Eugene Volokh's Blog, page 69

[David Bernstein] The Worst Libertarian Argument for Large-Scale Immigration to the US

[If immigration reduces social trust, that's a bad thing, even if it leads to smaller government. ]

Some opponents of liberal immigration fear that immigrants will cause the US to have a bigger welfare state. This would occur because the immigrants would be more likely to be on government assistance, would bring political attitudes from less libertarian societies, or both.

Libertarian proponents of immigration have several responses to this fear. One such response is that large immigrant populations tend to reduce the size of the welfare state. Immigrants, after all, are different in a variety of ways--appearance, culture, religion, etc-- from the native-born. Given natural in-group preferences, the native-born therefore tend to be suspicious of newcomers.

This suspicion manifests itself as a decline in social trust. A lack of social trust, in turn, makes people less likely to want to vote for big spending programs as a matter of social solidarity. In other words, you are less likely to vote in line with social solidarity if there is less social solidarity, and immigration leads to less social solidarity.

To my mind, this is a terrible argument. There was a time when I was younger and more of a single-minded libertarian that it likely would have appealed to me; anything that reduces the size of the state, I would have thought, is a good thing.

But now I'm older, not necessarily wiser, but perhaps a bit more conservative in a non-ideological sense. I'm also less enamored of "libertarianism uber alles" and more of a milquetoast classical liberal and concerned with living in a good society, not just one that has less government.

In a good society, people have social trust that manifests itself in behavior. They volunteer, they help their neighbors, they care about their communities. And if they think big government is a manifestation of social trust/solidarity, they will vote for big government.

I think big government tends to be corrosive of community and pits people who might otherwise get along against each other in a scramble for political rents. I also think that many government programs are wasteful and often counter-productive, and I'm sympathetic to the notion that they often are rights-violative as well.

I wish I could persuade my fellow citizens that this were true; that live and let live, voluntary and charitable associations, and so on, are the true mark of social cohesion and caring about your neighbor. But if I and others can't, I'd rather live in a society where there is a strong degree of social solidarity and a large government than in a society where people oppose government programs out of nativisim, suspicion, and hostility to their neighbors. So if mass immigration actually reduces social trust, that's a mark against, not for, mass immigration, even if it also reduces the size and scope of government.

The post The Worst Libertarian Argument for Large-Scale Immigration to the US appeared first on Reason.com.

[Eugene Volokh] "Protecting Reputation Is Not Enough to Overcome Public Access" to Court Records

[A lawyer tried to seal a copy of an earlier judge's order that had made certain claims about the lawyer.]

From the July 11 decision in Lask v. Fallon, by Magistrate Judge James Wicks (E.D.N.Y.):

Following resolution of this case, Plaintiff now seeks to seal a docket entry of an otherwise public record—a court decision issued by the Hon. Loretta Preska in an unrelated case that was filed in this case in support of an earlier motion to dismiss…. [T]his is [the third] attempt to remove or seal this document from the court record…. And in this case, three times is not a charm and must be denied (again).

In this latest motion, Plaintiff moved for the identical relief that was before the Hon. Judge Rachel P. Kovner, which was denied. In relevant part, Judge Kovner wrote:

The challenged order, submitted as an exhibit in support of defendant Fallon's motion to dismiss, easily qualifies as a judicial document…. '[T]he general and deeply rooted rule is that the presumptive right of access is afforded strong weight when applied to documents that play a central role in determining litigants' substantive rights—conduct at the heart of Article III.' … And … to the extent plaintiff asserts a privacy interest, '[t]he fact that a document has been publicly available weighs against restricting public access to it.'

But that's not all. That first application to seal was filed only after Judge Kovner denied Plaintiff's motion to strike the document from the docket. Since those two rulings, only two circumstances changed, namely, the parties consented to the undersigned [Magistrate Judge] for all purposes … and the case settled. Plaintiff argues now that the case is resolved and that the documents requested to be sealed are "not part of the adjudicative process in this case" and so, the motion to seal should now be granted. For the reasons that follow, Plaintiff's Motion to Seal is DENIED….

