Appellate Advocacy Blog

Plagiarism as Vice or Virtue

plagiarize (play-jə-rĪz) vb. (17c) To take phrases, sentences, or ideas from someone else's work and use them in one's own work without attribution, as if they were one's own; to use the ideas and expressions of someone else without giving due credit. — plagiarism, n. — plagiarist, n[1]

Some argue that competent plagiarism of legal briefs is not a vice, and perhaps has its virtues.[2] Among other reasons, the argument goes, competent plagiarism saves time and money[3] (which will presumably benefit the client).[4] Thus, competent plagiarism may allow those of more limited means to afford legal representation that they might not otherwise be able to afford.[5] Further, competent plagiarism does no harm to the courts or to the original authors of the plagiarized work.[6]

Courts have not adopted this view. Instead, courts look harshly upon plagiarism (whether competent or incompetent) and consider it a form of dishonesty that, at the very least, violates Rule of Professional Conduct 8.4(c),[7] as two recent cases demonstrate.

In Vallejo v. The Neil Jones Food Co.,[8] the defendant’s motion to dismiss included “whole sections” that “were lifted verbatim, without citation or attribution, from a motion in a different case, on behalf of a different defendant, represented by a different firm, and different attorneys.”[9] The court compared the two motions and concluded the defendant’s brief included “at least a dozen paragraphs that [were] substantively identical and near word-for-word duplicates of the original . . . brief.”[10]

In another case, San Juan, Puerto Rico, sued several oil industry defendants.[11] A year before, a group of about forty other Puerto Rico municipalities filed a putative class action against the same defendants alleging the same claims.[12] The defendants filed several motions to dismiss, and San Juan’s counsel filed untimely oppositions.[13] The defendants accused San Juan’s counsel of plagiarizing materials from the putative class action.[14] The court noted that “San Juan’s 241-page complaint is almost a carbon copy of the original complaint filed a year before in the Municipalities’ Case by different, unrelated counsel.”[15] San Juan’s counsel also filed a motion for leave to file omnibus oppositions, an omnibus opposition to a motion requesting judicial notice, oppositions to the motions to dismiss, and a racketeering case statement.[16] The court concluded that all of these were plagiarized from the Municipalities’ Case.[17]

The court in each case noted the lack of care of the attorneys, even in plagiarizing. The court in Vallejo noted, “The most glaring sign of Defendant's sweeping copy and paste from the . . . brief is on the first page of Defendant's motion; instead of referencing the Plaintiffs in the instant case, Defendant asks the Court to dismiss the complaint of ‘Plaintiff Freddy Gutierrez,’” who was the plaintiff in the other case.[18] The court also noted that counsel had plagiarized a losing brief:

Finally, while plagiarism is patently unacceptable, it is mystifying why a party would double-down on imprudence by reproducing a losing brief. Here, Defendant copied from a motion to dismiss that was denied after being opposed two years ago by Gutierrez's counsel—the very same attorneys and firm who represent Plaintiffs in the instant action.[19]

The court in the San Juan case noted that the complaint contained class action allegations, but the case was not a class action.[20] The plagiarized brief in opposition suffered the same error.[21]

Both courts found that counsel had engaged in professional misconduct by plagiarizing materials from another case. The Vallejo court issued an order to show cause and said,

As noted above, plagiarism, including in briefs filed with the court, is unacceptable. see Odom v. Syracuse City Sch. Dist., No. 519CV835TJMATB, 2020 WL 1689879, at *8 (N.D.N.Y. Apr. 7, 2020) (“Passing off another's ideas as one's own is unacceptable in a first-year college class, and can lead to failing grade or even expulsion. Doing so while engaged in the professional practice of law is worse, and is both feckless and embarrassing.”). The failure to credit another for their work product is an issue the Court takes seriously.[22]

The San Juan court also cited Odom and said:

The touchstone of plagiarism is lack of attribution. As in law school, passing someone else's work off as one's own is wrong as a matter of fact and professional ethics. See Odom v. Syracuse City Sch. Dist., No. 519CV835TJMATB, 2020 WL 1689879, at *8 (N.D.N.Y. Apr. 7, 2020) (“Passing off another's ideas as one's own is unacceptable in a first-year college class, and can lead to failing grade or even expulsion. Doing so while engaged in the professional practice of law is worse, and is both feckless and embarrassing.”). Pursuant to Model Rule 8.4(c) “[i]t is professional misconduct for a lawyer to: ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation,” and “[t]he essence of plagiarism is deceit.” Model Rules of Pro. Conduct r. 8.4(c); Ayala v. Lockheed Martin Corp., 67 V.I. 290, 314 (Super. Ct. 2017) (quoting In re Lamberis, 443 N.E.2d 549, 552 (Ill. 1982)).  . . . Court have also called out the copy-pasting of briefs in one case for use in another without due care to adapt the same to the circumstances of the case.

* * *

The Court finds that this conduct runs afoul not only of Attorney Efron's duty of competence to his client, but also his duty of candor to the Court. See Model Rules of Pro. Conduct r. 8.4(c) (“It is professional misconduct for a lawyer to: ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation”). To be clear, the misconduct here is not merely following a legal theory used by other parties or attorneys in another case. Neither is this an instance of using a template or a standard form document. The misconduct is taking another lawyer's work for a different client, filing it verbatim in this case—apparently without due review or regard for the client's specific circumstances—and on top of all that, doing so without attribution. All of this taken together amounts to misconduct.[23]

While these cases involved incompetent plagiarism, courts have also sanctioned lawyers for competent plagiarism, i.e., plagiarism that properly advances the client’s interest, as Professor Carter notes.[24]

A bankruptcy attorney received a public reprimand for filing an opening and reply brief that were largely copied from other sources.[25] The opening brief contained nineteen pages of analysis, but seventeen pages had been copied from an article.[26] The bankruptcy judge became suspicious because the briefs were of unusually high quality.[27] The bankruptcy court issued an order requiring the attorney to certify that he was the author of the briefs.[28] The attorney filed a response, “indicating that both briefs were his sole responsibility and that they 'relied heavily’ upon an article entitled Why Professionals Must be Interested in ‘Disinterestedness’ Under the Bankruptcy Code by William H. Schrag and Mark C. Haut.”[29] The court found that the attorney had engaged in conduct that involved dishonesty, fraud, deceit, or misrepresentation when he submitted briefs that plagiarized other sources.[30] So even plagiarism that produces unusually high-quality work may subject a lawyer to sanctions.

But let’s return to where we began. Plagiarism is taking phrases, sentences, or ideas from someone else's work and using them in one's own work without attribution.[31] Lack of attribution is the key element of plagiarism, not the taking. It is easy enough (though often tedious) to provide attribution. So, the efficiency of competent reuse, of other’s work can be preserved, and charges of plagiarism avoided, by providing proper attribution.

 

[1] PLAGIARIZE, Black's Law Dictionary (12th ed. 2024).

[2] E.g., Andrew M. Carter, The Case for Plagiarism, 9 UC Irvine L. Rev. 531, 554 (2019).

[3] Id.

[4] But attorneys have been sanctioned for plagiarizing briefs and failing to pass the savings along to the client. Columbus Bar Assoc. v. Farmer, 855 N.E.2d 462 (2006).

[5] Carter, The Case for Plagiarism, 9 UC Irvine L. Rev. at 554.

[6] Id.

[7] “It is professional misconduct for a lawyer to engage in any conduct involving dishonesty, fraud, deceit or misrepresentation.” MISCONDUCT, MRPC Rule 8.4(c).

[8] No. 24-CV-06835-NW, 2025 WL 1684893, at *2 (N.D. Cal. June 16, 2025).

[9] Id. at *2.

[10] Id.

[11] Municipality of San Juan, Puerto Rico v. Exxon Mobil Corp., No. CV 23-1608 (ADC), 2025 WL 1065101, at *1 (D.P.R. Apr. 9, 2025).

[12] Id.

[13] Id.

[14] Id. at *6.

[15] Id.

[16] Id. at *7-8.

[17] Id. At *8-9.

[18] Vallejo, 2025 WL 1684893, at *2.

[19] Id.

[20] Municipality of San Juan, Puerto Rico, 2025 WL 1065101, at *7.

[21] Id. at *8.

[22] Vallejo, 2025 WL 1684893, at *3.

[23] Municipality of San Juan, Puerto, 2025 WL 1065101, at *9–10 (internal footnotes and accompanying citations omitted).

[24] Carter, The Case for Plagiarism, 9 UC Irvine L. Rev. at 532.

[25] Iowa S. Ct. Atty. Disc. Bd. v. Cannon, 789 N.W.2d 756 (Iowa 2010)

[26] Id. at 758.

[27] Id. at 757.

[28] Id.

[29] Id. at 758.

[30] Id.

[31] PLAGIARIZE, Black's Law Dictionary (12th ed. 2024).

Your Brain (and Brief) on AI

Recently, MIT's Medial Lab released a report on how AI impacts the brains of those who use it to write. In that study, researchers monitored brain activity in participants who were asked to write SAT essays over a period of four months. One group used AI, one group used Google search, and one group just used their own brain. The results were so dramatic that the lab released their study before full peer review, because they were concerned that students were being taught to use AI in a way that could be detrimental to their development.

The study showed that those who used AI for every essay started by using it primarily for organizational or proofing tasks. As time went by, they became more dependent on it for more and more functions, until they tended to just cut-and-paste directly from the result into the document. Their brain development showed a lack of attention and low executive control. And when asked later about their essays, they had a hard time recalling what they had written about.

The group that only used their brain, however, showed development in their brain through their work. They showed heightened activity in regions of the brain associated with creativity, memory and language processing. The group that "just" used their brains also expressed more satisfaction and ownership of their work.

Perhaps most interesting, from a legal writing perspective, was the fact that those who used AI became "disassociated" from their results. They felt less assurance about what was "their" work, and less interest in re-engaging with it. Those who had used "only" their brains to generate an essay, however, could later re-engage with it using AI without a decline in brain activity relating to creativity, language, and engagement.

This study comes at a time when lawyers are making headlines for not checking their work. They are using AI to generate briefs and memos with hallucinated cases, and submitting them to courts. Perhaps the study helps us understand how this is happening - they do not have ownership of their work. Not only have they not done the actual research, but they haven't integrated the lessons from that research into their own brains in a way that helps them think critically about their writing. And since they have low confidence in their own knowledge, they are less likely to edit and check the work.

While this is an early study with a low sample, the results suggest that AI has a place in legal writing, just not at the start of the process. Traditional research tools require struggle and ownership of the results, which in turn sparks critical thinking and self-editing. Adding in AI tools after the first draft can help deepen engagement and improve the final product. But using AI as an initial tool can hinder the process.

