← Advisory Opinions
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- [00:01]
A
You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, That's David French. We've got cert grants. David, David, I think I'm going to surprise you with one. I think you're going to like it. I think you're going to be into it. I think you're going to be intrigued by it. We'll see. We also have internal memos from the staff secretary to the Chief of Staff at the White House on the suspension of habeas corpus and invoking the Insurrection Act, Heisenberg Uncertainty Principle. All of you engineers, chemists, and who write me angry emails about how I don't know what that means. You're not going to like this podcast and AI's legal fail rate, are we? There an 11th Circuit case on incumbent protection. And finally, we revisit the accommodations conversation, but this time with data. Thanks, listeners. And David, I'll just tell you that I held a birthday party for a whole bunch of six year olds and I think you would have really enjoyed this. There was a 50 foot Star wars bounce house obstacle course.
- [01:26]
B
You had me at Star Wars. I mean, that's amazing.
- [01:31]
A
And the cake, David, the cake had a Darth Vader mask on it and it said Darth Nader. This is a super homemade cake, y'. All. So, like, it's not the fanciest looking thing, but yeah, I wrote Darth Nader on the cake. I was pretty proud of of myself.
- [01:48]
B
Well, as somebody who has engaged in lightsaber combat with Nate, I can attest to his considerable skills. And if he's tapping into the dark side of the force, he may now possess power that we cannot possibly imagine.
- [02:01]
A
It's funny you mention that because he asked when the next time you're coming is because he wants a rematch. This is true. He said. You know he calls you Steve.
- [02:10]
B
I know. Great Grandpa Steve.
- [02:12]
A
He said, when's Great Grandpa Steve coming back? Your friend. And David, of course, the answer to that is that you will be here on July 8th for our live Advisory Opinions term recap with you, David. Other David, David Latt from original jurisdiction and of course, legal historian and law professor extraordinaire, Akhil Amar. We will be doing that at the Johns Hopkins Bloomberg center in downtown D.C. if you're into that and might want to attend. Go to executive poweranditslimits.splashthat.com to sign up. And also consider signing up for the Advisory Opinions newsletter if you want a summary of the podcast, you know, chapters
- [02:58]
B
and so many other features that we cannot Even begin to describe all the things.
- [03:04]
A
I mean, people were asking us for chapters for like, oh, a transcript, all these things. Like, we've done it. It's in the newsletter. You just go to scotusblog.com and you can sign up for the AO newsletter and get that into your inbox when every episode drops. All right, let's do this. All right, David, the Supreme Court put out its orders list on Monday morning and we have a few cert grants, a couple of which are worth a mention and we will certainly cover them in the fall when they get argued. But David, there was a trend I wanted to note to you first. So in the orders list from June 1, there was one cert petition granted. And that started with the motion of petitioner for leave to proceed in forma pauperis is granted. So, David, we don't talk a lot about this on the podcast, but there's the paid petitions and the informa pauperis petitions. And the vast majority of cert grants, as few as there are, come from the paid list. There are all sorts of petitions that go to the Supreme Court where the person is asking not to pay the filing fees. And we've mentioned this in the past, that like, on its face, that maybe sounds really bad. Like if you can't afford the several hundred dollar filing fee that, like, you don't get your case heard at the Supreme Court. But it's a little more complicated than that. In fact, lawyers at major law firms would love to argue a case before the Supreme Court and in fact basically sift through these potential cert petitions. And so if you don't have a law firm willing to pay that filing fee for you, it's sort of its own vetting mechanism. And so it's like a double whammy. It's like not only do you not have the money to pay the filing fee, but nobody else is willing to pay it on your behalf because they don't think it's very likely to get granted. But David, that one was granted on June 1 and it was like, oh, okay, that does happen occasionally for sure. But then we got the orders list today. And David, there were two cert grants that were both in forma pauperis today. Isn't that interesting? Now, again, these Supreme Court cases, not only is it the several hundred dollars in the filing fee, but the printing is what kills you. It can be like several thousand dollars in printing fees because there's only a few printers that do this type of printing. You have to have everything in the Right color, you have to have the right, you know, type setting and footnote stuff and all the things, right? So all in all, we're talking several thousand dollars. Anyway, David, these cases, as you can imagine, are all criminal cases. But one of them I wanted to highlight. Highlight for you. Well, really two are worth a highlight. So there were three cert grants this morning. The one, informa pauperis that was granted that, I thought you would be like, oh ho, ho, really? Really? In Florida you can be convicted of a serious crime with years in prison by a jury of six. So, David, six states total use juries with fewer than 12 people for at least some criminal trials. And right now in Florida, all non capital crimes are tried before six member juries. Roughly 5,000 criminal convictions are currently pending on direct appeal. And the supreme court back in 1970 said this was fine in a case called Williams v. Florida. But on Monday morning they just granted CERT from a guy who was convicted of. He's a chiropractor. I don't know. He did something obviously very wrong. Five counts of practicing chiropractic medicine without a license Court and paneled a six person jury as dictated by Florida law. The petitioner's counsel questioned the veneer panel extensively and participated in jury selection, exercising cause and peremptory challenges to various prospective jurors. The evidence at trial revealed that the petitioner's license to practice chiropractic medicine in Florida was suspended. Three patients testified that the petitioner performed chiropractic treatments on them during five separate visits after the suspension of his license. Chart notes belonging to two of the patients and the petitioner's office patient schedule similarly reflected that the petitioner performed chiropractic treatment on those three patients during those five separate visits. The jury returned unanimous guilty verdicts on all five counts. And he got some prison time, like quite a bit actually, David. So yeah, so the Supreme Court just granted cert on that. I think that's kind of interesting.
