Free Speech, Due Process and Trial by Jury
Last fall, ChatGPT took the world by storm, allowing millions to experiment with “generative artificial intelligence” through a simple and intuitive interface. ChatGPT’s success drew competitors, one of which is Claude, whose creators claim it can analyze long PDF documents. To see what Claude could do, I uploaded the petitioners' and respondents' briefs from Dobbs v. Jackson Women's Health, the 2022 case that overruled Roe v. Wade.
The Senate has now approved the House’s revisions to the bill that would form the new Fifteenth Court of Appeals for commercial cases. Once the two chambers of the Legislature sign the final version of the bill, the creation of that new court awaits only the governor’s signature.
Before long, that court’s justices will take office and its docket will begin to fill with cases. As a brand new institution, the Fifteenth Court will have no precedent of its own to apply in those cases. With apologies for the pun, that court will face an “unprecedented” situation.
ChatGPT can be a valuable tool to avoid the constant occupational hazard for litigators of “groupthink.” All of you have to do is ask it some simple questions and you’ve got the opposing point of view, well-explained. Here's why I think of it as my "Pocket B.S. Detector."
In 1985’s classic film, The Return of the Living Dead, a rainstorm spreads a zombie-creating chemical throughout a city. In 2022, the Supreme Court’s relentless focus on originalism has also awakened long-dead legal doctrines. One such resurrection appears in the concurrence from Golden Glow Tanning Salon v. City of Columbus, which advocates examination of a constitutional “right to earn a living” in light of how such economic matters were understood in the late 1700s.
Seven federal courts, including the U.S. Court of Appeals for the D.C. Circuit, have rejected arguments that federal financial regulators should not be funded by assessments made outside the usual budgeting process. The reasoning was those fundings are done pursuant to acts of Congress.
The Fifth Circuit in Community Financial Services Association of America v. Consumer Financial Protection Bureau saw matters otherwise and cited several drafters of the Constitution, including the ubiquitous Alexander Hamilton.
Scholars traditionally classify the statements in a judicial opinion as “holdings” (the reasons for a court’s decision) or “dicta” (additional discussion not necessary to the result, with varying precedential value depending on its thoroughness). But that distinction comes up short when applied to Fifth Circuit Judge James Ho’s recent concurrence in Defense Distributed v. Platkin. The concurrence—a courteous (though unenforceable) request to a district court in another circuit—is an unusual jurisprudential addition to the patchworks of holding and dicta that ordinarily fill the Federal Reporter.
Despite the recent threats of conservative lawmakers to impose civil and criminal penalties on Texas residents seeking an abortion in another state, the privileges-or-immunities clause and the dormant commerce clause can protect interstate travel for those parties. But will they given the current makeup of the federal courts?
Cyberpunk fiction often calls the physical world “meatspace,” as distinct from the online world of cyberspace. Litigation does not observe that distinction. Disputes about personal jurisdiction often ask a court to review the interaction between the physical and online worlds. The Dallas Court of Appeals recently reviewed the current state of that important law in Shopstyle, Inc. & Popsugar, Inc. v. rewardStyle, Inc.
The start of Judge Andrew Oldham’s opinion in Hewlett-Packard Co. v. Quanta Storage captures the essence of high-stakes litigation. Faced with a major antitrust claim by Hewlett-Packard, “Quanta risked bet-the-company litigation and lost, so the district court ordered it to hand over the company.”
The Fifth Circuit recently confronted a classic “economic loss rule” problem under Texas law. While the case involved a dispute about the operation of a power turbine, the legal framework described by Golden Spread could easily set the ground rules for future business tort litigation arising from the COVID-19 crisis.
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