Supreme Court Says No to Universal Injunctions, But Its Reasoning Impairs Its Own Authority

Friday, in Trump v. CASA, Inc., the Supreme Court held that federal courts lack authority to issue “universal injunctions,” orders that prohibit the government from implementing a policy nationwide rather than solely with respect to the plaintiffs before the court. Given the views expressed by the justices in the past, the result provided no surprise. Still, the scope of the decision was uncertain. The one guaranteed result of the decision is that there will be more litigation, not less, challenging presidential actions.

The Court, in an opinion written by Justice Barrett, adopted a rigid doctrinaire rationale supposedly based on historic understandings of the equitable powers exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act. It concluded that universal injunctions were not among those powers because the authority of the chancery court was limited to the parties before it. On that point, though, the dissenters disagreed and called the majority’s  conclusion an “ahistorical result,” pointing out that “bills of peace, for centuries, allowed English courts to adjudicate the rights of parties not before it, and to award remedies intended to benefit entire affected communities.”

The majority nonetheless concluded that Congress did not grant the courts authority to issue orders that do more than grant relief beyond what is necessary to vindicate the rights of the parties in any particular case, while suggesting that class actions might be available to provide broader relief. That may not prove true. Justice Alito, in a concurrence joined by Justice Thomas, warned against relaxing the tough requirements for class certifications to undo the effect of the Court’s decision, and Justice Sotomayor in dissent for herself and Justices Kagan and Jackson noted the many obstacles class actions face. Parens patriae actions by state attorney generals on behalf of all state residents were also questioned in some concurrences.

I do not seek to resolve the historical debate here, or whether class actions might provide necessary relief to unconstitutional executive action. Instead, I want to suggest a problem that could crop up given the opinion’s central reasoning: courts are limited to remedying issues for the parties before it and cannot go further than that.

Although CASA was decided in the context of district-court injunctions, during oral argument, Solicitor General Sauer was asked about the reach of a federal circuit court affirming injunctive relief. He suggested that the same limitation, covering only the parties in the case, would apply to that Court. In that case, the questioning continued, what about a decision by the Supreme Court? Sauer’s response was that the administration respects the Supreme Court, suggesting it would comply nationwide with the Court’s decision. At the same time, the response seemed to suggest that a president who does not respect the Court or, perhaps a specific decision, could insist that it decided nothing beyond the challenger who brought the case.

In fact, the Supreme Court exercises no greater power in equity than any other federal court. Section 1 of Article III of the Constitution vests the “judicial Power of the United States … in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Marbury v. Madison held that Congress could not enlarge the original jurisdiction vested by the Constitution in the Supreme Court to include writs of mandamus. Under CASA’s reasoning, then, the Supreme Court has no authority to issue nationwide or universal injunctions.

That result is consistent with tradition, even if problematic in other respects. A Supreme Court decision opinion does not protect parties who are not before the Court. If the government engages in the same unconstitutional behavior after a Supreme Court decision, no court could issue a contempt citation because no ruling existed prohibiting that misconduct when directed at a nonparty. Instead, stare decisis explains why the result in another case should be the same, at least until the early precedent is overturned. And the current executive order on birthright citizenship challenges existing precedent, the 1898 decision in United States v. Wong Kim Ark.

A good example of how Supreme Court precedent works and resistance to it occurred in Cooper v. Aaron, which held that the Little Rock School District’s refusal to give up segregated schools ignored the decision in Brown v. Board of Education. The Court, in an unusual decision signed as co-authors by all nine justices, declared that the Arkansas governor and legislature were bound by federal court orders resting on Brown that the Equal Protection Clause prohibited government from using its powers to “upset and nullify our holding in Brown” until it could be “further challenged and tested in the courts” on the pretextual excuse that implementation was difficult and took time. No judgment in Brown ordered any non-party’s compliance, but it seemed unthinkable that the ruling would apply differently anywhere else.

Now imagine a president who decides that CASA means what it says when it limits judicial equitable authority to the parties before it and that the limitation extends to the Supreme Court. Let us assume that the Supreme Court accepted certiorari to determine whether the president could abrogate birthright citizenship in a specific case and held it unconstitutional. Nonetheless, assume that the governor and legislature of a state, as in Cooper, chooses to implement the president’s now-unconstitutional policy despite the Court’s ruling and the president backs that play.

Presumably, a resident of the state would challenge the action by asserting newly announced binding precedent. Yet, there is no guarantee that such a case would be quickly and favorably decided for that plaintiff or a certified class. Inevitably, there would be a period of time, perhaps even years, in which residents of that State would suffer under a plainly unconstitutional regime. And if the same thing happened in a number of states, not just one, so that citizenship would vary from state to state, there would be an unraveling of the rule of law much more profound than the existence of universal injunctions. As Justice Jackson’s dissent in CASA expressed, the decision would amount to “complicity in the creation of a culture of disdain for [] courts, their rulings, and the law (as they interpret it) [and] surely hasten the downfall of our governing institutions, enabling our collective demise.” In doing expressing this concern, she invoked another Justice Jackson (Robert). But her words reminded me of a different sentiment the other Justice Jackson expressed, even if used in a different context: doctrinaire logic without a little practical wisdom will convert the Constitution into a suicide pact. 

Roe, Dobbs, and the Supreme Court’s Crisis of Legitimacy

Public trust in the Supreme Court has collapsed.[1]  Only 20% of Americans believe it is neutral. Among Democrats, the figure drops to 10%. For Republicans, it's just 29%.[2] Once regarded as the least political branch, the Court now finds itself at the center of America’s culture wars and constitutional crisis.

What accounts for this steep decline in confidence? While there are many contributing factors, three stand out. Together, they reveal a Court that appears increasingly driven by ideology, divided along predictable lines, and fundamentally misunderstood by the very public it is meant to serve.

1.    The Overturning of Roe v. Wade

Let’s be candid: Roe v. Wade is almost universally regarded by constitutional scholars as doctrinally flawed.[3] Even among those who support abortion rights, few defend the reasoning of the majority opinion. While well-intentioned and normatively appealing to many, Roe had little grounding in the Constitution’s text. Instead, it rested on the vague “penumbras” introduced in Griswold v. Connecticut, which allowed the Court to infer unenumerated rights from implied constitutional principles.[4]

Understanding Roe requires jurisprudential gymnastics—creative, perhaps, but ultimately constitutionally suspect. Building on Griswold, the Court relied on the doctrine of substantive due process to hold that the Fourteenth Amendment’s Due Process Clause protected a fundamental right to privacy—one that encompassed a woman’s right to terminate a pregnancy.[5] This interpretation stretched the word “liberty” far beyond its procedural guarantees and into a realm of judicially created rights. As Harvard Law Professor Laurence Tribe once remarked, “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”[6]

As Edward Lazarus, former law clerk to Justice Harry Blackmun, stated:

I believe that Roe is a jurisprudential nightmare… As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who loved Roe’s author like a grandfather.[7]

Simply put, Roe was the original sin—a prime example of legal reasoning shaped to reach a desired political result. But in Dobbs v. Jackson Women’s Health Organization, the Court committed what many see as the mortal sin: it overturned Roe after nearly fifty years of precedent, delivering an equally ideological and arguably more damaging blow to the Court’s institutional legitimacy.[8]

Writing for the majority, Justice Alito declared that Roe had no constitutional foundation and that abortion policy should be left to the democratic process.[9] In doing so, however, the principle of stare decisis—long touted as essential to judicial restraint and stability—was reduced to a doctrine of convenience rather than conviction. That the opinion was authored by Justice Alito, a long-standing critic of Roe, only deepened the perception that this was a political—not a legal—decision.

Why was Dobbs as problematic as Roe? Because both decisions suffer from the same core defect: they were driven by ideology rather than constitutional principle. In the fifty years between Roe and Dobbs, the only meaningful change was the composition of the Court. Justice Brett Kavanaugh replaced Anthony Kennedy. Amy Coney Barrett replaced Ruth Bader Ginsburg. With that shift, the Court’s center of gravity moved rightward—and so did its interpretation of rights.

The result? A right created from thin air in Roe disappeared into thin air in Dobbs. In both cases, the Court imposed its ideological will while cloaking it in the language of law. As Justice Byron White once wrote in dissent, Roe was an “exercise of raw judicial power.”[10] Ironically, so was Dobbs. The Constitution hadn’t changed. The doctrine hadn’t changed. Only the justices had.

The consequences of this shift are profound. It signals to the public that constitutional rights are not stable or enduring. Instead, they hinge on who wins elections, who nominates justices, and which ideological bloc holds sway. When the Court behaves this way, it ceases to be an institution of law and becomes an instrument of power.

Justice Kavanaugh’s concurring opinion in Dobbs only sharpened this perception. He claimed the Court was merely “returning to neutrality” on abortion.[11] But how can it be neutral to overturn a half-century-old precedent in a way that aligns perfectly with the preferences of the current majority? That’s not neutrality—it’s control.

In this sense, Roe and Dobbs are not opposites—they are mirror images. Both reflect a Court that has substituted policy preferences for constitutional reasoning. And both have inflicted lasting damage on the Court’s legitimacy in the eyes of the American people.

2.    The Consistent—and Predictable—Ideological Splits

A second reason for the Court’s declining credibility is the growing perception that it has become a super-legislature, deeply divided and ideologically entrenched. In the most consequential cases—those involving affirmative action, voting rights, religious liberty, gun control, and environmental regulation—the outcome is often known before the first oral argument is heard. It’s no longer about legal reasoning. It’s about arithmetic.

This predictability isn’t just anecdotal; it’s structural. Term after term, the six conservative justices coalesce around a textualist or originalist methodology that tends to favor deregulation, state sovereignty, and expansive religious freedoms. The three liberal justices, by contrast, tend to emphasize precedent, evolving norms, and real-world consequences—often in defense of vulnerable or marginalized communities.

When the result in a case can be forecast simply by identifying the issue, the Court loses its credibility. The public views decisions as the product of partisan alignment, not principled interpretation. Judicial philosophy begins to look like political allegiance, and the recognition—or sustainability—of constitutional rights appears more a product of luck, not law.

Worse still is the rise of the “shadow docket”—unexplained, unsigned orders that increasingly resolve significant issues without full briefing or oral argument. From pandemic restrictions to immigration policy to emergency challenges to state abortion laws, these decisions often fall along the same 6–3 fault line, reinforcing the perception that ideology trumps process.