"A judicial document is not simply a document filed with the court, but one that is 'relevant to the performance of the judicial function and useful in the judicial process.'" … Generally, motions to dismiss have been deemed a judicial document…. Here, Plaintiff seeks to seal an exhibit to Defendants['] … Motion to Dismiss and redact paragraph 21 of Defendants' Declaration in Support of the Motion to Dismiss. Thus, these documents submitted in connection with their Motion to Dismiss, clearly [are judicial documents]. {"Because a Motion to Dismiss is potentially dispositive of a party's claims, a strong presumption of public access attaches to these documents."} …

[W]ithdrawal of a motion {does not} change the nature of the original document(s) filed…. Indeed, if a case settles or otherwise is resolved prior to a Court's ruling on the merits of the motion, the condition of the filings remains that of a "judicial record." See Bernstein v. Bernstein Litowitz Berger & Grossmann (2d Cir. 2016)….

Plaintiff … discusses the reputational harm that will occur if this motion is denied. Notably, Courts have held that protecting reputation is not enough to overcome public access.

Finally, "once '[t]he genie is out of the bottle,' the Court does 'not [have] the means to put the genie back.'" As previously noted, these documents were filed on November 12, 2024. Failure to take prompt action in requesting that public documents be sealed may, alone, be a justifiable reason to deny a motion to seal. This is Plaintiff's second request to move to seal the same documents. The first request came three months after the filing and now, this request nearly eight months later.

Accordingly, Plaintiff has not overcome the presumption of public access, and the Motion to Seal is denied.

Looking at Judge Rachel Kovner's earlier decision, which this decision refers back to, plaintiff seemed to be trying to seal a copy of this order by Judge Loretta Preska, which also seems to be excerpted in Magistrate Judge Robert Lehrburger's decision last week in Rhee-Karn v. Lask (S.D.N.Y.) (a malpractice case against Ms. Lask):

Lask's stalking of Judge Preska, on the other hand, has ample support in the record. In an order dated August 1, 2019, Judge Preska described Lask's shocking behavior directed at a federal judge, her family, and her judicial clerks:

[I]n the Court's view, Ms. Lask has stalked the Court and chambers staff. She has alleged that she has been "informed that [the Court's] husband owned stock in [a] company" that Ms. Lask sued 17 years ago. Ms. Lask also purports to have investigated chambers IP addresses and monitored certain sites visited. Because of these actions, the matter has been referred to the United States Marshal.

Ms. Lask has telegraphed additional delay and aggravation—she has threatened to seek "a hearing with" … two former law clerks of the Court (neither of whom has the remotest possible connection to any fact in the underlying action). Ms. Lask purports to have called them after she had an interchange with the Court that she deemed unsatisfactory. (Ms. Lask does not explain how she just happened to contact one of the Court's former law clerks immediately after the call.) She also purports to have recorded one or both of her calls to [the former law clerks]—possibly an illegal and/or unethical act for a lawyer.

Due to the referral of the matter to the United States Marshal, Judge Preska recused herself from the matter. Although Lask's outrageous conduct was unquestionably effectuated in bad faith and without legal color, Rhee-Karn has not demonstrated that she is entitled to attorney's fees or costs under either § 1927 or the Court's inherent authority.

Here's Ms. Lask's response to the July 11 decision rejecting her motion to seal:

I respectfully submit this letter to preserve my objection to the Court's July 11, 2025 Order (ECF 81) denying a motion to seal Defendant Fallon's filing, which he has since withdrawn and disavowed. I understand from the decision that the Court does not wish to entertain further briefing on this issue. For clarity, this letter does not seek reconsideration and should not be converted to such. It is submitted solely to preserve the record for appeal. SerVaas Inc. v. Mills, 661 F. App'x 7, 9 (2d Cir. 2016). Please note that I appreciate that while denying the motion to seal, Your Honor exercised commendable restraint by declining to recite, quote, or describe the contents of the prejudicial document.

As the Court may recall, the June 25, 2025 conference was held for me and Mr. Fallon to inform that a joint motion to seal his filing was sought. Your Honor acknowledged that Judge Kovner previously ruled on a related request. I responded that new facts exist, Fallon joined in the motion to seal and Your Honor informed to file the motion and to note that Fallon did not oppose it.