- [07:53]
B
It's very interesting. You know, the idea that a jury has to be composed of a certain number of people to be a real jury of your peers makes sense to me. Like there's gotta be a number, more than one for it to be a jury of your peers. But what is that number? That's absolutely fascinating.
- [08:14]
A
The question, the like super technical legal question, right, is does the sixth Amendment, when it guarantees a right to a jury trial in the Federal system, mean 12? Yes. Is the answer to that, by all accounts, right? Like there's been a 12 member jury for a Long, long time. Like before America, everyone thought that a jury meant 12. So the Sixth Amendment, there's certainly plenty of text, history and tradition, if you will. That jury in the Sixth Amendment would refer to 12 people. Then you have the 14th Amendment that incorporates various rights against the states. So did the 14th amendment incorporate the 12 person meaning of jury from the 6th amendment against these states? Six holdout states, if you will. Interesting. So the Supreme Court has already overturned one of its precedents on unanimous jury verdicts. If you remember in Ramos, they overturned Apodaca. You have this long, glorious write up in Ramos from Justice Kavanaugh on stare decisis. And when you overturn precedent and what precedent is, and it is, you know, an opus on stare decisis, he in that says that he went back and read basically every discussion of stare decisis in the Supreme Court's history to write his Ramos decision. Super, super interesting. Okay, so that was non unanimous jury verdicts. This will be 12 member juries. And David, like that basically only leaves left the grand jury system.
- [09:50]
B
You're exactly right. That is exactly a case to make me go, oh, interesting. Yeah.
- [09:56]
A
And since they granted cert, you got to assume there's at least four votes to overturn that 1970 precedent that blessed this. Tell me, which of the five in Ramos is going to say non unanimous jury verdicts? Not okay, but six person juries are okay. Like to me, either the sixth amendment is incorporated or it ain't. And I don't know why non unanimous jury would be absolutely not fundamental right. But a six person jury would be just fine. Fine. I don't. But then again, Ramos was 5 4. So all you have to do is flip one. I don't know. Okay, David, So that case will get decided sometime in the fall. And again, Informa Papyrus. Really interesting, because there were all sorts of petitions out there on this. These guys got the grant. Congrats, David. There was another case that got granted that I just thought you would be like maybe a little bit into, because let me read you the Supreme Court's grant. The petition for writ of certiorari is granted as to the United States Court of Appeals for the Second Circuit case. You know, number 2270. Let me just read you what the question presented in that case is, David. Whether there is a point at which an alien's detention pending a decision on whether he is to be removed becomes unreasonably prolonged such that due process requires a bond hearing and whether, if so, due process in such a bond hearing requires placing the burden on the government to justify the aliens continued detention by clear and convincing evidence. So, David, the second Circuit told this administration, yeah, you can't just hold someone without a bond hearing indefinitely and the burden is on the government. So the Supreme Court just granted cert on that, which would make you think like, ooh, that second Circuit case is getting flipped, probably, as in maybe they can hold an alien without a bond hearing. But David, they added a question presented. Let's go back to the search grant. In addition to the questions presented, the ones I just read you, the parties are directed to brief and argue the following whether this case is now moot. So that's a way to flip the second Circuit. Like, you know, their decision would no longer sort of hold for the 2nd Circuit or any of the other circuits who wanted to cite to it. But the Supreme Court doesn't actually have to address the underlying legal question either.
- [12:18]
B
I would love to see that underlying legal question addressed definitively because my answer would. My answer is, yeah, there is a point at which indefinite detention becomes cruel and unusual punishment. Somebody who is a human being on American soil is to some degree protected by the American Constitution in this context. The idea, especially if you're not dealing with an allegation of serious criminal behavior, often if you're talking about a visa overstay, it's not even criminal behavior at all. And can you be detained indefinitely for A, misdemeanor level offenses or B, something that isn't even a criminal offense at all? I want to hear the answer to that question. I think that's an important question, especially in the context of this administration. I think future administrations may or may not do that, but it's a very live issue right now. So, yeah, interesting.
- [13:14]
A
Look, this will be one of the hot button cases next term. No question. This is going to make our top 10 list already. But remember, right. They always have the opportunity to contest that they're being wrongly detained. Right. They have habeas rights, as we've seen, et cetera. So this is not, hey, I'm a US Citizen, you shouldn't be holding me. Detention. This is, yeah, yeah, I am here illegally, but you've been holding me for so long, I want to get out on bond while you decide like when to remove me, et cetera. That is a different question. In my view. We'll get to being able to.