As Justice Elena Kagan warned, “If, over time, the Court loses all connection with the public and with public sentiment, that's a dangerous thing for a democracy.”[12] And when its decisions read less like impartial adjudication and more like political declarations, that danger becomes reality.

3.    The Public’s Misperception of the Court’s Role

The third reason the Court’s credibility is eroding is subtler, but no less consequential: a widespread misunderstanding of what the Court is—and is not—supposed to do. Too many Americans view the Court as a moral tribunal, a political referee, or a guardian of their preferred outcomes. When it falls short of those expectations, the result is disappointment, anger, and erosion of trust.

But the Supreme Court is not designed to deliver popular or even just outcomes. It is not a policymaking body. It is a constitutional court, tasked with interpreting legal texts and enforcing the rule of law—even when doing so is unpopular or counter-majoritarian. Its legitimacy depends not on popularity, but on fidelity to constitutional principle and legal reasoning.

This fundamental misunderstanding is fueled by multiple sources: politicized confirmation hearings that resemble campaign rallies, media coverage that reduces complex decisions to partisan soundbites, and elected officials who frame judicial rulings as existential threats or political victories.

Even legal education has, at times, failed to instill a nuanced understanding of judicial restraint, constitutional structure, and the appropriate limits of judicial power. The result is that every controversial decision becomes a lightning rod—celebrated as righteous by one half of the country, condemned as illegitimate by the other. In such an environment, the very idea of the Court as an impartial arbiter becomes untenable.

This is not sustainable. In a functioning democracy, there must be at least one institution that commands respect not because of its outcomes, but because of its integrity. If that institution loses public confidence, the rule of law itself begins to fracture.

Conclusion

The Supreme Court was never meant to be popular. As Alexander Hamilton wrote in Federalist No. 78, the judiciary has “neither force nor will, but merely judgment.” Its power depends entirely on its legitimacy—on the belief that its decisions, even if wrong, are principled, reasoned, and above politics.

But that belief is fading. When the Court overrules precedent to reach ideological ends, when its decisions are preordained by predictable alignments, and when the public confuses constitutional adjudication with political activism, legitimacy erodes. And once lost, legitimacy is hard to regain.

The path forward will not be easy. It will require humility from the justices, honesty from political leaders, and better civic education for the public. It will require a renewed commitment to the idea that constitutional law is not simply politics by another name.

Until then, the Supreme Court will remain not just unpopular—but untrusted. And without trust, even judgment has no force.

 

[1] John Baker, Poll Reveals Supreme Court’s Approval Rating June 22, 2025), available at: Poll Reveals Supreme Court’s Approval Rating.

[2] See id.

[3] 410 U.S. 113 (1973).

[4] 381 U.S. 479 (1965).

[5] 410 U.S. 113 (1973).

[6]  Houston Christian University, The End of a Nightmare: The Supreme Court Overturns Roe v. Wade (Dec. 16, 2022), available at: The End of a Nightmare. The U.S. Supreme Court Overturns Roe v. Wade | Houston Christian University.

[7] Id.

[8] 597 U.S. 215 (2022).

[9] See id.

[10] 410 U.S. 113 (1973) (White, J., dissenting).

[11] 597 U.S. 215 (2022) (Kavanaugh, J., concurring).

[12] Debra Cassens Weiss, Kagan See Danger to Democracy if Supreme Court ‘Loses All Connection’ to Public Sentiment (July 22, 2022), available at: Kagan sees danger to democracy if Supreme Court 'loses all connection' with public sentiment.

Can a TRO be Appealed?

Litigation challenging the Trump administration’s actions often start with an application for a temporary restraining order (TRO). Usually, TROs are not subject to immediate appeal. So how are these TROs landing in an appeals court, sometimes within hours of their issuance? This past week, for example, Judge Charles Breyer of the Northern District of California held that the deployment of National Guard troops by the federal government was illegal and issued a TRO requiring that control of the troops be ceded to California’s governor by the president. Within two hours, that order was put on hold by the Ninth Circuit. As one might guess, the nature of the litigation and competing ideas about exigencies play a role in permitting immediate appeal.

The starting point is that, since the Judiciary Act of 1789, generally only final judgments can be appealed to prevent piecemeal adjudication. Still, 28 U.S.C. § 1292(a)(1) authorizes interlocutory appeals from orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” TROs, despite their affinity with injunctions, do not belong in the category of injunctions for purposes of that statute.

TROs provide short-term relief against immediate irreparable injury. They can be issued without notice to the other party and without a hearing. In federal court, Rule 65(b) governs TROs and limits their duration to 14 days, although that period can be extended by another 14 days or with consent of the party restrained. In many instances, preliminary injunctions replace them and open the door to appeal.

Because of their short duration, often expiring before an appeal can be heard, and because of the limited record available for an appellate court to review, TROs have long been thought to be inappropriate vehicles for appellate relief. Yet, the Supreme Court carved out an exception to the general rule when the granting or denial of a TRO would have a “serious, perhaps irreparable, consequence” if not subject to an immediate appeal.[1]

The federal circuits have largely adopted an approach with a narrow lane to challenge TROs. Still, TROs are viewed as more appealable if the restraint last longer, occurs after an adversary hearing, or involves a high-profile, political, or other “important” issue. The first two criteria make a TRO more like an injunction and may fit under the authority granted by § 1292(a)(1). Even though the latter criterion seems and is entirely “free-form,” the All Writs Act appears to supply the necessary authority for a court to accept the appeal. A forthcoming article in the Florida Law Review, Appealing Temporary Restraining Orders, makes the case that the general prohibition against appealing TROs is an artifact of a long repealed 19^th century statute and reflects practices that no longer hold sway. It argues that, despite the high likelihood that the TRO will become moot quickly, appellate courts should consider expediting appeals of TROs or providing emergency relief.

Whether a more formal approach to appealability is adopted, there can be little doubt that today’s TROs will likely bring about reconsideration of many of the undergirding assumptions about the device and some change. Now, as to administrative stays, which is another matter  entirely!

 

[1] See Carson v. Am. Brands, Inc., 450 U.S. 79, 86 (1981).

Citation Frustration

Ever feel like the rules for legal citation are wildly inconsistent?  You are not alone.  Nor are you imagining things. 

In a forthcoming review of the twenty-second edition of The Bluebook:  A Uniform System of Citation, M. Burke Craighead—former Editorial & Strategy Chair of the Harvard Law Review—gives a fascinating insider’s perspective on the revision process, along with an explanation for why both perceived and real inconsistencies exist.

Craighead notes that his review is not a defense of The Bluebook but more of an explanation for why inconsistencies exist and a call to examine legal education more broadly. 

He first unmasks the editorial process, revealing several reasons that inconsistencies and seemingly arbitrary rules arise.  They include:

1. Student responsibility. Craighead first notes that “[n]o other profession in the world tasks students with developing its citation style guide. Yet, the legal profession has largely offloaded this task (along with the task of publishing legal scholarship) to second- and third-year law students.”[i]  And he concludes that “[t]he consequences of placing such immense power in the hands of a few students include arbitrariness, contradiction, and hubris.”[ii]  Some of the key problems he identifies include (1) inconsistent commitments by the four cooperating schools, e.g., The Yale Law Journal abolished its Bluebook editor position in 2023; (2) inconsistent commitment by individual students tasked with editing, i.e., not all students devote the same amount of time and energy or commitment to deadlines;  (3) lack of enforcement to ensure completed work, i.e., if one journal fails to submit its edits in a timely fashion, there is little the other journals can do short of litigation; and (4) inconsistent internal policies for each participating journal, e.g., extent of authority for journals to make certain decisions.[iii]
2. Unclear purpose and politics. Craighead next notes that there are conflicting views on The Bluebook’s purpose, specifically whether it should have a social justice dimension and how its purpose may be affected by politics.[iv]  By way of example, he identifies a disagreement among the editors as to whether Palestine should be included in Table T10.3 (identifying abbreviations for various countries and regions), in light of the ongoing war in Gaza.[v]  He also notes disagreement as to whether The Bluebook’s rules are meant to be prescriptive or descriptive—an issue brought to the surface by a debate over practitioners’ increasing usage of the “cleaned up” parenthetical—a practice not previously authorized by The Bluebook[vi]

He next addresses some common suggestions for and criticisms of The Bluebook, such as the suggestion that it include fewer—but broader—rules to aid utility and the criticisms that each new edition contains either unnecessary or insufficient changes.[vii]  He notes the balancing act editors must engage in to maintain both practitioner and academic engagement with The Bluebook’s rules and avoid risking their disregard.[viii]

Craighead then ties the editorial issues with revising The Bluebook to what he identifies as issues in legal education generally.  First, he notes that, with the exception of journal members, students’ (and later practitioners’ and academics’) understanding of legal citation becomes fixed after their 1L year because they are not expected or required to revisit the rules after that, despite changes that may arise.[ix]  Next, he draws a parallel between the prescriptive-descriptive debate over citation rules and legal education, i.e., whether law schools ought to focus on how law and society should operate versus how they actually operate and black-letter legal doctrine.[x]  Finally, he notes that both The Bluebook and law schools provide necessary focal points (“mutually salient and . . . mutual best response[s]”) for the profession.  In other words, just as law schools determine which areas of law are necessary to the profession and, therefore, should be taught to students, The Bluebook determines, for example, how different font styles should reflect different source materials, all in the name of uniformity for common understanding.[xi]

Craighead concludes by noting that perceived flaws in legal citation rules are a result of flaws baked into legal education and that, if we wish to resolve the issues with The Bluebook, we must first resolve the issues in law schools.[xii]

 

[i] Craighead, Burke, The Bluebook: An Insider's Perspective, pg. 3 (May 12, 2025). Michigan Law Review, Volume 124 (forthcoming 2026), Available at SSRN: https://ssrn.com/abstract=5271305 or http://dx.doi.org/10.2139/ssrn.5271305.

[ii] Id.

[iii] Id. at 3-4.

[iv] Id. at 5.

[v] Id.

[vi] Id. at 7.  Craighead explains that Bluebook editors were divided in that some resisted adding the parenthetical to avoid the appearance of letting practitioners dictate citation rules, while others worried that failure to address it would give the appearance that The Bluebook was outdated.  Id.  In the end, the compromise was to include a rule allowing a “citation modified” parenthetical, which serves the same purpose as the “cleaned up” parenthetical.  Id.  The prescriptive-descriptive debate is also one that plagues dictionary editors.  See, e.g., merriam-webster.com, A Word on 'Descriptive' and 'Prescriptive' Defining, available at https://www.merriam-webster.com/grammar/descriptive-vs-prescriptive-defining-lexicography#:~:text=In%20addition%2C%20all%20dictionaries%20may,a%20word%20should%20be%20used (last accessed June 6, 2025).