I respectfully object to the Order's characterization of the motion as a reconsideration. It was based on materially new facts not before Judge Kovner, including post-Kovner facts of Fallon's deposition testimony that a third party encouraged the filing unrelated to this case, Fallon withdrew the motion he attached the document at issue to before any consideration, and he expressly agreed in his letter on the docket that the document was immaterial and joined in the sealing - supporting the document is not part of the adjudicative process and fails the first prong of Lu[g]osch. Further, I believe the Order misapplied controlling precedent under Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019) and Nixon v. Warner Commc'ns, 435 U.S. 589 (1978) - both prohibiting court dockets from being used to "gratify private spite or promote public scandal."

The post "Protecting Reputation Is Not Enough to Overcome Public Access" to Court Records appeared first on Reason.com.

[Stephen E. Sachs] "Yes, The Founders Were Originalists"

[A critical review of a new book on history and originalism.]

Does history defeat originalism? A recent book by Jonathan Gienapp, Against Constitutional Originalism, argues that it does. Will Baude and I have a critical review of the book, forthcoming in the Yale Journal of Law & the Humanities, that's now available on SSRN.

From the abstract:

Jonathan Gienapp's Against Constitutional Originalism accuses originalism of a kind of self-defeat, arguing that the Founders weren't really originalists. But like Jefferson Powell's similar argument forty years ago, which encouraged a shift from original intent to original meaning, Gienapp's work may only help along a similar shift, this time from original meaning to our original law.

Gienapp makes four main claims: that the Founders' Constitution wasn't conventional law; that the Founders couldn't agree on how to read it; that much of their fundamental law was unwritten; and that no originalist theory can account for this. As we argue, the first claim is bunk; the second overstated; the third true, but no problem for originalism; and the fourth a theoretical claim that the book's history utterly fails to defend. The Constitution was indeed law, understood as such by its contemporaries, and coexisting with other bodies of law in ways that originalists routinely respect. Far from proving the case against originalism, Against Constitutional Originalism only strengthens the case for originalism, done well.

As they say, read the whole thing!

The post "Yes, The Founders Were Originalists" appeared first on Reason.com.

[Eugene Volokh] "Plaintiff Simply Wants to Erase Any Evidence That He Initiated a Case," but "Plaintiff Cannot Unring a Bell"

["Furthermore, the Court is not in the business of scouring and removing data from GovInfo.gov, PACERMonitor, CaseText, and Justia" (which is what the Plaintiff had requested).]

From Magistrate Judge Anthony Patti (E.D. Mich.) Report and Recommendation in Lopez v. Chase, just adopted Thursday by Judge Shalina Kumar (quite correctly, I think):

Seven months [after filing this pro se case], Plaintiff filed three successive motions, all aiming to erase his case from the court docket in some fashion…. [A]ll three of Plaintiff's motions seek to seal this case, and order third parties to cease any publication or dissemination thereof. The Court should deny all three motions.

Unlike information merely exchanged between the parties, "[t]he public has a strong interest in obtaining the information contained in the court record." There is a "strong presumption" in favor of open court records. The party seeking to seal records before the court has the burden of overcoming that presumption and "[t]he burden is a heavier one than for a protective order [as]: 'Only the most compelling reasons can justify non-disclosure of judicial records.'" …

Here, Plaintiff does not overcome the strong presumption against sealing records in civil cases. He requests sealing the case "due to concerns about privacy, security, and the potential for misuse of sensitive information." He further states that the risk of harm includes potential for identify theft, fraudulent use of personal details, reputational damage, and "physical security risks if sensitive information is misused." There is simply not enough information provided to meet Plaintiff's burden. This case has been closed for almost a year, and the documents which are apparently of concern to Plaintiff have been in the public record since that time. Moreover, it is Plaintiff himself who filed the documents in the public record, so this is not a situation where Plaintiff is timely objecting to private information being filed by an adversary.

Finally, and most importantly, Plaintiff fails to identify what precisely is private or sensitive in his 227-page, case-initiating document. Even if a party can demonstrate a compelling reason for sealing a document, or portions of a document, "the seal itself must be narrowly tailored to serve that reason." A "brief, perfunctory, and patently inadequate" explanation for the purported need to seal a document will not suffice. It is not the Court's responsibility to comb through his expansive filing to potentially guess at what Plaintiff contends is of concern. It seems to the Court that Plaintiff simply wants to erase any evidence that he initiated a case that was subsequently dismissed. But Plaintiff cannot unring a bell.

