The ChatBots are Coming!

Andrew M. Perlman, The Implications of ChatGPT for Legal Services and Society, The Practice Magazine, March/April 2023 issue (2022).

Andrew Perlman has made legal technology one of the themes of his successful deanship at Suffolk University Law School. He has also taken national leadership roles on law and technology issues, as the chief reporter of the ABA’s Commission on Ethics 20/20, with the charge of modernizing the Model Rules in light of globalization and digital technology, and as vice chair of the ABA Commission on the Future of Legal Services. He was selected as the inaugural chair of the governing council of the ABA’s Center for Innovation. Dean Perlman is therefore ideally positioned . . . to be replaced by a robot.

Many law professors have been playing around with ChatGPT, a chatbot released in November 2022. The developer, Open AI, an artificial intelligence research company, describes the chatbot on its website: ”We’ve trained a model called ChatGPT which interacts in a conversational way. The dialogue format makes it possible for ChatGPT to answer follow-up questions, admit its mistakes, challenge incorrect premises, and reject inappropriate requests.” One tweet, reproduced in an article on the technology, showed the output in response to the prompt, “Write a biblical verse in the style of the King James Bible explaining how to remove a peanut butter sandwich from a VCR.” I doubt that most humans – even a pretty good humor writer – could have done better. Anyone who follows law professors on Twitter has seen academics having a field day inputting their law school exams into ChatGPT or asking hard questions about technical areas of law to try to stump the system. In most cases, the chatbot has performed astonishingly well, providing not only technically correct answers but also demonstrating facility with style and rhetoric. ore ominously, a technology company CEO and a legal scholar had ChatGPT take the multiple-choice portion of the bar exam, the MBE, using the study questions published by the National Conference of Bar Examiners. The chatbot was correct on 50.3% of the questions, as compared with an average of 68% for human test-takers, and would have earned passing scores on the Torts and Evidence portions of the exam. Continue reading "The ChatBots are Coming!"

Lawyers Playing Tambourine

Scott Cummings’s new book, An Equal Place: Lawyers in the Struggle for Los Angeles, tells five different stories illustrating the role of law and lawyers in securing goods such as economic justice, environmental protection, and the rights of immigrants, in the city of Los Angeles in the years following the 1992 riots. The book is organized around chapters providing comprehensive histories of these campaigns: Reforming sweatshop labor in the garment industry; contesting anti-solicitation ordinances that restricted the ability of mostly Latino day laborers to obtain employment; ensuring living-wage jobs in the wake of gentrification and community redevelopment projects; blocking the development of a Wal-Mart supercenter that would have undermined unionization in the grocery industry; and improving labor and environmental conditions for truck drivers at the Ports of Los Angeles and Long Beach.

In his most recent Netflix special, all-time-great comedian Chris Rock observes: “[W]hen you’re in a band, you have roles that you play in the band. Sometimes, you sing lead. And sometimes, you’re on tambourine. And if you’re on tambourine, play it right. Play it right. Play it with a . . . smile, because no one wants to see a mad tambourine player.” Rock uses this as an extended metaphor for relationships, but at the risk of wrenching it too far out of context, the comparison can also apply to the role of public interest lawyers in social movements. Some lawyers may aspire to be the lead singer, but the interests of justice may be better served by lawyers playing a supporting role, and playing it well. Continue reading "Lawyers Playing Tambourine"

Canceling Lawyers

Leah Litman, Lawyers’ Democratic Dysfunction, 68 Drake L. Rev. 303 (2020).

Suppose you became aware that a person advocated for doing abhorrent things, and if given the opportunity, would provide assistance to others who directly did those things. Suppose, for example, that this person thought that one way to deter refugees from seeking asylum in the United States would be to forcibly separate children from their parents, locking children in cages in squalid camps that would shock Charles Dickens, and making it impossible to reunite families subsequently. If this person loudly advocated for these things at a bar, you might get up and move to a different barstool. If this person were your neighbor, you might avoid making eye contact with them on the street. If this person were a member of your family, you would dread Thanksgiving dinner.