[vii] Id. at 8, 13.

[viii] Id. at 13.

[ix] Id. at 14.

[x] Id. at 16-18.

[xi] Id. at 18-19.

[xii] Id. at 20.

The Supreme Court Rules 9–0 That Discrimination Is Discrimination

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Chief Justice John Roberts, Parents Involved in Community Schools v. Seattle School District No. 1

In Ames v. Department of Ohio Youth Services, the United States Supreme Court issued a unanimous and unequivocal ruling: Title VII of the Civil Rights Act prohibits all discrimination—period.[1] Writing for the Court, Justice Ketanji Brown Jackson affirmed that reverse discrimination is still discrimination, and that courts cannot impose heightened burdens of proof simply because the plaintiff belongs to a majority group.

Background and Procedural History

Marlean Ames served as a program administrator at the Ohio Department of Youth Services. She alleged that she was passed over for a promotion in favor of a lesbian woman and later demoted to a secretarial role, replaced by a gay man.[2] Ames brought a Title VII claim, asserting that she was subject to unlawful discrimination based on her sexual orientation (heterosexual).[3]

The district court dismissed the case, holding that Ames failed to present “background circumstances” suggesting the agency was the rare employer that discriminates against majority-group members.[4] The Sixth Circuit affirmed, requiring Ames to produce statistical or circumstantial evidence of a broader pattern of discrimination against whites—an evidentiary burden that minority plaintiffs are not required to meet.[5]

The Supreme Court’s Rejection of Majority-Only Burdens

The Supreme Court unanimously reversed. Justice Jackson’s opinion emphasized that Title VII protects individuals, not groups, and draws no distinction between majority and minority plaintiffs. Quoting the statute, she noted it is unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race.” 42 U.S.C. § 2000e–2(a)(1) (emphasis added).[6]

The Court soundly rejected the judicially created “background circumstances” rule, declaring that it imposed a discriminatory double standard.[7] As Justice Jackson stated, “[o]ur case law…makes clear that the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group.”[8]

To require members of majority groups—and only members of majority groups—to provide additional statistical or demographic proof to bring a discrimination claim “flouts this principle” and, in effect, becomes discrimination itself.[9]

This reasoning echoed the Court’s recent holding in Bostock v. Clayton County, which affirmed that Title VII’s protection applies to any individual discriminated against because of a protected trait—whether race, sex, or national origin.[10]

Equality Requires Equal Rules

The Court’s decision reaffirms a foundational principle of civil rights law: equality under the law means uniform standards for all individuals. In recent years, some hiring and promotion policies—particularly in academia and government—have appeared to disadvantage majority group members under the guise of equity or diversity initiatives. While those aims may be well-intentioned, when protected traits like race or sexual orientation become deciding factors in employment decisions, the result is still unlawful discrimination.

As the Court recognized, equality cannot exist where one group is asked to carry a heavier evidentiary burden to prove mistreatment. Title VII prohibits all race-based employment decisions—regardless of the race of the person targeted. To allow otherwise would be to erode the very fairness the statute was designed to ensure.

A Consistent and Principled Approach

Justice Jackson’s opinion is not only doctrinally sound—it is morally grounded. Equal justice requires a consistent legal standard, not one that shifts depending on the plaintiff’s race, ethnicity, or sexual orientation. The law should reflect the dignity of all persons and reject discriminatory treatment, no matter who the victim is.

As Chief Justice Roberts famously wrote in Parents Involved, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[11] The Court’s unanimous decision in Ames brings us one step closer to that ideal.

If we are serious about eradicating discrimination, we must be willing to condemn it in every form—without exception or qualification. The Constitution and civil rights laws demand no less.

 

[1] Ames v. Department of Ohio Youth Services, available at: 23-1039 Ames v. Ohio Dept. of Youth Servs. (06/05/2025).

[2] See id.

[3] See id.

[4] Id.

[5] See id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] 590 U.S. 644 (2020).

[11] 551 U.S. 701 (2007).

Justice Delayed

While the origins of the phrase “justice delayed is justice denied” is hotly contested, attributed to both ancient texts as well as William Gladstone, the sentiment is widely accepted. Still, decisions from appellate courts can sometimes seem long in gestation. Some states impose deadlines on appellate decisions. For example, in California, a court of appeals has 90 days from the submission date to render a decision. Others are entirely without even a suggestion of how quickly an appeal must be decided.

I have experienced incredibly quick decisions and unfathomably waiting periods. In one of these instances, a federal circuit court issued its decision just three weeks after oral argument. The unanimous decision reflected the consensus I believed existed among the judges after oral argument. In another case, this time in an intermediate appellate court, I waited 23 months after oral argument to receive a favorable decision. Nothing in the opinion released even hinted at what delayed the opinion, which answered what I thought was a fairly straightforward question.

Lawyers have few options when they want to remind a panel that an opinion remains under advisement because they do not want to seem critical of those who are rendering the decision. One tactic some lawyers employ is to search for a new decision, perhaps from another jurisdiction, that not only might serve as persuasive authority, but also to remind the panel that the case is still awaiting decision.

Still, the most inventive device I have ever heard about was described to me by an appellate judge. She said that after two years of awaiting a decision, one lawyer filed an electronic birthday card with the court, embarrassingly calling attention to the length of time since oral argument. It apparently worked, she said, because a decision was issued shortly thereafter. But she added she would not advise anyone to try the same thing!

Calling Balls and Strikes—or Swinging for the Fences? Rethinking the Supreme Court’s Umpire Metaphor

During his 2005 confirmation hearing, Chief Justice John Roberts famously likened judges to umpires, stating, “It’s my job to call balls and strikes, and not to pitch or bat.”[1] But does this analogy accurately reflect how the U.S. Supreme Court operates? In controversial and closely divided cases like National Federation of Independent Business v. Sebelius, where the Court upheld the Affordable Care Act by a 5-4 vote, it’s hard to escape the conclusion that judicial philosophy—and perhaps institutional concern—played a significant role.[2] In that case, Chief Justice Roberts classified the ACA’s individual mandate as a tax, enabling its survival. Was this merely an impartial call of the legal pitch—or something more strategic?

To be sure, Chief Justice Roberts is a brilliant and principled jurist, and his decision in NFIB v. Sebelius, while arguably well-intentioned, did little to dispel the perception that the Court’s decisions are often influenced by the justices’ political preferences. This perception becomes especially salient in 5-4 decisions, where the justices frequently split along ideological lines. The Court’s voting patterns between 2015 and 2019 suggest that ideology played a prominent role:

Term	Percentage of 5-4 Decisions	Percentage Decided Along Ideological Lines
October 2015	5%	100%
October 2016	10%	86%
October 2017	26%	74%
October 2018	28%	80%
October 2019	21%	94%[3]

Indeed, from 2005 to 2019, an estimated 76% of 5-4 cases were decided along ideological lines.[4] These numbers align with the public’s growing concern that the Court is behaving less like a legal institution and more like a political one. The Court’s recent decisions only reinforce this narrative.

In Dobbs v. Jackson Women’s Health Organization, the Court overturned Roe v. Wade, holding that the Constitution does not protect the right to terminate a pregnancy.[5] Justice Alito wrote the majority opinion, joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts concurred in the judgment but advocated for a narrower ruling. Liberal justices Breyer, Sotomayor, and Kagan dissented. Similarly, in Obergefell v. Hodges, the Court held by a 5-4 vote that the Constitution protects the right to same-sex marriage. Justice Kennedy authored the opinion, joined by liberal justices, while the conservative justices dissented.[6]

The ideological divide has also been evident in cases concerning presidential authority. In Trump v. United States, the Court held that presidents are immune from criminal prosecution for official acts taken while in office.[7] Chief Justice Roberts wrote the opinion, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justices Kagan, Sotomayor, and Jackson dissented. Likewise, in Trump v. Hawaii, the Court upheld the Trump Administration’s travel ban, finding it did not violate the Establishment Clause.[8] The 5-4 majority included Roberts, Kennedy, Thomas, Alito, and Gorsuch; the liberal justices dissented.

Scholars have found that the influence of ideology becomes especially pronounced when a justice's vote is pivotal.[9] Both liberal and conservative justices are susceptible to criticism that they let ideology, rather than principle, guide their decisions. In Janus v. AFSCME, for instance, the conservative majority overruled Abood v. Detroit Board of Education, holding that compelling public-sector employees to pay union fees violated the First Amendment. In her dissent, Justice Kagan accused the majority of overriding precedent simply because it disliked the earlier ruling, calling them “black-robed rulers overriding citizens' choices.”[10]

This kind of rhetoric underscores a deeper problem: Justices are increasingly seen not as neutral arbiters, but as policymakers. Of course, there are many cases where the Court rules unanimously or with cross-ideological alignment, but in high-profile social and political cases, ideological alignment often predicts the outcome.

How can this be addressed?

One potential solution is to require a six-vote supermajority for the Court to overturn precedent or resolve cases of exceptional national importance. Such a requirement would promote moderation, encourage compromise, and reduce the influence of ideology. It would also likely lead to narrower, more incremental rulings that garner broader support and legitimacy.

A supermajority rule could also enhance democratic legitimacy by preventing a single justice from determining the law of the land on contentious issues. Why should one vote decide whether the Eighth Amendment bars executing child rapists, or whether the Fourteenth Amendment protects abortion rights?

A six-vote supermajority requirement won’t solve all the Court’s challenges, but it could mitigate the most corrosive effects of ideological division and help restore public confidence in the judiciary. In an era when the Court’s legitimacy is increasingly questioned, such a reform might be not only prudent—but essential.

 

[1] CNN,   Roberts: 'My job is to call balls and strikes and not to pitch or bat' (September 12, 2005), available at: CNN.com - Roberts: 'My job is to call balls and strikes and not to pitch or bat' - Sep 12, 2005.

[2] 567 U.S. 519 (2012).

[3] See SCOTUSblog, 5-4 Cases, available at: 5-4-cases-7.20.20.pdf.

[4] See id.

[5] 597 U.S. 215 (2022).

[6] 576 U.S. 644 (2015).

[7] 603 U.S. 593 (2024).

[8] 585 U.S. 667 (2018).

[9] See Kellogg Insight, Supreme Court Justices Become Less Impartial and More Ideological When Casting the Swing Vote (Sept. 13, 2018), available at: Supreme Court Justices Become Less Impartial and More Ideological When Casting the Swing Vote.