A party's fear of embarrassment or harm to reputation, or a fear of a negative impact on future employment, does not provide grounds for sealing a public record. Put succinctly, "a record may not be sealed 'merely because it could lead to a litigant's embarrassment.'" In a case of civil litigation, only information covered by a recognized privilege (attorney-client), information required by statute, and trade secrets are typically found to be enough to overcome the presumption of access. Thus, the Court should deny Plaintiff's requests to seal his court records, and the attendant request to somehow direct third parties to prevent their dissemination, which the Court is likely without authority to order in any event….

Furthermore, the Court is not in the business of scouring and removing data from GovInfo.gov, PACERMonitor, CaseText, and Justia [as the Plaintiff had requested]. When Plaintiff chose to file a lawsuit, he placed himself at risk that the information would be picked up by various legal databases, as courthouses and court records are, with few and narrow exceptions, an inherently public space. As such, "Plaintiff is trying to slam the door of the barn after the horses are long gone." …

The post "Plaintiff Simply Wants to Erase Any Evidence That He Initiated a Case," but "Plaintiff Cannot Unring a Bell" appeared first on Reason.com.

[Josh Blackman] The Three Real Questions That Come After Overruling Employment Division v. Smith

[What is a "religion"? When is a religious belief "sincere"? When is a burden on religion "substantial"?]

Fulton v. City of Philadelphia is about four years old. Yet, the Court seems no closer to deciding whether to overrule Employment Division v. Smith. Of course, three Justices were ready to do so in Fulton. But Justices Barrett and Kavanaugh had some questions about what would replace Smith. I honestly can't even remember what those questions were. And I'm not sure how much they even matter. I think those questions were mostly filler--Barrett and Kavanaugh had to say something because they were unwilling to overrule Smith. If those questions were really so important, there should have been some subsequent writings to address the point. There haven't been. Indeed Mahmoud went out of its way to avoid talking about Smith. I suspect that Barrett and Kavanaugh are content with Tandon, and now Mahmoud, which make it very unlikely that Smith will need to be revisited.

But, a lot of people still care about Smith. Religious liberty groups bring a steady stream of "Overrule Smith" cert petitions. So far, they've been denied. Sooner or later one of these cases may get a fourth vote for cert. And there is some hard work ahead for the Court.

Here, I will sketch three significant questions that would come after overruling Smith. Each of these questions is premised on a completely predictable outcome: once people realize that the Free Exercise Clause allows them to obtain exemptions from neutral laws, they will suddenly discover that their free exercise of religion is being substantially burdened.

To make things simpler, presume that the answers to each of these three questions will require the Court to change pre-existing doctrine. In other words, by overruling Smith, the Court can establish a new test for strict scrutiny. The Court would not simply restore Sherbert v. Verner or adopt the RFRA standard. This test can give the government a bit more leeway. In my view, many--but not all--of these views can be reconciled with existing doctrine. But this presumption will make the thought experiment simpler.

Many of these issues are discussed in my co-authored article on abortion and religious liberty. I think the moment for these sorts of free exercise claims under state RFRAs have largely petered out. The ability to obtain abortion drugs through the mails has made it unnecessary to raise these sorts of time-consuming and difficult free exercise claims.

Here are the three questions.

Question #1 : What is a "religion"?

In Smith, Justice Scalia worried that the Sherbert test allowed every person to become a law unto himself. In other words, a person could gain an exemption from the law by dressing up his political, philosophical, or moral views in the garb of religion. Smith had a religious claim to using a controlled substance, but other people who like to use the same substance may not have the same religious bona fides. For the Free Exercise Clause to be triggered, there has to be religion. What, then, is religion? In most cases, this issue is fairly straightforward. Well-established faiths that have been around for a long time--especially those in existence when the First Amendment was framed--would be religions.

