Jan 9, 2013

New Article: Robot, Esq.

I recently submitted a preliminary draft of a new article, titled Robot, Esq to SSRN. This article considers the ethical, jurisprudential, and legal implications of artificial intelligence systems that can offer legal services.

This article brings together a lot of thoughts I have had concerning how my own work with assisted decision making will develop as the legal and regulatory frameworks concerning artificial intelligence progresses.  I submitted this paper to the Robotics and the Law Conference at Stanford Law (a follow-up to the very cool We Robot conference I attended last year at UMiami Law), the International Conference on Artificial Intelligence and Law, and Law and Society.

Here is the introduction:

Advances in artificial intelligence are transforming many aspects of our society, from Google’s autonomous cars to IBM’s Watson defeating the Jeopardy! world champion. The legal profession, as well, is evolving from today’s time-consuming, customized labor-intensive legal market to tomorrow’s on-demand, commoditized law’s information revolution.

In the not-too-distant future, artificial intelligence systems will have the ability to reduce answering a legal question to the simplicity of performing a search. Imagine a program similar to the iPhone’s Siri application. Call it Harlan. A would-be litigator could tell Harlan, a virtual litigation assistant, about the case at hand: the relevant parties, the facts, the merits, and the remedy sought and share any relevant documents. Based on an advanced algorithm that mapped out the relationship between all of the relevant case law, Harlan could generate forecasts of how the case would be resolved with different judges in different courts, and perhaps even recommend an ideal forum (call it fantasy-forum-shopping).

Harlan could explain how best to structure the litigation, what types of motions would be most successful, and how to structure arguments. With advances in artificial intelligence, it is not difficult to conceive of Harlan even drafting the briefs (many sections of briefs today are copied from boilerplate), or at least check the persuasiveness of the arguments against other successful arguments already accepted by courts.

Harlan would also work wonders for non-lawyers. A person could download the app, talk to Harlan in plain English, explain his or her problem, and listen to possible remedies—that may or may not involve paying a lawyer. Harlan would improve access to justice.

As transformational as this technology may be, it raises fundamental questions about how we view our legal system, the representation of clients, and the development of our law. Before we proceed to develop, implement, and rely on this technology, we must first grapple with three important issues inherent in this change. First, what are the ethical implications of this technology to the traditional attorney-client relationship? Second, what are the jurisprudential implications of non-humans making and developing legal arguments? Third, how should we, or not, develop the legal and regulatory regimes to allow systems to engage in the practice of law?

Before considering whether we can develop Harlan, we must pause to consider whether we should develop Harlan? Will it actually improve conditions for attorneys, non-attorneys, and the rule of law? This article provides a research agenda to explore how advances in artificial intelligence will impact the practice of law, and lays out a framework that considers key issues with this important technology.

This is a topic I hope to develop much further.

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Jan 9, 2013

More on McCain, Graham, and Ayotte’s Institutional Interest in Defending the NDA as an Amicus

From their reply brief:

The Senate Amici’s interest and arguments are distinct from those of the Appellants, as is apparent from any comparison of their briefs. The Senate Amici played a leading role in enacting the statutory provision at issue in this case, while the Obama Administration strongly opposed it. Without delving into the merits at this time, the Senate Amici seek to defend the fullest extent of Congress’s power under the Declare War Clause, as exercised in this instance, while the Appellants present narrower arguments that, if accepted, are likely to leave the extent of Congress’s power in doubt, even while winning this particular case. That the Senate Amici and the Appellants agree on some points, and on the ultimate disposition of this case, does not minimize the differences in their approaches and certainly does not render those approaches “identical.” Br. in Opposition (“BIO”) at 15.

My previous coverage is here, here, and here.

H/T LawFareBlog


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Jan 9, 2013

Issa Requests FTC IG Investigation about Leaks Concerning Google Probe

The letter is here. No good deed goes unpunished, I suppose.

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Jan 9, 2013

Bill Maher Offered Donald Trump $5 Million for his Birth Certificate. Trump obliged. Is this offer and acceptance?

One of the first cases I remember from Contracts is Leonard v. Pepsico. In that case, an enterprising law student collected the cash equivalent of 7 million Pepsi points, and requested from Pepsi a Harrier jet. The court, of course, rejected this suit, finding that there was no actual offer made, and even if there was an offer made, no reasonable person would have thought Pepsi was offering a Harrier jet in exchange for 7,000,000 Pepsi Points.

Which brings me to this story.