[10]  See Vox, Elena Kagan’s dissent trashes Supreme Court as “black-robed rulers overriding citizens’ choices” (June 27, 2108), available at: Elena Kagan’s dissent trashes Supreme Court as “black-robed rulers overriding citizens’ choices” | Vox.

Judge Mary Jane Trapp, 1956-2025

It is with profound sadness that I share that Judge Mary Jane Trapp passed away unexpectedly on April 24, 2025. Judge Trapp had recently begun contributing to the blog. You can read her posts here and here

Her death is a tremendous loss to her friends, family, and the Ohio legal community. She leaves a legacy of service that few can match. It’s fitting that she had been selected to receive the Ohio State Bar Association’s John and Ginny Elam Pro Bono Award, which was awarded posthumously at the Association’s annual meeting earlier this month. You can watch the tribute to her here.

I last saw Judge Trapp the weekend before she passed. She spent the day judging The University of Akron School of Law’s 1L intramural moot court competition.

Reading Tea Leaves

            A listener could not help but be fascinated by the Supreme Court argument May 15 over nationwide injunctions considered against the backdrop of birthright citizenship. The substantive question of birthright citizenship was not presented; only the validity of nationwide injunctions issued by a single district court, but the background issue was ever-present. The practice of nationwide injunctions, courtwatchers agree, trouble a majority of the justices. At the same time, there seems to be little support for a change in birthright citizenship.

            Context matters. And that’s what makes whatever the Court does all the more interesting. On his first day in office, President Trump signed an executive order directing federal officials not to recognize U.S.-born children of those who migrated to the United States without proper documentation as Americans. Lawsuits ensued. Three district courts issued nationwide injunctions against its implementation.

            A central question during the oral argument was what should happen when the president gets the law wrong. The administration’s position is that district courts and even intermediate courts of appeal lack jurisdiction and equitable powers to issue nationwide injunctions. Instead, it claims that any injunction should be specific to the person or persons who brought the lawsuit. If another similarly situated person is about to face the same issue, that person can bring a new lawsuit and point to the earlier decision to support the case. (N.B., no one during the argument mentioned that a federal district court’s decision is not biding precedent in any other district court or even on itself in subsequent cases).

            Under that approach, Solicitor General Sauer seemed to suggest that separate lawsuits would have to be filed by every person affected or, if a result can be binding district-wide, in every judicial district, so that there would be parts of the country where the executive order challenged would be in effect and others where it would not be in effect. That approach would put a premium on getting the case to the Supreme Court, where the ruling would have nationwide effect. Sauer said the administration would honor such a decision, but also suggested that the Court’s own precedents indicate its decisions are also specific to the litigants.

            Chief Justice Roberts, using the example of the TikTok case, said that the Court can entertain cases expeditiously, but others expressed concern that any gap would irreparably harm those affected. At the same time, Justice Kagan put a practical concern on the table: if, as in this case, you are losing every time, an administration could simply not appeal and never face the Supreme Court.

            Sauer’s solution to the dilemma was to suggest a class action, nationwide in scope. If a class were certified, the district court decision could have nationwide effect, he said. At the same time, he admitted that the Justice Department would challenge any class on grounds of typicality and commonality, appearing to make his solution no solution at all.

            One day after the argument, the Supreme Court issued an opinion in the shadow docket case of A.A.R.P. v. Trump, which concerned two detainees that the administration claims are members of Tren de Aragua, the gang designated as a foreign terrorist organization by the administration. This was the Court’s second opinion in the case. The named plaintiffs represent a putative class of similarly situated detainees in the Northern District of Texas, all seeking to prevent deportation to the prison in El Salvador where others have been sent.

            In that yet-to-be-certified class action, the administration took the position that it would obey an order covering the two named plaintiffs, but not the rest of the putative class. Earlier in the case, the administration had represented that they would not deport the detainees on the day of the district court hearing, but could not commit beyond that. The Court, aware that detainees have been shuffled between judicial districts in an attempt to escape the type of localized order that is the limit of district-court authority and the claims that the administration is helpless to retrieve Abrego Garcia from that prison despite a Supreme Court order to facilitate his return, issued an unusual order: the detainees may not be deported under the Alien Enemies Act (but may remove them under other lawful authorities) must stay in the United States while the Fifth Circuit determines whether a preliminary injunction should be issued under the usual criteria and what type of notice of deportation is due for members of the putative class. And the Supreme Court ordered that its injunction against removal from the United States continue until disposition of a cert petition after the Fifth Circuit’s decision or, if cert is granted, until judgment by the Court.

            The juxtaposition of the birthright citizenship injunction question and the real-time test of the removal issue appears to send signals that the Court, inclined against nationwide injunctions, is still searching for a solution that respects the dangers an unconstitutional executive order poses for at least some people covered by it. Although all we can do now is attempt to read the tea leaves of what the A.A.R.P. decision means for the birthright citizenship case heard a day earlier, the result we see relatively soon will have far reaching implications beyond the weighty issues in these constitutional challenges for it will affect the types of class actions the Court has discouraged though not eliminated more generally and the appeals that ensue in those cases.

Can AI Help with Citations?

Like all law professors this time of year, I’m in the throes of grading and wishing there was a quick and easy way to reach the finish line.  Year after year, my colleagues and I have lamented the fact that we have not yet discovered a way to automate citation grading.  It seems like it would be easy for a computer program to do.  Citations follow detailed, strict, and largely consistent procedural rules.  But, to date, nothing like that exists. 

Yet we now have generative AI, which is capable of all kinds of neat tricks.  One of my colleagues decided to try her hand this semester at creating a customGPT to help assess citation formatting, but she was ultimately disappointed.  While the customGPT began on an upward trajectory, learning with each tweaking prompt she provided, after a bit, it began to descend, inserting new errors in after correcting old ones and then failing to consistently apply rules it had already “learned.”

It turns out that her experience was not unique.  In a new empirical study, Matthew Dahl, a JD/PhD student at Yale, tested whether large language models like GPT-4 can comply with the formal citation rules that structure legal writing. The findings are both fascinating and cautionary.

Dahl and his collaborators constructed a dataset of 866 citation tasks drawn from the Bluepages (i.e., practitioner-oriented) portion of The Bluebook and ran them through five major LLMs from OpenAI, Anthropic, Google, Meta, and DeepSeek. The results? In zero-shot testing, the models produced fully compliant citations only 69-74% of the time.  Yet, even when given the full text of the citation rules (90,000 tokens’ worth), accuracy rose to only 77%.

Citation is one of the few parts of legal practice where there is a right answer. Yet, even in this rules-based domain, LLMs underperform. They do best with common case law citations (likely because they’ve memorized them) but perform significantly worse on citations to statutes, regulations, and secondary sources.

The study also reveals that, when LLMs make citation errors, they can be significant. The LLMs occasionally confuse parties, attribute decisions to the wrong court, misstate subsequent history, and invent nonexistent citations. These are not typos—they’re substantive errors with real professional consequences.

So what are the takeaways?

Don’t delegate citation compliance to AI—yet. While LLMs are promising as drafting assistants, they remain unreliable as cite-checkers. The risk of an AI-generated error making it into a filed brief is too high.

But AI may be a useful teaching tool. Instructors can show students flawed citations generated by LLMs and ask them to diagnose and correct the mistakes. That kind of exercise reinforces both citation knowledge and professional skepticism.

For those interested in delving deeper into the study, you can access the full paper here: Matthew Dahl, Bye-Bye, Bluebook? Automating Legal Procedure with Large Language Models.

Going to Law School? Read This First.

Yesterday, I attended Georgia College and State University’s graduation ceremony and watched with pride as several former students crossed the stage. Many of them will be starting law school in just a few months, and in the conversations that followed, I found myself repeating advice I’ve given many times before.

If you're heading to law school and want to excel—not just survive—here’s what you should focus on from day one:

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1. Sharpen Your Critical Thinking

Law school isn’t about memorizing rules. It’s about applying them—often to messy, unfamiliar fact patterns that don't resemble anything you've read before. Great lawyers know how to think through complexity, identify key issues, and craft strategic solutions.

From your first week of 1L year, start practicing with hypotheticals. Ask yourself: How would I apply this rule here? What arguments might the other side make? How do I reconcile unfavorable facts or law with the result I want?

That’s lawyering in action.

---

2. Master Persuasive Writing

The most powerful lawyers aren’t the loudest in the courtroom—they’re often the clearest on the page.

Your legal writing class is not just a box to check. It’s where you’ll build the foundation of your legal voice. That voice should be:

• Clear and concise

• Structured logically and persuasively

• Honest, even when acknowledging weaknesses

• Compelling in both facts and law

Get comfortable rewriting. And rewriting again. Writing is thinking, and great writing takes time. Pay attention to detail, be ruthless about cutting fluff, and always—always—proofread.

---

3. Build Strong Research Skills

Judges care about precedent, not personal opinions. That means your legal propositions must be backed by authority—and the right kind of authority.

Learn how to:

• Identify binding vs. persuasive precedent

• Use primary and secondary sources strategically

• Find the most relevant, recent, and favorable cases

• Recognize and confront unfavorable authority before the court does

Legal research might not feel glamorous, but it’s one of the most important tools in your arsenal. The strongest arguments fall flat without solid support.

---

4. Cultivate the Intangibles

Here’s the truth: technical skills will get you in the door, but intangibles are what make you a respected professional—and a good person.

I’m talking about:

• Taking feedback with grace and using it to grow

• Listening before speaking

• Owning your mistakes without excuses

• Staying calm under pressure

• Working well with all kinds of people

• Acting with integrity, even when it’s hard

• Being reliable, humble, and kind

No one wants to work with a know-it-all or a finger-pointer. Professionalism matters. So does character. And both will open doors long after your GPA stops being relevant.

---

5. Relax with the Politics

Please don’t spend your time in law school focused on advancing your political beliefs, protesting the social issue of the day, or vilifying those who think differently than you. Most conservatives and liberals are good people. Most individuals who are pro-choice—or pro-life—are good people. Every justice on the United States Supreme Court, regardless of whether you agree with their decisions, is an incredibly accomplished jurist and exemplary citizen. And yes, most people who voted for Donald Trump or Kamala Harris are good people.

People have different perspectives. That doesn’t mean they’re bad human beings—it means they’ve had different experiences, upbringings, and legal influences. That diversity of thought is not something to fear—it’s something to learn from.

So instead of going to law school entrenched in your political identity, go with a willingness to listen, engage, and reflect. Challenge—don’t just champion—your own beliefs. Law school is where you learn how to argue both sides, communicate persuasively, and think critically across ideological lines. Focus on mastering those skills. And maybe even lean into moderation over extremism—into compromise over division.