The harder cases would involve new, or recent, faiths. This inquiry blends into the sincerity inquiry. Is this religion an actual religion, established for religious reasons? Or was this religion manufactured for the purpose of gaining exemptions from the law? For example, what if a drug dealer establishes the Church of the Holy Marijuana Leaf, and ordained all of his dealers as ministers?

There is an even harder question lurking under the surface: what about a group that calls itself religious, but rejects all of the traditional indicias of religion. For example, the organization rejects the idea of any higher power, has no rituals, imposes no actual obligations, and so on. Perhaps the organization professes some sort of moral code, but that code has no grounding in anything that traditionally would be understood as religious. If you can tell, I keep using the word tradition. Is there a "history and tradition" approach to deciding what is a religion? Would we consider how the Framers of the First Amendment would have understood a religion? I don't have an answer to these questions here, I am simply raising them.

Question #2: When is a religious belief "sincere"?

It is something of a myth that courts will not probe sincerity. They do. Courts will not determine what the articles of a particular faith are. But they will determine whether a person sincerely adheres to those articles. Historically, these sorts of inquiries are rare. Most people who bring Free Exercise claims in court are presumed sincere. But there are some extreme cases. For example, what happens when a person who is drafted suddenly becomes a Quaker? Or, more commonly, what about prisoners who suddenly discover their Jewish faith as a way to obtain (healthier) Kosher food?

I suppose it is possible to simply measure how long a person has held a particular belief. Or perhaps you can discount a religious belief that was born at a convenient time, such as following the draft or incarceration. But I'm not a fan of these standards. People can find faith during difficult times--there are no atheists in the foxhole, as the saying goes. Why should a person be punished for reaching out to a higher power during difficult times?

In the past, I've written about another way to test sincerity. And this inquiry blurs into the first question about what is a religion. Historically, religions have mandated certain actions, while prohibiting other actions. And a member of that religion should follow at least some of those mandates and prohibitions, because of that religion. Stated differently, is there something you will do because of religion, even if you would otherwise abstain from doing; and is there something you abstain from doing because of religion, even if you would otherwise do it? In my view, if you can identify at least one regular act that fits under either rubric, you have cleared the sincerity threshold. And I say regular to avoid opportunistic claims. You can't simply do something once or for a limited duration. Moreover, if the person stops acting based his beliefs, the exemption should be rescinded.

This bar is not a particularly high. But if a professed religion does not in any way affect how you would otherwise behave, it is more difficult to test whether a religious belief is sincere. In other words, if your religion is merely a facsimile of your personal beliefs, and there is no delta between your religion and your own philosophy, it is harder to establish that there is a religious belief at all--at least a religious exercise that would be cognizable under the Free Exercise Clause.

I freely admit there is a risk with probing sincerity. This sort of inquiry can be weaponized, and exclude worthy claims from protection. That is why I would make the bar very low.

Question #3: When is a burden on religion "substantial"?

In free speech law, the courts will routinely measure the burden on expression. Larger burdens on speech require more more narrow tailoring. But in the context of religion, I'm not sure how much work the word "substantial" plays. Banning a practice seems substantial, but what about making the practice more difficult? What if a state banned ritual Kosher slaughter by requiring that animals must be stunned? This law would certainly make it harder to obtain kosher food, but the food could still be imported from other jurisdictions at a higher cost. Is this burden substantial? Consider anther example. I do not weak a yarmulka in public, though I wear one in synagogue. What if the government passed a law that prohibited wearing religious symbols in government buildings. Could a person who would not otherwise wear a yarmulka in a government building claim a burden that is substantial? I suppose the burden could be described at a high level of abstraction, but is it really substantial?

This third inquiry blurs with the first two questions. Even if a person has a sincerely held belief in certain aspects of a religion, I think the claimant would have to show that the law in question is in fact substantially burdening that particular facet of religion.

It is also worthwhile to consider the facts from Hobby Lobby. Under the ACA, the failure to cover all of the forms of emergency contraception would result in an annual penalty of $2,000 per employee. If we apply the logic of NFIB, there is no actual mandate, but instead a penalty for not purchasing insurance. Justice Alito's majority opinion found that paying the $2,000 penalty was not a viable alternative, as the plaintiffs had "religious reasons for providing health-insurance coverage for their employees." In other words, the employers would still have their religious exercise burdened. But one can imagine a different set of facts where a person of faith could pay a nominal penalty to avoid a mandate that violates their religious exercise. Let's say the penalty in Hobby Lobby was $2 per employee. Would that burden be substantial?