- [13:51]
B
So these are people with removal orders that they are appealing or are they in the middle of removal proceedings?
- [13:59]
A
In the middle of removal proceedings. But to be clear, right. They can always contest that they are here legally that you know anything about the substance of the question of their removal. But this is whether they can be out on bond during that process.
- [14:12]
B
A process, yeah. And so the question is, is there a time limit constitutionally where that process could be going on so long and if they're being held during it, yes.
- [14:23]
A
And your instinct is there is. And I think my instinct is I want to read more of the history, but I'm thinking probably not. Like, I don't know that you always had the right to bond. And certainly if you're an alien, accused alien, if you will, a right to be out in the country when you're not supposed to be here. And that's the whole reason you're being detained. I don't know that you have the right to bond. Now. You might have the right to some sort of speed for the trial itself, if that makes sense. As in there is a point at which they can't continue to just hold you indefinitely. But that's not a bond hearing. To my point, you don't have a right to be let out on bond.
- [15:01]
B
Well, bond is the way you at least maintain a hold on the person.
- [15:05]
A
Oh, yeah. Mine's like, mine's better and worse than yours.
- [15:09]
B
So you've got, you've got two months or, or they get to stay.
- [15:13]
A
No, no, no. Mine's like, it's a long time. Not two months. My God, five years. I don't know.
- [15:21]
B
Wow. Okay, that, that's five years if you're not even guilty. Like, no one's even accused you of a crime and you're in a, in a cell for years. I'm with you. You need a speedy trial provision here. You can't, you can't just sit there and sort of say, well, we don't have enough immigration judges. You're going to rot in this cell until we have until you know your number. 17,832 in the queue in El Paso alone. And you're just going to stay here until the queue gets down to you. I think that would be plainly unconstitutional if it is. Well, you're, once you're detained, there's going to be a three month process and when there is a removal order, you are removed. And here, here's the interesting question. Could you be removed and then retain appeal rights or retain the right to stay through the appeal would be an interesting question, but I just can't see detaining people for any substantial length of time on non criminal, non criminal charges and putting them in criminal style confinement by the way.
- [16:29]
A
Here's the statute, 8 USC 1226 on a warrant issued by the attorney General. An alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States States. Except as provided by subsection C, the attorney general may continue to detain the alien and may release the alien on bond of at least fifteen hundred dollars. And then it talks about the detention inadmissibility for release, you know, deportability. So basically the statute says you may release the alien on bond, but you don't have to. Of course, the question here will be the constitutional question of how long is too long, where it's no longer a may release by bond but a must. David, we'll argue about this one in the fall some more. How about that? All right. Let's move on to some New York Times reporting. Let me just read you the headline and then, David, we'll see where you land on all of this. Frustrated by courts, Trump weighed suspending a constitutional right. Secret memos show that the White House debated last year to a greater degree than previously known whether to limit habeas corpus rights for undocumented immigrants. This comes from the I mean, it's going to be explosive book by Jonathan Swan and Maggie Haberman called Regime Inside the Imperial Presidency of Donald Trump. And they have gotten the two confidential memos that still Staff Secretary Will Scharf wrote to Susie Wiles, one on the right of habeas corpus and the suspension of habeas corpus and the other on the invocation of the Insurrection Act. The reporting says that these memos were written to rebut and prebut efforts by Stephen Miller to convince the president to suspend the writ of habeas corpus to indefinitely detain aliens. Speaking speaking of our previous conversation. And second, to invoke the Insurrection act to be able to federalize the National Guard after the Supreme Court said that they couldn't do it under the statute that they had tried to do it under. David, you know, I read this the write up. Obviously the chapter excerpt from the book once again delivers the goods like they did in the Epstein chapter that was released last week. What really stunned me were the memos themselves.
- [19:00]
B
How did they stun you?
- [19:01]
A
There were so many things that are shocking about this. So first of all, I've known Will Scharf since he was a law student. Will Scharf is a smart, capable lawyer. He is also the staff secretary. Now, staff secretary is an important job. You're, you know, you're there for all the things and you are A senior counselor to the President, there's no question about that. But you are not the Assistant Attorney General for the Office of Legal Counsel that usually writes sort of law review esque memos on legal questions that may arise. You're also not the White House Counsel who is there to provide sort of legal guidance to the President. By the way, there's always been kind of a weird thing like what is the role of the White House Counsel's office that's not the Department of Justice. And obviously there's a lot of litigators and prosecutors at doj, but there's a lot of policy stuff that happens at doj, like the Office of Legal Counsel, like the Office of Legal Policy and of course there's the Office of Legislative affairs of the Department of Justice. Like that place is chock a block full of lawyers to give the President advice. But the President has always had sort of his own cadre of lawyers that work in the White House compound and at various administrations. That balance of power has shifted to the White House Counsel's Office to the Department of Justice. And it's very personnel heavy. So David, I open these memos and they're like this is on the suspension of habeas corpus. There's books on this. And this is a very short memo basically making the case that like the idea that you would suspend the writ of habeas corpus by saying that there's been an invasion of illegal aliens is bonkers town in a five page memo from the Staff Secretary that glides through history quite quickly. And it's clearly written for a non lawyer, the White House Chief of Staff. It's written in very, very plain language. All in all, David, given the assignment, I thought it was pretty well done.