---

Final Thoughts

Being a great lawyer isn’t about having a photographic memory or graduating from a top-tier school. It’s about how you think, how you write, how you research—and who you are when no one’s watching.

Law school will challenge you. That’s part of the process. But if you focus on developing these core skills and carrying yourself with integrity, you’ll be more than ready—not just to succeed in law, but to lead with purpose.

You’ve already earned your place. Now, do the work that makes it count.

Is a Raid on the Wrong House Defensible Before the Supreme Court?

Last week, the Supreme Court heard argument in Martin v. United States, No. 24-362, a case that concerned whether the Federal Tort Claims Act provides a remedy in a case where the FBI raided the wrong home. In the pre-dawn hours of October 18, 2017, a masked FBI SWAT team smashed open the door at 3756 Denville Trace, detonated a flashbang grenade, and stormed into the home. Guns drawn, they handcuffed the man they found while keeping the gun drawn on the woman, who was screaming to protect her seven-year-old son hiding under the covers in his bedroom. During questioning, the handcuffed male revealed that he lived at that Denville Trace address. The FBI went silent, realizing that they had raided the wrong home on the wrong street in search of a gang member. The upscale home with the well-manicured lawn had not clued them in that this might not be the house they were looking for.

The household members were left dazed as the FBI left but promised to be back. They completed the raid on the correct house, returned and apologized after documenting the damage they caused. Their excuse for their mistake: a personal GPS device used to locate their quarry had directed the leader to the wrong location.

The facts recalled for me the somewhat similar facts that in the case that became Mapp v. Ohio, 367 U.S. 643 (1961), the landmark search and seizure decision. There, too, law enforcement officers raided a home on the wrong street – that time in search of a bombing suspect. They had no search warrant. Rather than withdraw once their error became clear, the police conducted a search until they found something they could use to charge the resident, Dollree Mapp, with a crime. In the basement, police found racy books and drawings that Ms. Mapp said belonged to a prior boarder. They charged her with possession of obscene materials. A conviction resulted in a sentence of seven years. Ms. Mapp appealed, defending the materials on First Amendment grounds. When the case emerged from the Supreme Court, however, the Court eschewed the free-speech issue and held that the Fourth Amendment prohibited warrantless searches and declared the materials obtained inadmissible, applying the exclusionary rule to the States.

The current case is unlikely to result in a leading precedent, though. The government has defended, arguing that the error does not fall within the Federal Tort Claims Act’s waiver of sovereign immunity under the discretionary-function doctrine. At oral argument, a Justice Department lawyer dubbed the FBI’s error a “reasonable mistake” and denied that a 1974 FTCA amendment that addressed raids on the wrong house did not apply, prompting Justice Sotomayor to characterize that defense as “ridiculous.” Justice Gorsuch chimed in, “How about making sure you’re on the right street? Checking a street sign—is that asking too much?”

However sympathetic these facts appear, it is important to remember that both the district court and the Eleventh Circuit ruled in favor of the government. The Eleventh Circuit held that the plaintiffs’ claims for negligence, trespass, and infliction of emotional distress did not fall within the exception that applied to assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution at the hands of law enforcement. Instead, it viewed the case through the discretionary-function lens, which finds no liability where the government actor must exercise judgment, even if that judgment turns out to be wrong.

I flag the case, and the echoes it has from Mapp, for readers to view when the decision comes down – and what it says, strategically, about playing to heartstrings versus technical requirements of a law when you reach the more free-form nature of briefing and argument that is often tolerated in the Supreme Court.

Transforming Entitled, Narcissistic, and Immature Law Students into Lawyers

Every professor dreads them: the entitled, narcissistic, and immature law students who treat legal education like a customer service complaint line. They’re easy to spot, often uttering statements like:

• "I'm so upset that I got a B and need an A or I'll lose my scholarship. Please, I'll do anything."
• "Hey, can't make it to class today. Been under a lot of stress and need to practice self-care."
• "I need an extension on my paper. I've been busy at work and binge-watching The Sopranos."
• "I wasn't in class today. When can I come to your office to get the notes?"
• "I need more time to prepare for my oral argument. My grandfather died." (He actually passed away ten years ago.)
• "I know I haven't completed any assignments, but what can I do to get a good grade?"

Unfortunately, these students have little to no sense of accountability and will not hesitate to "complain" to the dean, provost, or university president, often fabricating grievances that turn them into victims and you into the culprit. If you’re lucky, you might even receive an angry call from their parents — the same ones who spent a lifetime shielding them from consequences.

As educators, we strive to make a meaningful impact on every student’s life. However, some students make that mission nearly impossible and, in worst-case scenarios, can threaten our careers with false allegations that weak administrations sometimes believe.

Regardless, we have to try — or at least hope — that we can motivate these young people to evolve into productive lawyers and citizens. Below are some strategies to maximize the chances of reaching the seemingly unreachable while preserving your physical and mental health.

1.    Spell Everything Out in the Syllabus

The syllabus is often the entitled student's best weapon — but only when it's vague or ambiguous. Once they’re caught violating a policy (plagiarism, excessive absences, cheating), they'll comb through your syllabus searching for any loophole.

Imagine you have a policy stating: "It is prohibited to knowingly copy text or material created by third parties as your original work."

One student, from the helicopter school of parenting, copies Justice Scalia's entire dissent in Obergefell v. Hodges for a paper titled "Why I Think Obergefell Was Wrong."

After informing them of the violation, they predictably cry and plead. Then they craft a letter to the dean:

Dear Dean,

My professor falsely accused me of plagiarizing. I work really hard and came here for support, not to be labeled a cheat. Although my paper included a section that copied Justice Scalia's dissent, it was an accident. My computer did something crazy, and I didn’t notice. So I didn’t violate the policy and deserve an A.

Sincerely, Narcissistic Student

If you have a strong dean, you prevail. If you have a weak one, you could lose. If your dean avoids decisions altogether, you might face a months-long "investigation" where common sense is sacrificed for "neutrality."

Avoid this nightmare. Spell out your policies with extraordinary clarity. Define plagiarism explicitly. Specify consequences. Review these policies on the first day of class, and have students sign a document acknowledging them. Do the work upfront to spare yourself later.

2.    Set the Tone on Day One

In your first class, establish expectations firmly and unapologetically. You can be empathetic without being a pushover. Consider this introduction:

Welcome, everyone. I look forward to an engaging semester applying criminal law to contemporary cases. Before we begin, here are some non-negotiable ground rules:

• Only two unexcused absences permitted. Additional absences result in a one-letter grade reduction. Period.
• No deadline extensions except for a family death or life-threatening illness. Period.
• Violate the plagiarism policy, and you fail the course. Period.
• Grades are changed only for mathematical errors. Period.
• Disrespect anyone, and you will be removed from the course. Period.

Contrast this with the "crusader" professor who says:

Hello everyone! I’m thrilled to embark on a transformative journey with you. Today, we'll collaboratively develop expectations for this course and accommodate each other’s needs throughout the semester.

When narcissistic students hear this nonsense, they whisper, "We don’t need to do anything, and if we act like victims, we get an A."

Toughness isn't cruelty; it's care. Students remember and respect tough teachers more than coddling ones. Toughness transforms.

3.    Develop Relationships with Your Students

Toughness doesn't mean detachment. Humanize yourself. Share your experiences, your struggles, and the lessons you've learned. Take students to lunch. Show genuine interest in their lives. When students feel seen and respected, they are more likely to rise to expectations. Connection fosters accountability.

4.    Remember: Where Students Are Now Is Not Where They Will End Up

Yes, narcissistic behavior is frustrating. But remember: many of your best future alumni were once immature and self-centered. Growth takes time. Focus on small but meaningful improvements. Build habits. Inspire change through consistent, respectful accountability. You might not witness the transformation immediately, but the seeds you plant now often bear fruit later.

5.    Emphasize the Process, Not the Outcome

Too many students obsess over outcomes: the 4.0 GPA, the federal clerkship, the Big Law job. But true success comes from embracing the process — making the right choices every day without obsessing over the final destination.

Teach students that excellence stems from daily discipline, resilience in failure, and focus on controllable actions. The journey itself holds the meaning and the reward.

Teaching entitled, narcissistic, and immature students can be one of the greatest challenges — and greatest opportunities — in legal education. By setting clear expectations, building genuine relationships, and emphasizing process over outcomes, we can help guide even the most difficult students toward the transformative potential of a life in the law.

"Appellate Briefs-One Judge's View of the Good, the Bad, and the Ugly-Part Two"

Last month’s post examined the “pet peeves” most frequently cited by my colleagues, mentors, and judicial attorney staff. I promised to provide positive tips in the second installment of “Appellate Briefs-One Judge’s View of the Good, the Bad, and the Ugly.”  Some are universal; some are more controversial. Some are designed to make your writing more memorable and persuasive; some are designed to assist those who learn differently. All are designed to put your case in its best light.

Now for Part Two-The Tips:

1. Argue the “deep issue.” Ohio’s Ninth Appellate District sets out an excellent description of the “deep issue” in its Local Rules, Appendix B, citing Bryan Gardner’s Elements of Legal Style. ^[i] In summary, the “Statement of Issues Presented” should be in three sentences. The first sentence should be the legal premise. The second should be the facts demonstrating why the legal premise is applicable in this case, and the third sentence should close with a question that does not begin with the word “whether.” Here is an example.

 “The excited utterance exception allows a declarant’s statement to be admitted if it is made under the stress of a startling event. Officer Johnson testified that he talked to Smith 30 minutes after Smith had made a 911 call reporting that he had been assaulted. Smith told Officer Johnson, ‘Bob hit me with a baseball bat.’ Was Officer Johnson’s testimony repeating what Smith told him admissible as an excited utterance?” Your brief will then support the answer you want the judge to give.

2. Avoid dramatic words such as “clearly”, “patently”, “obviously”- they signal your weakest points.
3. Do not use exclamation points.

1. Proof, proof, proof. I admit to being a terrible proofreader of my own writing. If you do not have help, I find reading the copy out loud helps because you slow down and your brain will catch errors.
2. Use shorter sentences, avoid unnecessary adjectives and adverbs, and edit-

preferably have someone else edit as well.