***

I think these are the sorts of difficult questions that the Court would have to wrestle with if Smith were overruled. These are not pleasant questions, because they would likely result in certain people not being able to claim protection under strict scrutiny. People do not like their religion being called not a religion, do not like having their religious beliefs being called insincere, and do not wish to measure how much their religion is being burdened.

I remember well the outrage my posts from 2022 occasioned. Maybe that is reason enough why Justices Barrett and Kavanaugh will leave things as they are. But I do not favor such reasoning based on outcomes. If Smith is wrong as an originalist matter, it should not stand. RFRA has proven that strict scrutiny is a viable method of deciding cases. And the Court could always use a slightly-less-strict scrutiny--based on some of the considerations above--to weed out invalid claims.

The post The Three Real Questions That Come After Overruling Employment Division v. Smith appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: July 21, 1824

7/21/1824: Justice Stanley Matthews's birthday.

Justice Stanley Matthews

The post Today in Supreme Court History: July 21, 1824 appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: July 20, 1990

7/20/1990: Justice William Brennan resigns.

Justice William Brennan

The post Today in Supreme Court History: July 20, 1990 appeared first on Reason.com.

[Eugene Volokh] "Any Lawyer Unaware That [Generative AI Research] Is Playing with Fire Is Living in a Cloud"

From In re Martin, decided yesterday by Bankruptcy Judge Michael Slade (N.D. Ill.):

While I appreciate Mr. Nield's and Semrad's remorse and candor [in their response to my order to show cause], I find that they both violated Federal Rule of Bankruptcy Procedure 9011 [by] {filing a brief containing fake quotations and nonexistent authority manufactured by artificial intelligence}. I further find that a modest, joint-and-several sanction of $5,500, paid to the Clerk of the Bankruptcy Court, along with a requirement that Mr. Nield and another senior Semrad attorney attend an upcoming course on the dangers of AI scheduled for the National Conference of Bankruptcy Judges (NCBJ) annual meeting in September, is the least harsh sanction that will appropriately address counsel's conduct and deter future, similar misconduct from them and others….

The first reason I issue sanctions stems from Mr. Nield's claim of ignorance—he asserts he didn't know the use of AI in general and ChatGPT in particular could result in citations to fake cases. Mr. Nield disputes the court's statement in Wadsworth v. Walmart Inc. (D. Wyo. 2025) that it is "well-known in the legal community that AI resources generate fake cases." Indeed, Mr. Nield aggressively chides that assertion, positing that "in making that statement, the Wadsworth court cited no study, law school journal article, survey of attorneys, or any source to support this blanket conclusion."

I find Mr. Nield's position troubling. At this point, to be blunt, any lawyer unaware that using generative AI platforms to do legal research is playing with fire is living in a cloud. This has been a hot topic in the legal profession since at least 2023, exemplified by the fact that Chief Justice John G. Roberts, Jr. devoted his 2023 annual Year-End Report on the Federal Judiciary (in which he "speak[s] to a major issue relevant to the whole federal court system," Report at 2) to the risks of using AI in the legal profession, including hallucinated case citations.6 To put it mildly, "[t]he use of non-existent case citations and fake legal authority generated by artificial intelligence programs has been the topic of many published legal opinions and scholarly articles as of late."7 At this point there are many published cases on the issue—while only a sampling are cited in this opinion, all but one were issued before June 2, 2025, when Mr. Nield filed the offending reply. See, e.g., Jaclyn Diaz, A Recent High-Profile Case of AI Hallucination Serves as a Stark Warning, NPR Illinois (July 10, 2025, 12:49 PM) ("There have been a host of high-profile cases where the use of generative AI has gone wrong for lawyers and others filing legal cases …. It has become a familiar trend in courtrooms across the U.S."). The Sedona Conference wrote on the topic in 2023. Newspapers, magazines, and other well-known online sources have been publicizing the problem for at least two years. And on January 1, 2025, the Illinois Supreme Court issued a "Supreme Court Policy on Artificial Intelligence" requiring practitioners in this state to "thoroughly review" any content generated by AI.