- [21:02]
B
This person in this position writing these memos is one whole issue. Another whole issue is what did the memos say? And from the standpoint of what did the memos say, I thought they were an impressively readable, persuasive without being aggressive, like very well crafted. I have to say in a way that seems calculated to be this is a bad idea. But I'm also not going to like run into. The memos are not an act of running and screaming with my hair on fire. The memos are more like take a beat, think about this. That's more the tone of the memos which I thought was actually pretty masterful. And it's written to a serious. They're written to a serious person in Susie Wiles. So this is a memo being written by a serious person to a serious person. And it reads like that, but it's in more layman's terms. You know, what I thought was interesting is especially on the Insurrection act memo, which is relatively brief, it does acknowledge that the president has just immense power. It doesn't try to hide the ball on that. And I think if it tried to hide the ball on that, you know, you'd immediately see through it as a manipulative act. And so it, it says while section 251, which is the provision of the Insurrection act that allows for the president to deploy the troops upon request, say from a governor of a state, he says while section 251 is cabined by the requirement for request from state officials, the sections 252 and 253 authorities are incredibly broad, allowing for essentially unbounded use of the military in any state with or without state consent or acquiescence, with the only predicate being a presidential proclamation declaring insurrection exists, that is putting it succinctly and accurately, Sarah. And it talks about that many presidents have done it, but in a way in which the clear implication is not here, not now. This isn't right. So I thought they were masterfully written, to be honest, for their purpose. But I was so intrigued by the structure of all of this. This was coming through Susie Wiles's office. And to me, it speaks to a kind of grab bag style of decision making. You know, I sort of, a lot of people know that the last person Trump talks to is often the most persuasive person to him. Equipping the chief of staff with all of the arguments, I don't know. I was actually very interested in tone and style of the memos. But the very issue you highlighted, Sarah, what's it telling you that this is coming up through the chief of staff and not Office of Legal Counsel, not doj?
- [23:48]
A
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- [27:21]
B
I interpret this as a high trust move in your boss. You know, it reads to me very much along the lines of an assignment like, hey, I need to walk in there and I need to know chapter and verse, because I'm going to be arguing with somebody who's got their own version of chapter and verse. And so I interpreted this as kind of a high trust memoir to your boss versus an equipping your boss kind of memo versus a direct rebuttal. And then also, if the other side grabs it and holds onto it, the other side sort of reviews the memo themselves. There's nothing in there that really pokes that bear. Because it does seem to me that there's a dynamic that if you poke the bear, then it's not that you're going to have a dynamic of doubling down and tripling down. And also interesting in the reporting, you can see that often when Trump says something just kind of musing out loud, what sounds like he's just musing out loud, and people will tell you, oh, don't pay attention to it. That's just Trump being Trump. He was musing out loud about something that was the subject of these internal memos, which was suspending habeas, et cetera. And so some of these musings are him just kind of reflecting out internal discussions. And I found that to be very illuminating that as all this was unfolding, he was also musing about it in public. And some of like, you know, the Trump defenders online were like, stop, you know, stop pulling your hair out about this. This is just Trump being Trump. Well, there were internal debates. We now know there were internal debates.
- [28:59]
A
So let's walk through the habeas memo. So this one comes April 29, 2025, and as I said, it's in some ways a little difficult to read if you don't know all the background, because there is no real introduction, there is no conclusion, there is no punchline. You're just sort of like, what is habeas corpus? And this is what someone handed you is more how this reads over five pages. So I'll just, I'll read you some pieces of it. The writ of habeas corpus is a legal mechanism to challenge unjust confinement, detention or punishment. Filing a habeas corpus action allows an individual to present legal arguments as to why they should be released from custody. The history of habeas corpus dates back to the very dawn of English common law. Denial of habeas corpus rights was a key grievance underlying the American Revolution. And the right to apply the federal courts for habeas review dates to the beginning of the Republic. It prevents, in effect, governmental actors from detaining, implementation, imprisoning, or executing individuals arbitrarily. Article 1, Section 9 of the Constitution provides that habeas corpus can only be suspended in times of rebellion or invasion. And the courts have almost uniformly held that suspension of habeas corpus rights requires congressional action. Even when Congress has explicitly suspended habeas corpus rights, the Supreme Court has held that some alternative process must be provided to defendants with procedural safeguards akin to to a habeas corpus action. Throughout American history, all three branches of the federal government have been loath to interfere with habeas corpus rights, doing so only in the direst of circumstances and typically with respect to very limited categories of individuals. The only president to suspend habeas corpus without any underlying congressional action or to defy the courts with respect to habeas corpus matters was President Lincoln. In a brief window at the start of the Civil War and after the ex parte Merriman case, held his actions to be illegal. Lincoln, in fact sought and received congressional authorization for suspending habeas corpus. That's the intro to the memo. That's the whole intro. Then you have early history, the Civil War, Reconstruction, World War II, Global War on Terror, and let me read you the last sentence from the memo, actually the last two paragraphs. In response to Boumedelleen, in 2009, Congress passed and President Obama signed the Military Commission act of 2009, which established new military commissions with procedural rights and safeguards more akin to traditional legal proceedings aimed at satisfying the court standard. The upshot of these cases is that for all persons held in de facto US Territory, habeas rights apply. Or in the limited circumstance of military detainees, an adequate alternative to habeas must be provided. The end of the whole five page memo.
- [31:49]
B
It's a civics lesson. That is what it is, but it is a civics lesson written from a very subtly, a very subtle pushing perspective. If you were going to be pushing Trump in the other direction, you would begin with the unambiguous Lincoln example and illustrate the extent to which you have the possibility of defying the courts and then going to Congress and demanding that Congress act to ratify. You know, ratify your action doesn't really go that direction at all. And it's interesting. Here's how the Insurrection act memo ends. It says, overall, while a president is highly likely to win a case at the Supreme Court over an invocation of the Insurrection act, particularly with the current court, which has been generally deferential to executive prerogatives, Justice Roberts hates that line. I'm sure that does not mean that such an action would result in vigorous litigation. Would not result in vigorous litigation. We've consistently seen the same model of litigation during this administration. Left wing public interest firms or Democratic states rush to court in friendly liberal dominant judicial districts, obtain immediate equitable relief in the form of a temporary restraining order, order or preliminary injunction, and then drag their feet through appellate review. While we have consistently won the mind run of these cases, particularly at the Supreme Court, it can often take us weeks or months to unwind the initial legal damage. The same model would likely apply to litigation over an invocation of the Insurrection Act, a very likelihood of both long term success, but also short term disruption. So he's highlighting you're going to. Basically that's a polite way of saying you're going to get enjoined. If you do this, there will be injunctions that will issue. You're probably going to win on appeal. But don't think you can that you're going to change the facts on the ground right away. Which was a very interesting way of framing it and also thought extremely straight up and accurate.
- [33:52]
A
On the habeas thing, I think this is like at the heart of our maybe slight disagreement on the bond hearing for aliens who are being detained. Right. If you've been detained for five years, using my like sort of crazy example, you always have had the right during that time to bring a habeas action and argue that you are being unlawfully detained. The question in the litigation in that cert petition is whether you have the right to bond. That's the point I'm trying to make of like the bond is like not a right. Your right to habeas might be a right to just be released.
- [34:25]
B
In a way, I'm harsher than you.
- [34:27]
A
Let's talk about fallout from these memos, David, because. And I'm going to. I do. I get so many emails from chemists when I ever mentioned the Heisenberg principle. I am aware of the actual Heisenberg principle, but I like to use it as a metaphor in political world.
- [34:44]
B
Did. Is that the root of Walter White calling himself Heisenberg in Breaking Bad? I just. Okay, I'm a little slow here, guys. I'm a little slow. All right, go ahead. I'm so sorry.
- [34:58]
A
Okay, so the Heisenberg Uncertainty Principle, as correctly stated basically by. You can't measure two things at once. That, like, by measuring one, you lose the ability to measure the other. I get that. But in my metaphorical Heisenberg Uncertainty Principle, by being able to see these memos, you have changed the import of these memos.
- [35:21]
B
Say more.
- [35:22]
A
This is an internal battle between Will Scharf and Stephen Miller with, you know, Susie Wiles, it appears, trying to not look like she's in that fight while being armed by the Scharf team. And it reads to me as if it's pretty important if you want to persuade the president that you're not seeing as on a different team than Stephen Miller. Well, now the teams are very like, now we all know that this is happening and what the teams are and what these folks were doing sort of behind the scenes, et cetera. And so did this just undercut the ability of Will Scharf and Susie Wiles to persuade the President not to do things like this, whether these, you know, whether the insurrection, suspending habeas corpus or not, but future things. And so if this hadn't happened, this, you know, the regime change book and this chapter being published, would everyone have known about these memos internally? Would the president have, you know, known that Scharf and Wiles were collaborating, et cetera, as in, by us seeing these memos and talking about these memos. Did we just make these memos less effective?
- [36:35]
B
I wonder about this as we were kind of reading through the memos, how much of it is because the decisions were ultimately made not to suspend the writ and not to invoke the Insurrection Act? How much are we reading these things as subtle persuasion when maybe Scharf is sitting there listening to this podcast going, no, guys, this was just a straight. I was just playing this as straight as I could. Like, that's just what the law is. And here you're reading in all of this subtle pushing and no, all I, I was just giving my boss what she asked for. What's the law here? What's the history here? I still do think, even I still do think when you read through them top to bottom, they actually, they. They absolutely imply an outcome. They imply a proper outcome. But maybe that's just always what's going to happen in this context when you play it straight, because the proper outcome, you're grasping at some pretty then slender reads. If you're wanting to use this present moment to suspend the writ, for example, or this present moment to invoke the Insurrection Act.
- [37:38]
A
You and I both know how lawyers write memos where you are trying to give both sides the best arguments for both sides. Those are very common legal memos to write. This ain't that. Where's the best argument for the other side?
- [37:53]
B
I was just thinking as I was sort of rereading along with you, how much of this is a push memo? How much of this is a just the facts ma' am memo? And I was doubting myself. Was I over reading the push because of the outcome?
- [38:07]
A
All right, David, when we get back, I want to talk AI legal. AI specifically, an interesting case from the 11th Circuit. They keep the 11th Circuit, man. It's like where all the fun stuff is happening. And finally, we had some really interesting emails about our accommodations conversation. And one of them in particular just had some data I felt like was really informative. So all that and more coming up on advisory opinions. All right, David, there was this tweet from someone. We don't know and can't verify anything that's in this tweet, but let's assume it's right for a second. Here's the information in the tweet about AI and anthropic released Claude Fable 5 yesterday. Two numbers from the launch tell you everything about where AI and legal actually stands on Harvey's legal agent benchmark, which measures end to end completion of legal tasks under a strict all pass standard. It scored an all time high of 13.3%. So just to be clear, all pass standard means one miss and the task fails. Fails, which, of course, is how life works in a lot of ways and specifically for lawyers. So if it wrote a whole brief and the whole brief is just brilliant, but it has one fabricated citation, it's not 95% good. It is 0% good according to this test. So 13% of the time it managed to write a brief, let's say, without something totally incorrect in it. Those aren't great odds if you're a lawyer right now relying on AI.
- [39:49]
B
We just keep seeing these stories. I mean, most recently, my favorite one is Judge Punishes four Lawyers after catching Both sides using AI in a lawsuit. And what is a consistent way in which lawyers are caught using AI is their briefs contain nonsense, fabricated cases, fabricated quotations, things like Ruth Bader Ginsburg writing opinions after she's passed away. I mean, crazy stuff that would be malpractice, that would be punishable if you'd done it yourself in some circumstances. You know, look, mistakes happen in briefs, but rarely do you actually fabricate a case and fabricate a quote. I mean, that's bad stuff. And I like the David Latt joke in Original Jurisdiction, his newsletter that all we need now is for a judge to write an AI order sanctioning attorneys on both sides for AI written briefs, and then that judge being caught writing an AI order. But this is going to an issue and I'd be very interested in more informed listeners takes. And that is I consistently get this question about why don't you use AI more? How do you use AI? And when they find out it's very, very limited in the way that I use AI My answer is anytime AI gives me a product of any length at all, I have to go back through it and check all of it, just all of it. Because if one part that's wrong sneaks in, it's all tainted. It's like 99% of this water is not cyanide. Only 1% is, you know, what's the problem? And I think a lot of AI folks, they look at AI like this iterative learning process. We're like, oh, don't worry, it's just going to get better. Okay, now it's gone from 10% all, you know, 10% of the time. Correct. To 13%. Yay. That's way short of where I need it to be. Way short. And how much are you going to allow yourself to be used as the guinea pig? The iterative guinea pig that just keeps improving it while it fails you in some material ways.
- [42:09]
A
I also think at the same time that it is getting better and better. No question. Our human pattern recognition brains are starting to recognize AI writing, the voice of AI writing, which is like, you know, sand moving out from under the legs of AI as AI is getting better. But also we now recognize AI writing and think of it as bad writing. AI is going to have to also improve as the sand slips.
- [42:35]
B
If you want to do a quick primer on AI writing, go on Twitter and read. Basically go to the 4U algorithm and read. If you see like a Twitter article, a Twitter story, or a really long tweet by, often by an account you've never heard of that's kind of going viral, odds are that's an AI written article. And one of the tells is they're always going to end with the mic. They always have the mic drop ending. They always, that last sentence, like, tries to nail it all. They always have it. Always.
- [43:10]
A
I just hope that we as humans recognize the pattern and see it as bad not recognize the pattern and then start mimicking it ourselves. Have you ever had a job, David, where it's like, oh, no, this is making me a worse writer?
- [43:27]
B
That's a great question. I have had bosses who I felt like were making me a worse writer.
- [43:32]
A
Yes, that counts. So like. But at the same time, like, that's who your boss is. And so, like, if you stay there long enough, you will start to mirror your boss's bad writing habits, making you a worse writer. Are humans about to be worse writers? Because we will be so surrounded by AI talk.
- [43:54]
B
Yeah, know, pour one out for the death of the EM dash. Because I. I used to really like the EM dash because I felt like a semicolon, sort of didn't read as well. There was something about the semicolon that was more of a hard stop as opposed to a flow into. And so. But now the EM dash is AI. That's what AI does. And so will this lead to the revival of the semicolon as human signaling? And I don't like the semicolon as much, but now we're. Now we're in really insider writing baseball.
- [44:25]
A
Okay, but you think about. Think about movie scripts, right? We were talking about old movies the other day. I think our brains have to work a little bit harder to follow old movie scripts. And at the time, it wouldn't have been hard to follow because that's the way people spoke and wrote, and that was, you know, fish and water for them. But not only does language evolve, but the sentence structure evolves. The way we write evolves. So, for instance, David, when we say that nine of the 10 best writers who've ever been on the Supreme Court are on this current Supreme Court, some of that is the bias we have toward current modern writing. And that comes from sort of a group project, basically, of how we all communicate with each other. And if AI is now part of that group project, it's going to make us all worse at writing and at communicating, but we're going to think it's better.
- [45:19]
B
Yeah, you're raising a great point, though, about that Human pattern recognition is that it's actually kind of surprising to me the extent to which it is now easy to spot AI writing. I fully recognize you can do AI influenced writing, but if you're coming in as a human and sort of reading all of it and cleaning it up, you're treating it as sort of like a first draft, and then you're cleaning it to such a degree that you're, you know, the second draft is substantially different. That I cannot spot. That I cannot spot. That would beyond my capabilities.
- [45:52]
A
All right, David, I want to talk about this 11th Circuit case because I'm so into it. This is a campaign finance case. I will read to you from Judge Grant's opinion. Gubernatorial candidate Rick Jackson is the latest in a line of would be governors who have objected to the uncapped fundraising opportunity that Georgia law offers incumbent governors and lieutenant governors. And he is likely correct. The First Amendment does not forgive such favoritism. David, I'm sure everyone's like, wait a second, what? You can raise unlimited money if you're an incumbent, but not if you're running for governor. That seems crazy. That can't possibly be the way it is in Georgia. Oh, hold on for a moment and I will explain it all to you. The Georgia Government Transparency and Campaign Finance act comprehensively regulates campaign financing and spending in state elections. The law imposes limits on the amount of money that candidates for statewide office can accept from individual contributors, same as the federal system. David. Currently Those limits are $8,400 for primary and general election and 4,800 for runoff election. Georgia has had contribution limits in place indexed for inflation since at least the year 1990. Campaign committees are subject to those same limitations. Georgia also allows various other political committees that have different rules, but none of them allow both contributions of an unlimited amount and direct support of a candidate. Independent committees, for example, can accept unlimited amounts from an individual donor, but cannot coordinate their expenditures with candidates or their campaign committees. David, by and large, we're still describing the federal system. Okay, next take political action committees, which also face no restrictions on the amount of money they can accept from individual donors, but their own contributions to candidates cannot exceed the usual limits. For our purposes here, David, let's say that's the same as the federal too, in terms of they are limited in how much they can give to candidates. Hybrid packs fall somewhere in the middle, blah, blah, blah. But let me tell you about leadership packs.
- [47:58]
B
This made my eyes pop out of my head. I was just like, what?
- [48:02]
A
The leadership committees authorized by the Georgia legislature in 2021 are birds of a different feather. They are bound by neither contribution limits nor restrictions on direct support for candidates. They can both give and receive unlimited dollars, and they can directly coordinate with any campaign. Sounds great, at least from the candidate's perspective. But not all candidates can take advantage. Only those occupying a few particular roles can form and chair leadership committees. Most relevant here and in past litigation over this provision, is that two major players can chair leadership committees ahead of a Primary election for statewide, the incumbent governor and the incumbent lieutenant governor. David, this has always been my beef with campaign finance changes. You sell it to voters as getting money out of politics, but in fact it is written by incumbents to protect incumbents from anyone challenging them. So just to run through how this actually works in practice, if you are the incumbent Georgia governor, your leadership committee can accept unlimited dollars and and spend unlimited dollars in coordination with your campaign. If you are running for governor for the first time, you can only accept $8,400 per individual into your campaign. Full stop. And all of those unlimited PACs that can accept unlimited money cannot coordinate with your campaign. The end. This is obviously insane. Now, the legal questions in this case are about actually, you know, preliminary injunctions and whether the leadership committee qualifies as state action. Those are kind of interesting, David, but not for my purposes here. For my purposes here, talking about campaign finance reform. What the whating what in bonkers town of the what what's all campaign finance reform legislation, David, to me reads like this because I see all the way it benefits incumbents and is meant to block out challengers. So even the limits on individual donors is an incumbent protection mechanism. Again, it's sold to voters as getting money out of politics. But we all know, can't you see it's not getting money out of politics. The amount of money spent on politics continues to increase. So either you have to believe that they were morons or that that was never their goal. Well, let me tell you, it was not their goal. The goal was in fact to make it very hard to run against an incumbent because the incumbent already has the donor lists. This is the whole reason that you cap individual donors. It helps incumbents. So Georgia's system is extra stupid and bad for incumbent protection. I mean, it's brilliant for incumbent protection, I guess. Except it's not brilliant because it's so obvious.
- [51:05]
B
My favorite part of the opinion, Sarah, to start, the Jones leadership committee has never even tried to articulate an anti corruption interest justifying the statutory scheme. You think? Instead the committee makes the remarkable assertion that the section of the law, quote, does not implicate First Amendment concerns. We would be hard pressed to reach that conclusion even in the first instant. But Davis, a Supreme Court case has already given us the answer there. The Supreme Court considered the Constitution constitutionality of a federal election law that in its words sometimes imposed different campaign contribution limits on candidates competing for the same congressional race or same congressional seat.
- [51:47]
A
And this is a swing state now with a big governor's race not A close call. All right, David, last thing we got this. We had a lot of emails about the accommodation stuff. I was sort of shocked. Everyone actually was sort of on the same side with some varying, like, perspectives. But several people with true, what I would call like very, you know, physical, for instance, needs for accommodation wrote in to complain about the current system.
- [52:16]
B
Right. I know that was something that was
- [52:18]
A
surprising to me and in fact came much closer to your side of the line that maybe we just need to get rid of all accommodations because this has broken the system. Anyway, I wanted to read you this one because it included some really interesting details. Data. So this is about the LSAT specifically, but the same accommodation rules apply. Right. This is a timed exam that is meant to run out of time, induce anxiety, et cetera, et cetera. And so all these people are getting extra time. And the whole point is to have a timed exam. Okay. Nearly a quarter of my students have extra time. The LSAC released a report on accommodations last month and the statistics are sobering. Upwards of 98% of requests are approved for accommodations for extra time. Approved accommodation requests have more than quadrupled over the last six years. That's nothing, David. That's so fast. More than 75% of those accommodation requests are for ADHD and psychological diagnoses, which are especially easy to game. Most strikingly, accommodated students score about four points higher on average than non accommodated students, which is a 15 percentile point gap. If the extra time simply leveled the playing field, we should expect no difference. Boom.
- [53:35]
B
The goal of an accommodation is to bring you to parity. It is not to grant you an academic advantage. And when you see the highest end students racing to accommodations, what that is telling you is they have accurately perceived this is a very efficient market in a lot of ways. They have accurately perceived advantage and are moving towards it. And one of the reasons why Sarah and I have both raised sort of a class element to this is that it is in those sort of, again, not exclusively. We're talking generalities. I know there are, you know, families without a lot of means who are on top of these trends as well. But as a general matter, you know, if you're talking about knowing all the emerging trends in academic admissions and academic success, who's on that? Who is on that? It's all the Princeton moms and dads trying to raise Princeton kids. They're on it. And so this number of their quadrupling in the last four years is, again, that's another tell. This is sort of that herd mentality. Aha, Aha. We have found a way. We found that extra little edge. And you know, and I also feel bad for the people who have genuine. And I do want to clarify something. I got a couple of emails. Okay, so if someone is blind, yes, absolutely. They should be able to have either a braille exam or have the exam read to them where they can take the actual exam. But as far as when I was talking about accommodations, I was talking about these vague extra time accommodations, often granted, not for a physical disability, but for a perceived psychological disability, many times under this extremely difficult, amorphous, easy to game kind of system.
- [55:22]
A
And David, I took your point to be also though, that you get all the accommodation to be able to take the exam, but you do not get more time under your version. So if you are blind, you get the, you know, you can have it in braille, you can have someone read it to you. Any accommodation that allows you to overcome that disability to take the exam. But in a professional school, you said maybe below that, where you have different rules. But by the time you get to a professional school, med school, law school, business school, extra time just isn't one of the accommodations.
- [55:54]
B
Yes, exactly. Exactly.
- [55:57]
A
Well, David, I'm told from the chattering classes of law students who are in summer associate positions that that was a popular segment to have passed around and that they're incredibly frustrated, but that again, like, no one's. The law schools themselves just don't have a lot of incentive to solve the problem because no one's making them. The law firms are still hiring their students. The judges are still hiring their students. And so in terms of incentives to fix this, why would the law school care?
- [56:29]
B
I think there's people who currently have accommodations who would be totally fine with not having accommodations because they've done it as part of this arms race mentality. And so, yeah, I mean, quadrupling in the last few years. I mean that again, a giant tell. The concrete score advantage. A giant tell. Everybody knows what's happening here.
- [56:50]
A
We'll get more opinions on Thursday. And at this point, I'm just gonna like, try to jinx us intentionally. There are so few not big cases left. Let's see. I dare you, Supreme Court, to put together three or four cases that don't include one of our top ten. I dare you. Try it. All right, so we'll be back with whatever they hand down to us in the next episode. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO, you can, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch Podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes, two gift memberships to give away, access to exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us at Advisory opinions the dispatch.com we read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.