1. Try to avoid “wordy” phrases. For example, change “a number of” to “many.” Here is a list of substitutes: https://www.dailywritingtips.com/50-plain-language-substitutions-for-wordy-phrases/
2. Tell your story because the facts may just win the case for you but choose your facts wisely and carefully place your “bad” facts amid a longer sentence.
3. Tell your story using the people in your case and choose words that create a picture- “tears” rather than “sad.”
4. Avoid using “plaintiff”, “defendant”, “appellant”, “appellee” or acronyms that are not obvious-use the parties’ names.
5. Provide the reader with a “road map”- Tell the reader what they are about to read and why it will be important.
6. Use headings and sub-topic headings to guide your reader through the different levels of information and argument and to show relationships. This is particularly helpful to the screen reader.

In my first installment, I encouraged you to read “Legal Writing for the Rewired Brain” by Robert Dubose.^[ii]  Brief writing needs to evolve since more judges are reading on screens rather than paper.

Screen readers are more likely to do four things: one, look for headings and summaries; two, read the first paragraph of the text more thoroughly than the balance; third, read the first paragraph of the text more thoroughly than the balance; and forth, look for “structural clues” down the left side of the page (think-website site design, with a list on the right side of the page.

Here are visual examples:

The first is a Statement of the Case section of an appellate brief, which recognizes readers want information quickly and might scan.

The second example uses headings and incorpoates graphics where appropriate to help the reader understand and to break up the text.

The third helps those who are “visual learners.” Here a critical document is scanned into the brief. This also works well for diagrams of a product or a site map.

1. Think about when to use an active v. passive voice - “Jane threw the ball” vs. “The ball was thrown by Jane.”
2. In civil tort cases, active is good for the plaintiff and passive is good for the defense. For example, “Jane Smith was hurled into the air when Mr. Smith hit her in the intersection” v. “the pedestrian was struck in the intersection.”
3. Passive voice in criminal cases will help put some distance between the actor and the act. For example, “The gun was fired” v. “Smith fired the gun.”

Brief writing is a process of forming separate arguments, creating an outline of the substantive and procedural facts and the law for each argument, drafting and then then refining each section to evaluate what works and what cannot be supported, and then editing until polished (and in compliance with local rules of court).

D.C. Circuit Judge E. Barrett Prettyman said, “The Lawyer’s greatest weapon is clarity, and its whetstone is succinctness,” but Justice Ruth Bader Ginsburg phrased it even better- “Get it right and keep it tight.”

 

[i] http://www.ninth.courts.state.oh.us/Rules/2022%20Local%20Rules.pdf

[ii] Legal-Writing-for-the-Rewired-Brain.pdf

Conquering Courtroom Anxiety: A Guide for Legal Advocates

Anxiety is a common experience for attorneys. Whether you're preparing for an oral argument, conducting a deposition, or leading a trial, the pressure can be intense—and the fear of underperforming can be debilitating. But anxiety doesn’t have to define your advocacy. With the right strategies, you can manage anxiety effectively and deliver your best performance when it matters most. Here are ten practical ways to do just that:

1.    Prepare Until You Can’t Get It Wrong

Confidence starts with preparation. Know the record cold. Master the relevant law. Identify the weaknesses in your argument—and prepare persuasive responses. Anticipate unfavorable facts and case law and be ready to explain why they don’t change the outcome you seek.

Most importantly, practice—not until you get it right, but until you can’t get it wrong. Rehearse in front of different people. Seek out diverse perspectives and tough questions. Preparation transforms fear into focus.

2.    Reframe Your Thoughts

Anxiety isn’t an uncontrollable condition—it’s often the product of self-defeating beliefs. You can choose a different mindset. Reject negative inner dialogue and replace it with constructive, empowering thoughts. This isn’t just motivational fluff—it’s rooted in science. Through neuroplasticity, the brain can rewire itself in response to intentional changes in thinking.

Start telling yourself a better story—one rooted in capability, not fear.

3.    Focus on Your Client, Not Yourself

Anxiety thrives when we become self-focused—when we obsess over how we’ll be perceived or whether we’ll make a mistake. But advocacy isn’t about you. It’s about achieving justice for your client.

Whether you’re in small claims court or the United States Supreme Court, remind yourself: your duty is to your client and the cause of justice. When you shift your attention away from yourself and toward the purpose of your work, anxiety loses its grip.

4.    Let Go of External Validation

Much anxiety stems from the fear of embarrassment—of being judged as incompetent, unprepared, or unintelligent. This fear arises when your self-worth depends on how others perceive you.

Break that dependency. True confidence comes from within—not from verdicts, praise, or titles. Stop giving other people the power to define your value. Cultivate self-esteem through your character, your relationships, and your integrity—not through applause.

5.    Control the Narrative

Perception is powerful—and you are in control of it. Others can’t read your thoughts. They can’t feel your anxiety. They only know what you let them see.

Choose to present as composed, capable, and confident, even if your stomach is in knots. This isn’t deception—it’s leadership. When you take charge of how you show up, you reshape how others perceive you, and how you perceive yourself.

6.    Slow Everything Down

Anxiety accelerates everything: your thoughts race, your speech speeds up, and your body feels overwhelmed. Interrupt the cycle by slowing down.

Breathe deeply. Pause before responding. Be comfortable with silence. Slow speech and measured thinking project confidence and allow your mind to catch up with your mouth. Clarity thrives in calm.

7.    Keep It in Perspective

When we’re anxious, we inflate the importance of the moment. Yes, a poor performance can sting. You may lose a case. You may not get the job, the promotion, or the win.

But life goes on. The world doesn’t stop. What matters most—family, relationships, your health, your integrity—endures beyond any courtroom or client. Don’t lose sight of that.

When you stop treating every challenge like a crisis, anxiety no longer controls you.

8.    Acknowledge and Address the Anxiety

Strong people face their struggles. If anxiety is persistent or severe, don’t pretend it isn’t there—get help. Therapy, medication, mindfulness practices, and cognitive behavioral techniques can all make a meaningful difference.

You are not weak for needing support. You are wise to seek it. Owning your challenges is the first step toward overcoming them.

9.    Live With Purpose

Ask yourself: how do I want to be remembered?

Chances are, you won’t care whether people saw you as powerful or perfect. You’ll care whether you made a difference. Whether you lived with kindness, courage, and authenticity.

When your choices are rooted in meaning, anxiety fades. You’re not chasing approval—you’re living your truth.

10.    Stop Taking Yourself So Seriously

None of us are as important as we think. And that’s liberating. You don’t have to be perfect. You just have to show up, do your best, and try to grow a little each day.

Let go of the need to be flawless. Laugh at your mistakes. Embrace imperfection. Don’t give anxiety the power to steal your joy. Give yourself the power to live fully.

Final Thoughts

Anxiety may be a familiar companion in the legal profession—but it doesn’t have to run the show. With preparation, perspective, and a deep connection to purpose, you can turn anxiety into clarity, humility, and strength. And when you do, you’ll not only become a better advocate—you’ll become a better version of yourself.

Appeals Are Not a Game of 20 Questions

In the past week,  I was part of a conversation in which colleagues were discussing potential responses to the opening brief expected from the appellant in a case in Colorado. If this case were in federal court, the notice of appeal would be filed in the district court that rendered the final judgment and say nothing about the case or the nature of the appeal.

In Colorado, the notice is filed in the court of appeals within 49 days after final judgment, includes a description of the case and an “advisory listing of issues.” The list serves to inform the court and other parties in order to focus attention on the anticipated subjects of the appeal. The use of the word “advisory” would strongly suggest that it is neither binding nor constricting. In fact, it appears that traditional boilerplate language in the notice “reserves the right to raise other issues.”

Yet, that does not always seem to be the case. In a 1995 decision, the Colorado Supreme Court discussed a notice of appeal that raised only two issues of three heavily contested issues. The missing issue on the notice involved exhaustion of remedies. In rebuking the court of appeals for reversing the judgment below on the exhaustion argument, the Supreme Court held that the issue was not “preserved for review” and had no choice but to reverse the decision.[1]

That ruling would seem to suggest that a kitchen sink approach to the advisory listing is necessary. Yet, ten months later, the court of appeals went back to that well and held that issues were nonetheless preserved for appeal without having been included in the notice of appeal.[2] The prevailing party invoked the Supreme Court’s decision from earlier in the year, but the court of appeals was “unpersuaded” that the Supreme Court made a full listing mandatory. It focused on the fact that the rule requiring the list’s inclusion in the notice labeled it “advisory,” that a three-year-old court of appeals precedent that did not make a full list mandatory had not been disavowed, and invoked a distinction based on its belief that the Supreme Court decision was based on a failure to raise the issue in the trial court.[3] Moreover, the Supreme Court denied review of that decision.

The upshot of this seemingly convoluted approach to notices of appeal is that the appellant in the case I discussed with colleagues listed 20 issues for review and invoked the court of appeals decision that allowed additional issues to be raised.

Regardless of the wisdom of a rule that opens the door to a long list of potential issues that can be either abandoned or enhanced, which seems to serve little purpose, asserting more than two or three issues makes little sense as a matter of appellate advocacy. A lengthier catalog of grievances suggests that the trial judge got nearly everything wrong, a view that courts will have difficulty crediting. Justice Robert Jackson, who was so impressive as Solicitor General that some justices thought he should have had the job for life, explained that the “mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases.”[4]

Moreover, it is plainly a throwaway. Given word count limits, going forward with that list would seem to limit each argument to little more than a paragraph, hardly enough space to develop your case for reversal. Weaker arguments will undermine the force of stronger ones. Most courts view a failure to develop an argument much beyond listing it to be waiver of the issue. Finally, a long list suggests, at least at the notice stage (particularly after having seven weeks to consider it) that you still have no idea what grounds might constitute reversible error – and that dilutes your credibility as an appellate advocate.

 

[1] Vikman v. Int’l Bhd. of Elec. Workers, Loc. Union No. 1269, 889 P.2d 646, 659 (Colo. 1995).

[2] Giampapa v. Am. Fam. Mut. Ins. Co., 919 P.2d 838, 840 (Colo. App. 1995), disapproved on other grounds in later appeal, 64 P.3d 230 (Colo. 2003).

[3] Id. at 841.

[4] Robert H. Jackson, Advocacy Before the United States Supreme Court, 37 Cornell L.Q. 1, 5 (1951).

Nontraditional Approaches to Judicial Opinions

Recently, there have been a few stories in the news about nontraditional approaches to expressing judicial opinions.  For example, Judge Lawrence VanDyke of the Ninth Circuit Court of Appeals issued a video dissent via YouTube in the case of Duncan et al. v. Bonta, No. 23-55805.[i]  The Arizona Supreme Court created a pair of AI-generated avatars “to keep the public informed about court-related news, information, and activities.”[ii]  And judges in both the United Kingdom and the United States have openly discussed the potential uses of generative AI in both case analysis and opinion drafting.[iii]  While innovation is generally a good thing (e.g., it’s hard to imagine using actual books for legal research or typewriters for legal drafting anymore), should we embrace these new approaches to judicial opinions?