If this person were a high-ranking government lawyer, however, they would likely suffer no adverse consequences in their career and might even be promoted to a higher position. This is the concern animating Leah Litman’s powerful and passionate recent article – a contribution to a symposium on Jack Balkin and Sandy Levinson’s book, Democracy and Dysfunction. Networks of elite lawyers are so conflict-averse that they look the other way when members of their club participate in actions that threaten fundamental democratic and human-rights norms. (Pp. 305, 307.) They have an opportunity to sanction immoral conduct by “withholding certain future government appointments and promotions from the lawyers” (P. 307), but instead they welcome these wrongdoers back into the fold of the respectable legal profession. (P. 317.) There are some things one could do that would result in ostracism and exclusion from polite society, so “[w]hy is enabling racist and cruel family separations not on the prohibited list of actions?” (P. 318.) Continue reading "Canceling Lawyers"

The Pleasures of Method

Henry M. Cowles has written an absolutely brilliant book that traces the history of the idea of “the scientific method” from Darwin to Dewey. Although Cowles’ intended audience is historians of science, the book has important and tantalizing implications for those interested more generally in the twentieth-century modernist turn to method, process, procedure, and technique. This is a turn that American legal historians will recognize in the massive emphasis on procedure and process that marked twentieth-century American legal thought, beginning with the rise of the administrative state in the early twentieth century and reaching its apogee with the Legal Process School in the 1950s and 1960s.

The conventional account of the modernist turn to method runs as follows. Around 1900, thinkers in diverse realms of Euro-American intellectual life—ranging from law to literature, mathematics to music, physics to painting—became newly aware of the rickety scaffolding propping up their disciplines and endeavors. What were once deemed established truths, unassailable rationalities, given moralities, and transcendental aesthetic norms suddenly seemed spurious, the product of nothing but history, the tottering fabrications of fallible men. In the American legal context, this moment is exemplified in the scholarly writings, addresses, and judicial opinions of Oliver Wendell Holmes, Jr. The modernist moment was famously disorienting, simultaneously frightening and challenging, at once fraught with promise and uncertainty. Old moorings had come undone. How was one to make sense of the world? How was one to proceed? Continue reading "The Pleasures of Method"

Authority, Vulnerability, and Strict Liability

In Reconceptualising Strict Liability for the Tort of Another Christine Beuermann—a Lecturer in Law at the University of Newcastle—shines new light on strict liability for the wrongdoing of others. In the United States, we generally classify these as vicarious liabilities and non-delegable duties, and we usually conceptualize them in terms of the liability of principals for the acts of their agents. Perhaps surprisingly, these liabilities are at once ancient, very active at present, and poorly understood. Professor Beuermann’s book supplies a badly needed, original, and illuminating framework for thinking about these forms of liability. The book both offers an answer to longstanding theoretical puzzles, and guidance in deciding cases that presently vex the courts. It repays a reader’s careful study by reorienting the reader’s thinking.

Vicarious liability may well be the oldest form of tort liability extant in contemporary tort law. Legal historians often trace it back to Roman law, which held masters liable for the legal wrongs of their slaves, husbands liable for the wrongs of their wives, and fathers liable for the wrongs of their children. Blackstone distanced himself from Roman law’s instantiations, but he saw in them the roots of a more modern and general liability of masters for the torts of their servants. Over time, that liability transformed into the liability of employers for the torts of their employees committed within the scope of their employment.1 If the broad outlines of the history are clear, both the doctrine and the justification are not. Oliver Wendell Holmes thought that vicarious liability was wrong in principle, if too entrenched to uproot.2 Modern corrective justice theorists also tend to see the doctrine as anomalous because it is not fault-based.3 Other contemporary scholars have been more receptive to justifying the doctrine by reference to policies of accident prevention and loss-spreading, or by reference to “a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.”4 Whatever their virtues, these justifications have not been particularly helpful to courts struggling to decide the wave of sexual assault cases that have recently arisen. Why, exactly, is sexual assault a characteristic risk, say, of being a teacher but not of being a school janitor? Continue reading "Authority, Vulnerability, and Strict Liability"

Disruptive Innovation Inside the Bounds of Law?

Charles Yablon writes mostly in fields adjacent to Professional Responsibility, such as civil procedure and jurisprudence. However, as a junior associate at a big law firm in the mid-1990s, I found his article on discovery abuse to be refreshingly clear-eyed and unsanctimonious about an ethical problem that was pervasive in my own practice. Ever since then, I have considered him as a kind of honorary legal ethics scholar. It was therefore with considerable interest that I noticed his new paper on providing legal assistance to clients in activities he refers to as “not quite legal.”

Permissible legal assistance to businesses in the emerging cannabis industry is becoming a popular CLE topic (I am presenting a seminar this summer entitled “High above Cayuga’s Waters?”). The discussion is usually framed around Model Rule 1.2(d), which states that a lawyer may not “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” Even in a state in which medical or recreational use of cannabis products is permitted under state law, a dispensary or other business is still committing a serious federal felony of possession and distribution of a controlled substance. The on-again, off-again practice by the Justice Department of turning a blind eye to marijuana-related offenses in legal-use states raises an interesting jurisprudential issue. Yablon argues that the formal legal prohibition on the possession or sale or marijuana “should not be treated as the sole dispositive fact” regarding its legality. (P. 345.) Continue reading "Disruptive Innovation Inside the Bounds of Law?"

The Motion of the Ship and the Sea: Oceans as Method in Colonial Legal History

Renisa Mawani’s Across Oceans of Law tells the history of the infamously failed passage of the ship the Komagata Maru and the 376 (mostly Punjabi and mostly adult male) people on it who found themselves denied entry to Canada in 1914. The leader of the expedition, Gurdit Singh, a British subject originally from Punjab, insisted on the right to travel and trade on the “free sea,” “a common place that was beyond national and imperial claims to sovereignty.” (P. 5.) Yet, as Mawani puts it, “Britain’s ascendancy as a maritime empire was achieved through a juridification of the sea, advanced in legislation, treaties, agreements and in legal restrictions imposed on ships, passengers, and cargos.” (P. 5.) These restrictions included the “continuous journey” provision used in this case to deny entry to “Asiatic” immigrants seeking entry into Canada. The idea of the Canadian and imperial government was to force all steamship routes (e.g. from Calcutta to Vancouver) to stop in another port of call (e.g. Hong Kong) and then use the journey’s interruption to deny the ship entry into Canada. The law, while facially race-neutral, was only ever invoked against non-white settlers (primarily from India) and is now widely regarded as a thin veneer on an explicitly racist measure aimed at keeping “white Canada white.”

Audrey Macklin explains that “Britain strenuously discouraged the one colony (Canada) from employing explicitly racist exclusionary measures that would exacerbate agitation against British rule in another part of Empire (India).” Britain “preferred to contain Indian British subjects within India . . . the proliferation of diasporic networks of Indian colonial subjects . . . multiplied potential nodes of resistance” to British rule in India.1 Continue reading "The Motion of the Ship and the Sea: Oceans as Method in Colonial Legal History"

Remembering Ian Kerr

Ian Kerr
Ian Kerr 1965-2019

Ian Kerr, who passed away far too young in 2019, was an incisive scholar and a much treasured colleague. The wit that sparkled in his papers was matched only by his warmth toward his friends, of whom there were many. He and his many co-authors wrote with deep insight and an equally deep humanity about copyright, artificial intelligence, privacy, torts, and much much more.

Ian was also a valued contributor to the Jotwell Technology Law section. His reviews here display the same playful generosity that characterized everything else he did. In tribute to his memory, we are publishing a memorial symposium in his honor. This symposium consists of short reviews of a selection of Ian’s scholarship, written by a range of scholars who are grateful for his many contributions, both on and off the page. Continue reading "Remembering Ian Kerr"

Learning from Others: The U.S. Legal Profession and Comparative Law

Over the past fifty years, the study of the legal profession has become a robust and exciting field, featuring rich doctrinal, empirical and theoretical inquiries as well as interdisciplinary insights. The growing body of scholarship includes globe-spanning comparative studies, ranging from the past and present of somewhat similar common law systems (several recent jots have covered fascinating regulatory trends and de-regulation developments in the UK), to more distinct legal professions.1

Samuel Levine’s two-volume book, Jewish Law and American Law—A Comparative Study, makes an important contribution to comparative law studies of criminal and constitutional law (volume 1), and analyses of law and narrative, legal history and law and public policy (volume 2). Lawyers, law students, and scholars of the legal profession are likely to be particularly interested in Section Five of volume 1, consisting of five chapters comparing the Jewish and U.S. legal systems. In a concise and enlightening fashion, Professor Levine explores numerous legal profession topics, offering contextual insights and raising ideas for future analysis. Continue reading "Learning from Others: The U.S. Legal Profession and Comparative Law"

The Law of Taxation Is the Lynchpin of Civilization

John Snape & Dominic de Cogan, Introduction: On the Significance of Revenue Cases, in Landmark Cases in Revenue Law 1 (John Snape & Dominic de Cogan eds. 2018).

John Snape and Dominic de Cogan, two legal scholars from universities in England, have provided a significant contribution to the emerging scholarly discussion in many different countries about the nature and limits of the law—not just tax law, which is their nominal domain in this chapter and book, but of all law. Without being at all polemical, and although they give a fair hearing to those with whom they disagree, they make an undeniable case for the claim that the study of tax law is ultimately the study of, to be honest, everything.

Their argument is subtle and nuanced in a number of important ways, but in the end they could not be more clear. Tax laws are, in the point of view to which they adhere, “not exclusively legal and not even exclusively about tax.” (P. 25.) Even detailed tax statutes have “no coherence or morality outside [of a] political and public law context.” (P. 25.) Continue reading "The Law of Taxation Is the Lynchpin of Civilization"

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