On Monday’s “Tonight Show With Jay Leno,” Maher said he would donate $5 million to the charity of Trump’s choice (Maher suggested Hair Club for Men, among others) if the “Celebrity Apprentice” host could prove he is not the “spawn of his mother having sex with an orangutan.” Maher was mocking Trump’s much-publicized announcement in October that he would donate $5 million to charity if Obama would release his college records.

Donald Trump, an absolute blowhard and fool, seems to have taken Maher up on this offer. For serious.

Here is the letter Trump’s attorney sent Maher:

Dear Mr. Maher:

I represent Mr. Donald J. Trump.  I write on his behalf to accept your offer (made during the Jay Leno Show on January 7, 2013) that Mr. Trump prove he is not the “spawn of his mother having sex with an orangutan.”

Attached hereto is a copy of Mr. Trump’s birth certificate, demonstrating that he is the son of Fred Trump, not an orangutan. Please remit the $5 million to Mr. Trump immediately and he will ensure that the money be donated to the following five charities in equal amounts: Hurricane Sandy Victims, The Police Athletic League, The American Cancer Society, The March of Dimes, and The Dana-Farber Cancer Institute.


Scott S. Balber

It seems that Trump is represented by Scott Balber, the head of financial services litigation at Cooley New York, so this is legit.

So, was Maher’s statement a valid offer? If so, was it an offer that a reasonable person would think was legitimate? Mind you, let’s talk about the reasonable person standard, and not the ridiculous Donald Trump standard, as Donald routinely offers people millions of dollars for birth certificates. Also, is it that outlandish to think that Trump in fact is the “spawn of his mother having sex with an orangutan”?

I can’t wait to see if Trump files suit against Maher over this.

H/T Will S.

Update: It looks like Trump is going to sue if Maher doesn’t pay up.

 “He made an absolute offer. I made an absolute acceptance. I showed him documentation, and he owes me $5 million, which I’m going to give to charities,” Trump said. “Let’s see what happens, and if he doesn’t give me the money, we’ll probably sue him.”

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Jan 9, 2013

Breyer, Scalia, and Clement Go Trolling South of the Border

From argument in Maracich v. Spears.

JUSTICE BREYER: I want it south of that, and now you will tell me the words I can use that will both help your client because they will cover this case, but will also be south of that.

JUSTICE SCALIA: What is south? I don’t have a compass here. (Laughter.)

JUSTICE BREYER: South means — south means it does not — you can’t just go and troll for clients simply because you think a defendant has done something wrong, and you have no client.

MR. CLEMENT: If you want to draw the line south of the trolling line, then I think what you would say is this is an easy case because no communication took place until my clients had a client.

And later, Justice Scalia returned to the border.

JUSTICE KAGAN: But your line –

­ JUSTICE SCALIA: They’re north of that line, right?


As does Justice Breyer.

JUSTICE BREYER: Why don’t you give us the line that’s north. North of trolling.

On twitter, I posed a suggestion to Jay Wexler, the resident SCOTUS Laughter expert. I think a new category should be created for Laughter-Assist. Very often Justice Breyer will set up for a joke, and Justice Scalia will swoop in and steal it. SGB should not be left without credit. Maybe a laughter is worth two points, and an assist is worth one? This could work.


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Jan 9, 2013

Kozinski on Hitler, Stalin, and the Second Amendment

If the Drudge Report’s messaging is too blunt for you, I commend for your attention Judge Kozinski’s dissent in Silveira v. Lockyer:

All too many of the other great tragedies of history — Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few — were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 578-579. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

See my earlier comments here.

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Jan 9, 2013

Scalia waxes about conspiracy

I really liked this concluding paragraph in Smith v. United States from Justice Scalia’s unanimous opinion for the Court.

Having joined forces to achieve collectively more evil than he could accomplish alone, Smith tied his fate to that of the group. His individual change of heart (assuming it occurred) could not put the conspiracy genie back in the bottle. We punish him for the havoc wreaked by the unlawful scheme, whether or not he remained actively involved. It is his withdrawal that must be active, and it was his burden to show that.

Boy can he write.

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Jan 9, 2013

Has Any Crazy Taxpayer Group Cited NFIB for the Proposition that the Failing To Pay A Tax Cannot Make One A Lawbreaker?

During his hand-down of the opinion, Chief Justice Roberts said:

It is indeed likely that many Americans will choose to pay the IRS rather than buying insurance and someone who makes that payment has fully complied with the law.

He has not done anything unlawful.

The Solicitor General confirm that understanding in his briefs and at oral argument.

And this passage in particular from the opinion:

Third, although the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.