To answer that question, we must first identify the components and value of a traditional judicial opinion.  A traditional judicial opinion is a written text drafted by one or more human authors employed by the judiciary upon review of written (and sometimes oral) arguments presented by the parties and any amici.  It typically identifies the factual context of the case, the claims presented for review, and the applicable standards of review before analyzing the claims under the governing law.  It is then memorialized in published reporters and/or court records for future reference.

Taking the nontraditional approaches out of order, using generative AI to further assist the drafting process seems, more or less, like simply adding a third person into the mix (akin to an additional law clerk or administrative assistant), and, in my opinion, seems like a good use of the technology to improve efficiency.  But using it in the analysis process feels less comfortable because an AI platform was neither elected nor appointed (nor hired by someone who was) to analyze and evaluate claims presented to the judicial branch of government.  And, while we know that its responses to prompts are based primarily on probability-based algorithms, we don’t fully understand its “decision-making process.”  Therefore, unlike with humans, we cannot discern all factors affecting its “decision,” including baked-in bias and lack of human experience.  On the other hand, there is a vetting process for all human members of the judicial branch, whether it be through voting, nomination and consent for appointment, or the interviewing and hiring process.  And, in that process, we can learn about those people’s backgrounds to discern how they might approach legal analysis.  But AI does not undergo that kind of rigor.  And there is currently no method by which it could.  In that sense, using AI for analysis is akin to a judge asking a random stranger for input on how to decide a case.

But what about using AI avatars to help the public understand a decision?  Judicial transparency is generally desirable to ensure public faith and trust, and the Arizona Supreme Court’s purpose in using their new avatars is “to help[] the public understand Arizona’s judiciary and the administration of justice.”[iv]  But is that what the AI avatars accomplish? 

According to the Arizona Supreme Court, the avatars, Victoria and Daniel, appear as newscasters “specializ[ing] in delivering clear, accessible explanations of case decisions and opinions.”[v]  In Victoria’s introduction video, she notes that her purpose is to “bridge the gap between complex legal proceedings and the public’s understanding of them.”[vi] While providing written case summaries and press releases is not new for courts, presenting them as live or recorded newscasts is.  One reason the court gave for the new format was to “meet the public where they are,” noting that, “[i]n today’s fast-paced digital world, people turn to short videos for news and updates.”[vii]

Doing so, however, discourages the public from actually reading the court’s opinion and engaging in critical thinking in favor of passive consumption of filtered summaries.[viii]  While written summaries also allow the public to avoid reading the entire decision, they still require the public to read, and that matters.  “The collective research shows that digital media have common features and user practices that can constrain learning. These include diminished concentration, an entertainment mindset, a propensity to multitask, lack of a fixed physical reference point, reduced use of annotation and less frequent reviewing of what has been read, heard or viewed.”[ix]  Reading content, on the other hand, results in greater recall and understanding than listening to identical material.[x]  And, for judicial opinions specifically, “[t]he meaning of a judgment often depends on its accompanying opinion (e.g., ‘The case is remanded for proceedings consistent with this opinion’), and a precedential rule—the proverbial ‘holding’ of a court—derives much, if not all, of its content from its surrounding justif[i]cation.”[xi]  There is a reason we don’t cite to summaries or the syllabus of a court opinion.

And about that video dissent on YouTube . . .

If you’re unfamiliar with Judge VanDyke’s dissent in Duncan et al. v. Bonta, No. 23-55805, he incorporated into his written dissent an 18-minute video he created and posted on YouTube, explaining how certain firearms work to hammer home his point that his colleagues on the bench erred in their majority decision based on a fundamental misunderstanding of firearms operation.[xii]  Setting aside the legal and ethical implications of this particular dissent,[xiii] is there any value in issuing opinions by video rather than written text?  Is there any harm?

In Judge Marsha Berzon’s concurrence in Duncan, she argued that video-based decisions have no place in our legal system because “we ground our jurisprudence in written precedent.”[xiv] And, she noted, “we do so for good reason: Written opinions promote uniformity, predictability, accountability, and care.”[xv]   While recognizing that technological advances make the preservation of oral opinions (as were given long ago) easier to preserve and distribute, she argued that “written opinions are more clear, useful, and accessible, and there are many potential challenges with video dispositions,” such as retention for later access, access for those without internet or digital devices, and the role—if any—transcripts of videos would play in subsequent analysis.[xvi]

On the flip side, as Judge Berzon noted, American judicial decisions were not required to be written until the late eighteenth century; before that, they were orally provided and preserved in only the notes of diligent counsel.[xvii]  Even today, justices in the United States Supreme Court occasionally deliver their dissents orally by reading the opinions aloud for added emphasis.[xviii]  But the written documents themselves are important and valuable.  They have proven their worth through their ability to be retained, accessed, and distributed, ensuring our precedential system of law endures.

In short, while technological advances allow for changes to the creation and dissemination of the traditional judicial opinion, the written word rooted in human analysis remains the best medium for the genre if we wish to preserve a culture that values critical thinking, predictability, and human experience.

 

[i] Kerry Breen, Judge releases video of himself disassembling guns in chambers in dissent against court ruling, CBS News, available at: https://www.cbsnews.com/news/judge-lawrence-vandyke-california-guns-video/ (last accessed April 7, 2025).

[ii] Arizona Supreme Court News Release, Arizona Supreme Court Introduces AI-Generated Court News Reporters to Enhance Public Engagement (Mar. 11, 2025), available at: https://www.azcourts.gov/Portals/201/News%20Release%20-%20Arizona%20Supreme%20Court%20Introduces%20AI-Generated%20Court%20News%20Reporters.pdf (last accessed April 7, 2025).

[iii] Jane Dalton, Judge admits using ‘jolly useful’ ChatGPT to write court ruling, The Independent (Sept. 15, 2023), available at: https://www.independent.co.uk/news/uk/home-news/chatgpt-ai-judge-chatbot-ruling-b2412378.html; Jayne T. Woods, On Using ChatGPT for Statutory Interpretation, Appellate Advocacy Blog (June 11, 2024), available at: https://lawprofessors.typepad.com/appellate_advocacy/2024/06/on-using-chatgpt-for-statutory-interpretation.html (last accessed April 7, 2025).

[iv] See News Release, supra, note ii.

[v] Id.

[vi]AZCourts, Victoria’s Introduction Video, Arizona Supreme Court AI Reporter, YouTube (Mar. 11, 2025),https://www.youtube.com/watch?v=jSSo4ScFzzU&list=PL5tiXCOtd9v7WfA0aJxo65dnlyEwJ7w6t&index=2

[vii] See New Release, supra, note ii.

[viii] Tonya Mosley, How social media algorithms 'flatten' our culture by making decisions for us, NPR Interview with Kyle Chayka (Jan. 17, 2024), available at: https://www.npr.org/2024/01/17/1224955473/social-media-algorithm-filterworld (last accessed April 7, 2025).

[ix] Naomi S. Baron, Why we remember more by reading – especially print – than from audio or video, The Conversation (May 3, 2021), available at: https://theconversation.com/why-we-remember-more-by-reading-especially-print-than-from-audio-or-video-159522 (last accessed April 7, 2025).

[x] Id.  See also Will Thalheimer, Debunk This: People Remember 10 Percent of What They Read, ATD Blog (Mar. 12, 2015), available at: https://www.td.org/content/atd-blog/debunk-this-people-remember-10-percent-of-what-they-read (last accessed April 7, 2025) (noting that the famed Cone of Experience from Edgar Dale suggesting that we retain 10% of what we read, 20% of what we hear, 30% of what we see, etc., is itself misinformation).

[xi] Richard M. Re, Artificial Authorship and Judicial Opinions, 92 Geo. Wash. L. Rev. 1558, 1562 (Dec. 2024), available at:  https://www.gwlr.org/wp-content/uploads/2024/12/92-Geo.-Wash.-L.-Rev.-1558.pdf (last accessed April 7, 2025).

[xii] Breen, supra, note i. A link to the video was embedded within a written dissent.  Duncan v. Bonta, No. 23-55805, 2025 WL 867583, at *49 (9th Cir. Mar. 20, 2025) (VanDyke, J., dissenting).

[xiii] In a concurring opinion, Judge Marsha Berzon criticized Judge VanDyke’s video for both relying on facts outside the record and making himself “an expert witness in th[e] case, providing a factual presentation with the express aim of convincing the readers of his view of the facts without complying with any of the procedural safeguards that usually apply to experts and their testimony, while simultaneously serving on the panel deciding the case.”  Id. at *23 (Berzon, J., concurring).

[xiv] Id. at *24.

[xv] Id.

[xvi] Id.

[xvii] Id.; see also Erwin C. Surrency, Law Reports in the United States, 25 Am. J. Legal Hist. 48, 55 (1981).

[xviii] Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Dissenting from the bench, SCOTUSblog (Jul. 2, 2013, 10:34 AM), https://www.scotusblog.com/2013/07/scotus-for-law-students-sponsored-by-bloomberg-law-dissenting-from-the-bench/ (last accessed April 7, 2025).

The Journal of Appellate Practice and Process: Volume 25, Issue 1

The Journal of Appellate Practice and Process is a must-read for appellate advocates and judges. The latest issue is no exception. It begins with an article by Professor Michael J. Hasday titled Accuracy and the Robot Judge. This article explores whether it can be shown that robot judges are more accurate than human judges. The next article, Judging Class Certification as a Matter of Law, by Attorney Brian Sutherland suggests that courts should review class certification decisions as questions of law rather than as matters of discretion. In Driving Efficiency and Public Confidence: Integrating Quality Management Practices in the Federal Appellate Court System, Jarrett B. Perlow, the Circuit Executive and Clerk of Courts for the Federal Circuit, shares data on federal court performance and quality measures. Professor Colleen Garrity Settineri's article In Conclusion, . . . " Are We Missing an Opportunity to Persuade? shares the first taxonomy of possibilities for the conclusion section of a brief. The issue concludes with two book reviews. The first,  The Case for a Casebook on Legal Writing: A Review of The Case for Effective Legal Writing, written by Justice Gerald Lebovits, reviews the first casebook on legal writing, The Case for Effective Legal Writing, by Professors Diana Simon and Mark Cooney. And Professor Sylvia J. Lett gives us Book Review: Reading the Constitution: Why I Chose Pragmatism, Not Textualism, a review of Justice Stephen Breyer's latest book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism.