Free Speech, Due Process and Trial by Jury
A recent Lawbook piece cited trial experts predicting juries would become AI’s de facto regulators as litigation surges. History says otherwise — pointing to how Congress and state legislatures moved to shield gun makers and businesses from similar waves of lawsuits before they ever reached juries.
In an opinion released Wednesday, the U.S. Court of Appeals for the Fifth Circuit sanctioned a lawyer $2,500 for filing a reply brief with several “hallucinated” case citations and then providing evasive responses to the court when it asked the lawyer about those references. Chief Judge Jennifer Elrod wrote the opinion and was joined by Judges Jerry Smith and Cory Wilson. The opinion provides a strong statement about the Fifth Circuit’s view of this highly relevant topic, as well as practical pointers to avoid this kind of problem going forward.
A 2026 rule amendment by the Texas Supreme Court mandates that petitions for review begin with an introduction of no more than 1,000 words explaining why review should be granted. At first glance, the rule seems sensible, given the hundreds of petitions that the court must promptly review every year. But that perceived benefit may be illusory.
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?
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