By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.11

FN 11 Of course, individuals do not have a lawful choice not to pay a tax due, and may sometimes face prosecution for failing to do so (although not for declining to make the shared responsibility payment, see 26 U. S. C. §5000A(g)(2)). But that does not show that the tax restricts the lawful choice whether to undertake or forgo the activity on which the tax is predicated. Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax.

And what if the tax is not “properly paid.” What powers can the Government bring to bear in such cases?

FN11, which seems to have been added on during an “oh crap we can’t legalize failing to pay taxes” moment, seems to say people don’t have the choice to pay a tax that is already due, and can be criminally prosecuted for failing to do so, though not the shared responsibility payment (there was a statutory carveout for failing to pay this tax).

However, the second sentence is giving me a lot of angst. “But that does not show that the tax restricts the lawful choice whether to undertake or forgo the activity on which the tax is predicated.” Is this placing a limitation on the taxing power on whether the person engaged in activity or not? In other words, did Roberts import the activity/inactivity distinction into his saving construction of the taxing power? So Congress can impose a tax on inactivity, but can’t force people to pay it? Am I read this right? I am not an expert in tax law, so I may be off base.

But then the final three sentences in the footnotes seems to say a person may not avoid buying health insurance, and not the pay the tax. But what happens if a person does that? What happens if a person decides not to buy insurance, and decides not to pay the penalty? Assume the ACA’s prosecutorial carveout was not in the case. What punishment can the government mete out? Nothing? Can the government not punish such a person? Am I reading this right?

Wesley Snipes, call me maybe.

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Jan 9, 2013

Odd Lineup: Roberts writes for Unanimous Court, and Kennedy Concurs, Joined by Thomas, Alito, and Sotomayor

You would think you would have seen such a lineup already, but here it is Already. I think this case is certainly a victory for Nike.  I was procrastinating reading this opinion, but then I said “Just do it!”

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Jan 9, 2013

“if you’re actions result in only saving one life, they’re worth taking.”

The Vice President on the justifications for the President’s planned executive orders imposing new gun controls.

“As the president said, if you’re actions result in only saving one life, they’re worth taking. But I’m convinced we can affect the well-being of millions of Americans and take thousands of people out of harm’s way if we act responsibly.”

Update: The President, in responding to the idiotic deport Piers Morgan petition, opined on the pending efforts to impose gun control laws. Here is one interesting quote from his video:

“Because if there is even one thing we can do as a country to protect our children, we have a responsibility to try.”

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Jan 9, 2013

RIP James Buchanan

He died today at 93.

Tim Sandefur has a fitting tribute here:

Nobel laureate James Buchanan died today at the age of 93. Along with his colleague Gordon Tullock, Buchanan founded the branch of political economy called “public choice.” Public choice theory studies the economic incentives of legislating—and explains how private interest groups use government to shut out competition or to seize land for private use or impose other kinds of burdens on their rivals out of their own self-interest. This was a phenomenon the founding fathers were well aware of, but public choice scholars have applied scholarly rigor to show how and why groups spend so much time and effort to influence the redistributive state. Written in his crisp, precise style, Buchanan’s insights became essential to our more sophisticated contemporary understanding of how and why the government violates our rights, and what we can do to stop it. And in Kelo v. New London, Pacific Legal Foundation had the honor of representing Buchanan and Tullock, and filed this brief explaining the public choice effects of eminent domain abuse. Sadly, the Court’s decision in that case worsened the situation and proved Buchanan’s predictions like a laboratory experiment. RIP, Prof. Buchanan—thank you for all you taught us.

Buchanan and Tullock were icons at GMU. I never met Buchanan. Tullock was still teaching at Mason while I was there, but I never took his class. Though, I lived in the same building with him for about a year. Once at a reception at GMU, he asked me why legislatures pass a vote based on majority rule, rather than supermajority rule. lt was a question I had never considered before. Brilliance.

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Jan 9, 2013

Video: Learned Hand Sings A Ballad of American History

Come on. Admit it. When you were learning the Hand Formula in Torts, you hummed along, and wondered what it would sound like if Learned Hand was singing it. Well now, thanks to the Sound Recordings of the Library of Congress, you can hear how Learned Hand sounded when he sang.

In this recording, Judge Hand sings the song “The Iron Merrimac.” The recording was made in Washington D.C. on October 3, 1942 when Hand was 70 (he would live until 1961). It was published by the Library of Congress in “Songs of American History and the Assasination of Presidents.” Of course, Hand is singing about the battle between the Merrimac and the Monitor, more commonly known as the Battle of Hampton Roads.

