Textualism
A Substacker, Adam Unikowsky, of Adam’s Legal Newsletter, is out recently with a long piece about AI and judicial decision-making. You can read it here. He analyzes a recent Eleventh Circuit U.S. Court of Appeals case, Snell v. United Specialty Insurance Company, wherein Judge Kevin Newsom, in writing a concurring opinion, admits to using an AI large language model to help him decide the case. The case turned on the definition of “landscaping.” Judge Newsom wrote that he “spent hours and hours laboring over the question whether Snell’s trampoline-installation project qualified as landscaping as that term is ordinarily understood.” Judge Newsom, following a textualist analysis, queried some LLMs to assist him in determining the ordinary meaning of “landscaping.”
In his piece, Unikowsky argues that LLMs are good for much more in the legal field than determining common usage of words. As an experiment, Unikowsky fed an AI called Claude the briefs from the Snell case and asked it to draft an opinion. Claude produced a well-reasoned opinion within seconds. Unikowsky argues that LLMs are particularly suited to appellate judging. Appellate judging takes text and applies logic, a task squarely within the wheelhouse of LLMs. Unikowsky stops short of arguing that AI should replace judges, but AI is certainly going to be disruptive of the legal field. Will judges go the way of Blockbuster video? We’ll see.
BTW, according to the Eleventh Circuit Court of Appeals, landscaping does not include in-ground trampolines.
Crime
The term murder clearance rate refers to the percent of murder investigations that conclude with an arrest. The clearance rate for murders was ninety-two percent in 1965. Today, the murder clearance rate is fifty-two percent. It is not totally clear what accounts for this. Certainly, growing distrust of police is a major factor. The drop in clearance rates accelerated, for instance, after the George Floyd incident in the summer of 2020. Another explanation, however, was put forth recently in a study published by Philip Cook and Ashley Mancik in the Annual Review of Criminology. They argue that standards for arrest have increased leading to fewer arrests. That is, over time legal system norms have required stronger and stronger cases before arrests can be made. They support this assertion with evidence that the likelihood of conviction after arrest has risen over the same time period. It seems to me that these two factors reinforce one another. As trust in the system decreases, prosecutors and judges are likely to require more and better evidence to bring a case.
More crime
In Washington, D.C., it is a stated policy goal of the Emergency Services Department that 90% of 911 calls be answered within fifteen seconds. Currently, due to the shortage of law enforcement staffing, driven largely by the way law enforcement is treated, only 65% or so of calls are answered within fifteen seconds. Around 250 callers per day are hanging up because they do not receive an answer. Not good.
Separation of powers
On Wednesday of this week, the U.S. House of Representatives found the U.S. Attorney General, Merrick Garland, in contempt of Congress. This stems from Garland’s refusal to respond to a subpoena sent to him by the House Judiciary Committee. The subpoena was a request for audio tapes uncovered in a Special Counsel investigation of President Joe Biden, which was commenced after President Biden was found to have had classified documents stored in his garage. They were next to the corvette, as you may recall. The audio tapes were made by President Biden’s biographer. The biographer turned them over to the Special Counsel during the investigation. The Special Counsel relied on the audio tapes in concluding that President Biden committed a crime by possessing the classified documents. According to the Special Counsel, Biden admitted on tape to his biographer that he was not supposed to have the documents. Despite having this admission of guilt, the Special Counsel further concluded that any prosecution of President Biden would likely be unsuccessful because he is too old, senile and sympathetic. The Judiciary Committee wants the tapes, of course, so the world can hear President Biden admitting to a crime. The Attorney General refuses to turn over the audio. Instead, he has turned over transcripts of the audio. He argues that this should be good enough. The Committee does not trust the transcripts. Thus, the contempt finding by the full House.
I have written extensively about the Congressional contempt process here in relation to a previous contempt finding for FBI Director, Christopher Wray. Basically, the separation of powers doctrine makes it very difficult for Congress to enforce its contempt finding against the executive branch. The usual enforcement mechanism for a contempt finding is a referral to the U.S. Department of Justice for prosecution. Since Garland is the head of the DOJ, he probably won’t be pursuing the contempt finding against himself.
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