Thoughts on ai

I haven’t posted anything in a while.  This is just a random thought, not really a full post.  

It’s not quite “new,” but ai has recently become ubiquitous.  The technology isn’t going anywhere, has amazing capabilities, and does things astoundingly quickly.  In the law, the big firms are all using it, and even with carefully planned guardrails and implementation there’s been highly publicized errors (fabricated cites, etc) and probably many that aren’t so public. 

Everyone has it, or some variation, and there’s downsides.  For seemingly routine tasks, it gives you a polished seeming product, that’s usually unnecessarily wordy and complicated.  We’re entering an era where discovery disputes - which already become easily protracted - are becoming automated.  Tons of firms, particularly in volume practice areas, already used formulaic demands and objections, but now those form docs have a life of their own.  It’s not all bad, the ai does more thinking on those types of tasks than some lawyers or paralegals, but it’s also a lot of automated churning that we humans have to wade through. 

There’s many use cases for it, and it’s not going away.

I was really impressed for a while with westlaw’s ai function, and google gemini can also be very good for deep internet research, but they have limits.  I always loved doing deep dives.  You research a concept, and as you read and learn you refine what you’re searching for.  

I recently thought I had a research task that was perfect for ai: search every case nationwide for how a statute has been applied to variations on a fact pattern.  I knew the cases were out there, but it was the sort of thing that doesn’t generate a lot of published decisions and you had to actually read the facts because judges wouldn’t always use identical phrasing.   

So westlaw ai initially gave me junk.  Decent junk, the right legal principals, but not the fact patterns I needed.  Gemini, on the other hand, gave me hallucinations.  It gave me one or two legitimate leads on cases to look into, but probably 80% was just fake, and then I’d call it out and get a “you caught me” response.  I knew that was a possibility, but I hadn’t seen it like that before, and it’s hard to understand why it happens, particularly when I was very clear in the prompts as to what I wanted. It’s also really surprising because google scholar is great, and and they already have an organized database of every modern state and federal court decision.  I got the ai to agree that it would only give me cites from google scholar, then it proceeded to make up more stuff anyway.  Something’s off, maybe even intentionally, because Google’s ai should be able to do that.  

So back to Westlaw, with old fashion terms and connectors, but now that the search wants to think for you it’s a battle to make it just a tool that does exactly what you ask and nothing else.  I did, eventually, find exactly what I was looking for.  

I’ve noticed a similar thing with google just with personal things lately.  It will give you an ai response, based on ai slop that’s flooding the internet, and struggles to assess the reliability of its sources.  

What prompted this post, although it was percolating in my head from research i did earlier in the week, was trying to figure out if a nonsense Facebook post about a decorative park bench was real or fake.  It was such a close call that I googled it, but google sees the same ai generated story and pictures gave it back at me as if there were multiple sources.  Looking a little deeper, I’m 95% sure it’s fake, but there’s a feedback loop of generated content being the source for more generated content.  

It’s the same with using ai for legal research.  It can be done and done well, at least if used as a background memo where you double check everything, particularly with westlaw or a similarly constrained database, but there’s is an avalanche of ai generated material out there (including legal blogs and websites) that is now going to be looked at as a source to answer new queries.  We all know or should know that just because it says it somewhere on the internet doesn’t make it true, but humans’s already struggle with it, and LLM’s may increase rather than reduce that problem.  

Compelled Access to Neighbor's Property for Construction - RPAPL 881

 I saw a blurb in the law journal today about this decision, In Re 1643 First LLC v. 1645 1st Ave LLC, 2024 NY Slip Op 01111 (1st Dept. 2024), and it deals with an interesting issue that I've addressed a few times on both sides and would like to handle more of.  

A neighbor can be required to give temporary access to their property to enable construction, such as a fence contractor needing to cross the property line to do the work even if the fence itself is going to be on one side of the line.  With fences, hopefully people act neighborly, but it become a major issue in New York City where buildings can be right up to the line and sometimes even share a common wall, and construction projects can involve prolonged periods of scaffolding and similar inconvenience to the neighbors.  Ideally, those issues are worked out voluntarily between the neighbors with a licensing agreement, but sometimes people can't agree or just won't cooperate.  If that happens, RPAPL 881 lets the Court impose a reasonable licensing agreement, which includes a fee for the use of the property, measures to make sure the adjacent owner is fully protected (both in terms of safety issues and in terms of making sure they are fully insured and indemnified), and the neighbor is generally entitled to any reasonable costs and fees they incur.  