Hand explains how he came to learn that song

That song I learned, about I should suppose, 60 years ago, in Elizabethtown, which is a very small village in theAdirondack’s Mountains, Essex County, about 8 miles from Lake Champlain. It was then sung by boys of my own age. A few. And, I know nothing more about it than that. I think possibly it was song by my Uncle’s hired man who had been in the Civil War. But that I am very uncertain of. I don’t know where we boys picked it up.

Here is my rough transcript (I couldn’t understand some of them)

The iron Merrimac,with others at her back,

Commanded by () , and the gradiyo

From Norfolk started out, and put her all to rout

And to make an end of Yankee Doodle Dandy, Oh

The Cumberland went down, and the () ran aground

Made the Yankee core look ()

When () the Monitor appeared

And the music struck up Yankee Doodle Dandy, Oh

The Rebels shot through hot, Yankees answered not

Till they got within a distance, ()

() To his crew,

Boys, we’ll see what we can do

When we fight for little yankee Doodle Dandy, Oh.


H/T Priscilla J. who sent it to Adam White who sent it to me. Adam recently reviewed the new book about Learned Hand in the WSJ.

Update: Thanks to Orin for the link.

Thanks to some of the comments, I have more context.

ContraStercorum • 17 hours ago

If you listen to the lyrics Judge Hand is singing, they quite clearly describe the first day of the naval battle in Hampton Roads that culminated later with the Monitor-Merrimack (“Iron Merrimack” in the lyrics) engagement. The CSS navy built the iron-clad ship they called the Virginia on the hull of the captured Merrimack. The Union and history referred to the ship by the original Union ship’s name.

The original tune and lyrics were probably based on the War of 1812 song but rewriting lyrics of old songs to fit new events of topical interest is a common part of the folk process.

And someone found the lyrics!

At this link:


There is what appears to be a broadsheet (undated) with very similar lyrics. Clears up some of the less-than-clear lyrics in Judge Hand’s version of the song, and Blackman’s attempted transcription.

Here is a transcript of the lyrics that I think Hand was trying to sing.

Their iron Merrimack,

With others at her back,

Commanded by Buchanan, the old granny, oh,

From Norfolk started out,

And tried to put to rout,

And capture little Yankee Doodle Dandy, oh.

The noble little band

on board the Cumberland,

All disabled, was asked to surrender, oh

“You may sink us, if you like,

But my flag I will not strike,”

Says brave Morris, “to the last we will defend her oh.”

The rebel shot flew hot,

But the Yankees answered not,

Till tehy go within a distance they called handy, oh

“Now,” says Worden to his crew,

“Boy’s lets see what you can do-

If you take this iron rebel you’re the dandy, oh.”

The PDF is here, and I insert the cool broadsheet as a JPG.


Update: Prof. Steve Lubet writes in with this information about the origin of the tune:

The lyrics are clearly about the Civil War, but the melody is “The Bonnie Lass of Fyvie-O,” which is a traditional tune from Scotland:

Our captain fell in love with a maiden like a dove/

And they called her by her name, Pretty Peggy-O.

Here is a traditional version by the Corries:

Here is a version by Jerry Garcia, which he calls Fenario:

There are many others – including one on Bob Dylan’s first album – but I’d never heard the Civil War version.

Update: Another version from Joan Baez, courtesy of my former employer, the Honorable Danny. J. Boggs.

From Learned Hand to Joan Baez to Jerry Garcia!

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Jan 9, 2013

Baseball Abandoning Dugout-Bullpen Landlines, Transitioning to Cell Phones

After some embarrassing games where the classical dugout phone failed, MLB is joining the 21st century, and adopting a modern approach to communication between the dugout and bullpen.

 Major League Baseball is now about to disconnect the landlines that link dugouts to bullpens. Long after the rest of society embraced cellphones, managers and coaches will soon be able to discuss pitching changes on Samsung Galaxy S III phones.

The 21st-century 4G dugout-to-bullpen connection that is being created by T-Mobile USA as part of its wireless sponsorship with Major League Baseball was announced Tuesday at the International Consumer Electronics Show in Las Vegas.

 “This is baseball’s continued push into the digital age,” said Tim Brosnan, Major League Baseball’s executive vice president for business. “It’s also about a very aggressive wireless provider that sought us out to create this unique communications platform.”

If Steinbrenner was still alive, he would totally be texting the manager, “You’re Fired!”

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Jan 9, 2013

Prop1 – Welcome to Property I

Hi everyone. Welcome to Property I. You can view the course homepage here, and the syllabus here. See you in class on Tuesday.

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