy, and then explains why scholars’ briefs may permissibly make arguments in the form of advocacy, rather than scholarship. Although I agree with Fallon that authors and signatories of scholars’ briefs must satisfy different standards than those that apply to practicing lawyers writing amicus briefs - such as being experts in the subject area and sincerely believing in the result the brief advocates - I do not believe that such briefs must adhere to the norms that apply to legal scholarship. I argue that the realities of litigation, in which a judge’s decision is inevitably influenced by both precedent and politics, coupled with the adversarial context in which such briefs are filed, justifies their departure from the pure standards of scholarship.
October Term 2012 was an extraordinary year in the Court, with an exceptionally large number of cases with likely lasting significance. This essay discusses some of the more important decisions of the term in areas such as affirmative action, criminal procedure, voting rights, marriage equality, and business regulation. The essay considers their implications for the law and for people’s lives.
Too much of a good thing can be bad, and democracy is no exception. In the United States, the antidote to what the drafters of the Constitution called “the excess of democracy” is judicial review. Lately, however, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently deferential to the elected representatives of the people. I argue in this essay that criticizing the Court for its activism is exactly backwards: We need more judicial activism, not less. Courts engaging in judicial review are bound to err on one side or the other from time to time. It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few. An examination of both constitutional theory and our own judicial history shows that too little activism produces worse consequences than does too much. If we cannot assure that the judges tread the perfect middle ground (and we cannot), it is better to have an overly aggressive judiciary than an overly restrained one.
October Term 2011 had an unusually large number of high profile cases that not only affect what lawyers and judges do, but have a dramatic impact on people’s lives. Key rulings included decisions about the constitutionality of the Affordable Care Act, Arizona’s immigration law, criminal procedure, the First Amendment, and civil rights litigation. It was a year in which it truly became the John Roberts Court.
N DECEMBER 18, 2010, President Barack Obama signed Public Law 111-314, an act felicitously captioned, “To enact certain laws relating to national and commercial space programs as title 51, United States Code, ‘National and Commercial Space Programs.’” For those whose lives orbit around the topic of space travel, this sounds like an important new law – though in fact it probably is not, as the statute purports merely to “codify certain existing laws.” But for the world of legal research, this is the dawning of a new day: The United States Code (USC) is changing. Few things in American law have been as constant as the 50 Titles of the USC. The USC was first enacted in 1926, when Calvin Coolidge sat in the White House and most Americans were living on farms without electricity. While the individual sections within each Title constantly change to reflect the cascade of annual legislation emanating from Congress, the USC has divided all in-force, generally applicable American federal legislation into the same 50 subject-based Titles for 85 years. Some, like Title 4 – devoted to
Under international law, official-capacity suits brought against a foreign state’s officers are treated as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses. This immunity regime differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. This essay attempts to explain why the immunity rules differ between the two regimes. We begin by showing that the differential treatment of foreign and domestic officer suits has deep roots in British and American common law. We then show that Congress has not acted to alter this common law backdrop, and we explain the significance of this fact. Finally, we discuss functional reasons for the long-time differential treatment of suits against domestic and foreign officials.