In 1643 First v 1645 1st, the lower court judge didn't allow for expansive indemnification language and denied the neighbor's request for fees.  On Appeal, a panel from the First Department (which covers Manhattan and the Bronx, and is great -- they tend to know what they're doing, particularly with these types of issues, and work faster than the other Departments) reversed, finding that the neighboring owner needed to be fully protected, and that the lower court judge cannot deny fees without explaining why they were denied and can only do so if the fees were "unreasonably incurred" or the denial was necessary to "redress the prejudice caused to petitioner by respondent's litigation errors and any other misconduct."  

Kennedy v. Bremerton - Non-Coercive Post-Game Prayers by Coach Protected by First Amendment

 I have a lot of thoughts on the Supreme Court's decisions over the last week, but unfortunately not enough time for something comprehensive at the moment.  Here's my quick take on the most recent one:

* Kennedy v. Bremerton: 

Gorsuch Majority Opinion: Coach's post-game prayers are protected by the 1st amendment, provided students aren't coerced to join.  Religious expression is protected by the constitution, not treated as "second class speech."  The Free Speech and Establishment clauses should be complimentary, not in conflict, and must be read based upon the "understanding of the Founding Fathers."  

Thomas/Alito Concurrences:  Notice we didn't talk about the appropriate standard of scrutiny. That was on purpose.  The standards might be different under different circumstances, who knows anymore.  

Sotomayor/Breyer/Kagan Dissent:  The majority just changed decades of precedent again, based upon a factual narrative of someone saying a quiet private prayer, but here's photos of a public school coach in an area with diverse religious backgrounds leading a large group of students in a Judeo-Christian prayer. 

My analysis: I tend to agree with a lot of the majority opinion, even if it's a change in the law, although they seem to oversimplify the facts and issues.  Within appropriate parameters when it comes to pubic institutions, religious expression is supposed to be protected by the constitution.  But, it's a tough issue, and the Court has made it more difficult by continuing to move away from using standards of scrutiny (which has been going on for years, and isn't a left/right issue, and is a huge change).  They're re-writing the last century of constitutional law.  One concerning issue is that the majority compares the 50-yard line prayers to a Muslim teacher being allowed to wear a headscarf, but I don't see those as in any way comparable unless the teacher was also passing out headscarfs to students.  It's not clear the outcome would have been the same if it was a coach leading groups of students in kneeling towards mecca while praying Islamic prayers.    The Establishment and Equal Protection Clauses requires, and this Court may well strongly agree that they requires, that all types of religious expression receive the same protection.  Parts of the majority opinion read more like a brief (why is the coach being a veteran relevant, let alone so prominently noted?).  It's a very different approach than the Court has taken in a long time, and the is part of a major shift in the whole field of constitutional law. 

U.S. Supreme Court

So on Monday, March 21st, the US Supreme Court approved my admission, and denied a petition for certiorari that I’d drafted the brief in opposition for.  The arguments went deep into due process, equal protection, and takings jurisprudence, so I had an opportunity to draft what I thought was a very solid summary of the Court’s key precedents in those areas, and why there’s no need to revisit the issues in response to this case. While we’d gotten the case dismissed, I had argued before the lower courts that shouldn’t exercise jurisdiction, and in seeking cert the Plaintiff argued that Knick v Scott had expanded federal jurisdiction over state land use matters, so also had the chance to preliminarily brief some nuanced jurisdictional issues as well.  

I do a lot of constitutional and civil rights litigation, including a fair amount before the Second Circuit, so practicing before SCOTUS in the future isn’t unrealistic, and it is something I really hope to have the opportunity to do.  If I’m that lucky, it would presumably evolve out of my existing federal appellate work, but now that I’m officially admitted if anyone needs an attorney for petitioning for or defending against cert, or drafting an amicus brief, please keep me in mind.