Counsel's professed ignorance of the dangers of using ChatGPT for legal research without checking the results is in some sense irrelevant. Lawyers have ethical obligations not only to review whatever cases they cite (regardless of where they pulled them from), but to understand developments in technology germane to their practice. And there are plenty of opportunities to learn—indeed, the Illinois State Bar Association chose "Generative Artificial Intelligence—Fact or Fiction" as the theme of its biennial two-day Allerton Conference earlier this year, calling the topic "one that every legal professional should have on their radar." Similar CLE opportunities have been offered across the nation for at least the past two years.

The bottom line is this: at this point, no lawyer should be using ChatGPT or any other generative AI product to perform research without verifying the results. Period. See, e.g., Lacey v. State Farm Gen. Ins. Co. (C.D. Cal. May 5, 2025) ("Even with recent advances, no reasonably competent attorney should out-source research and writing to this technology—particularly without any attempt to verify the accuracy of that material."); Mid Cent. Operating Eng'rs Health & Welfare Fund v. HoosierVac LLC (S.D. Ind. 2025) ("It is one thing to use AI to assist with initial research, and even non-legal AI programs may provide a helpful 30,000-foot view. It is an entirely different thing, however, to rely on the output of a generative AI program without verifying the current treatment or validity—or, indeed, the very existence—of the case presented."). In fact, given the nature of generative AI tools, I seriously doubt their utility to assist in performing accurate research (for now). "Generative" AI, unlike the older "predictive" AI, is "a machine-learning model that is trained to create new data, rather than making a prediction about a specific dataset. A generative AI system is one that learns to generate more objects that look like the data it was trained on." Platforms like ChatGPT are powered by "large language models" that teach the platform to create realistic-looking output. They can write a story that reads like it was written by Stephen King (but wasn't) or pen a song that sounds like it was written by Taylor Swift (but wasn't). But they can't do your legal research for you. ChatGPT does not access legal databases like Westlaw or Lexis, draft and input a query, review and analyze each of the results, determine which results are on point, and then compose an accurate, Bluebook-conforming citation to the right cases—all of which it would have to do to be a useful research assistant. Instead, these AI platforms look at legal briefs in their training model and then create output that looks like a legal brief by "placing one most-likely word after another" consistent with the prompt it received.

If anything, Mr. Nield's alleged lack of knowledge of ChatGPT's shortcomings leads me to do what courts have been doing with increasing frequency: announce loudly and clearly (so that everyone hears and understands) that lawyers blindly relying on generative AI and citing fake cases are violating Bankruptcy Rule 9011 and will be sanctioned. Mr. Nield's "professed ignorance of the propensity of the AI tools he was using to 'hallucinate' citations is evidence that [the] lesser sanctions [imposed in prior cases] have been insufficient to deter the conduct."

The second reason I issue sanctions is that, as described above, I also have concerns about the way this particular case was handled. I understand that Debtor's counsel has a massive docket of cases. But every debtor deserves care and attention. Chapter 13 cases can be challenging to file and manage—especially when they involve complexities like those in this case. If a law firm does not have the resources to devote the time and energy necessary to shepherd hundreds of Chapter 13 cases at the same time, it should refer matters it cannot handle to other attorneys who can—lest a search for time-saving devices lead to these kinds of missteps. What I mean to convey here is that while everyone makes mistakes, I expect—as I think all judges do—attorneys to be more diligent and careful than has been shown here….

The post "Any Lawyer Unaware That [Generative AI Research] Is Playing with Fire Is Living in a Cloud" appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: July 19, 1949

7/19/1949: Justice Frank Murphy dies.

Justice Frank Murphy

The post Today in Supreme Court History: July 19, 1949 appeared first on Reason.com.

[Eugene Volokh] Court Strikes Strikes Down Tennessee Law Banning "Recruit[ing]" Pregnant Minors to Get Abortions, Including Legal Out-of-State Abortions

From Sixth Circuit Judge Julia Gibbons, sitting by designation on M.D. Tenn., in today's Welty v. Dunaway:

[A Tennessee law, § 39-15-201,] makes it a crime to "intentionally recruit[ ] … a pregnant unemancipated minor" in Tennessee "for the purpose of" obtaining an abortion that would be illegal in Tennessee. But § 39-15-201 does not merely bar recruitment of minors to facilitate illegal abortions in Tennessee; it bars recruitment of minors to facilitate abortions "regardless" of where the procedure occurs. In other words, the law prohibits recruiting an out-of-state abortion that is entirely legal in that state, so long as it would be illegal in Tennessee….

Section 39-15-201 contains a few exceptions, including one for "the provision of a medical diagnosis or consultation regarding pregnancy care of an unemancipated minor," as long as that consultation does not involve an actual attempt to terminate the pregnancy or arranging for travel to do so. The statute also exempts four classes of individuals: a pregnant minor's parent or legal guardian; a person who has obtained consent from such parent or guardian; common carriers transporting passengers in the ordinary course of business; and emergency medical personnel acting within the course of their duties. The statute contains no exception, however, for family members besides parents or guardians—an unemancipated minor's aunt or uncle, adult sibling, or grandparent could be prosecuted for "recruiting" the minor to procure an abortion….

The court concluded that "recruiting" including persuasion:

The ordinary meaning of "recruit," while broad, is sufficiently clear "to give ordinary people fair notice of the criminalized conduct." Certain speech is almost certainty prohibited recruitment under the provision: for example, a pregnant minor's 20-year-old sister, hoping to persuade her younger sister to obtain an abortion, says, "if I were in your shoes, I would get an abortion" and then tells her where to obtain an out-of-state abortion.

And, given this, the court concluded that the prohibition was unconstitutional:

Section 39-15-201 prohibits speech encouraging lawful abortion while allowing speech discouraging lawful abortion. That is impermissible viewpoint discrimination, which the First Amendment rarely tolerates—and does not tolerate here….

Defendants do not contest that the recruitment provision is a content- or viewpoint-based restriction. In fact, in some parts of their brief, they appear to concede the very point. They argue instead that this is permissible because "much of the speech covered by the Act is unquestionably incident to criminal conduct." But plaintiffs' intended speech seeks only to recruit minors for purposes of obtaining a legal abortion. Thus, plaintiffs' speech cannot be speech integral to crime. And, for the reasons discussed, it is protected speech. The recruitment provision therefore regulates plaintiffs' speech because of its message—"that abortion is safe, common and normal" and available in certain states—and is presumptively unconstitutional. And defendants fail to show—indeed, they do not even argue—that the law survives strict scrutiny….

The statutory language and the legislative record confirm that the recruitment provision is directed at recruitment of lawful abortions. The recruitment provision criminalizes speech encouraging or persuading minors to obtain abortions "regardless" of where they occur, so long as they are illegal in Tennessee. The statute's fiscal note also shows that the recruitment provision was chiefly aimed at speech inducing minors to obtain legal, out-of-state abortions. It contemplates future prosecutions only in relation to abortions in states "where abortion is legal in some capacity." The law's sponsor, when asked about the recruitment provision, suggested it would apply to Planned Parenthood's recent conduct "recruiting children … across state lines" and to Behn's tweet, offering to transport minors "out of state." …

[T]he defendants argue that the recruitment provision validly applies to "speech intended to induce or facilitate the 'harboring' or 'transporting' of a minor within this State for the purpose of obtaining an elective abortion without parental consent." Speech incident to an act of harboring or transporting a Tennessee minor to obtain an illegal abortion would be unprotected. See U.S. v. Hansen. But such speech is rare compared with speech incident to an act of harboring or transporting a Tennessee minor to obtain a legal abortion. And the latter is protected speech—the recruitment provision cannot constitutionally proscribe it….

In September, Judge Aleta Trauger had issued a preliminary injunction blocking enforcement of the law, and that is now on appeal to the Sixth Circuit.

Daniel A. Horwitz, Melissa Kathleen Dix, and Sarah L. Martin (Horwitz Law, PLLC) represent plaintiffs.

The post Court Strikes Strikes Down Tennessee Law Banning "Recruit[ing]" Pregnant Minors to Get Abortions, Including Legal Out-of-State Abortions appeared first on Reason.com.