The Hallucinations Are Winning

Episode Notes

Transcript

Joe Patrice:

Welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law. I’m joined by Kathryn Rubino.

Kathryn Rubino:

Hey and

Joe Patrice:

Chris Williams.

Chris Williams:

What’s up?

Joe Patrice:

And we are all doing what we do every week, which is give you a rundown of some of the big legal stories from the week that was over here at a Above the Law obviously. Well, this kind of,

Kathryn Rubino:

There we go.

Joe Patrice:

Yeah, that’s our sign that we’re going to have some small talk, which is we didn’t have nearly as many stories this week because of course we had a holiday shortened weekend, which allowed us to,

Kathryn Rubino:

Which is technically a three day weekend, but I think a lot of us took it as a four day weekend.

Joe Patrice:

What was it? No,

Kathryn Rubino:

It was a three day weekend. We got off Friday, but I think that,

Joe Patrice:

Oh, that people did, people checked out Thursday.

Kathryn Rubino:

People check mentally if not

Joe Patrice:

Physically. I see, I see, I see. Yeah.

Chris Williams:

Joe didn’t notice because he is still so engrossed in the legal side of AI that every day he’s just logged in doing the effort.

Joe Patrice:

Well, I mean it was the sort of week where people did their best to dump things, dump bad news so that people wouldn’t pay attention to it over the holiday weekend. So somebody had to be locked in to make sure that the powerful don’t get away with bad things. I guess nobody did at that point care about.

Kathryn Rubino:

I

Chris Williams:

Just care about buying. My decision was made. They got away with it,

Kathryn Rubino:

But it was a holiday weekend. I did a fair amount of BB queuing, but that, I mean grilling not like the real slow process barbecue, but put things on the grill and it was quite tasty. What’s your favorite barbecue grill sort of treat? I will open this up to both of you.

Chris Williams:

Oh, I have the objective correct answer. It’s burnt ends. Yeah, I agree.

Kathryn Rubino:

Well, yes, yes, I think that’s right. Those are delicious. But I was more thinking on a typical grilling, not necessarily something that you have to dedicate chunks of your life to doing something that you could do in a quicker form that’s like, Ooh, this would be a fun treat right now as opposed to something you need to sort of plot and plant, which no disrespect to burnt hands, it’s just a commitment.

Joe Patrice:

So just a quick grilling situation

Kathryn Rubino:

Like hot dogs are not Right,

Joe Patrice:

Right, right. On the quick grilling situation, I think I will go unconventional. I think nothing really beats a breakfast on there.

Kathryn Rubino:

Ooh.

Joe Patrice:

So yeah. Do you have

Kathryn Rubino:

Flat top action going on?

Joe Patrice:

Yeah, get like a griddle insert and get some, yeah.

Kathryn Rubino:

Yeah, I like that for you. What about you Chris? I mean I know burns still have a place of love in your heart, but they’re not the only option

Chris Williams:

If I understand what you’re saying. One, I don’t know why Joe answered breakfast, but two, it would be grilled fruit, so some grilled pineapple, grilled watermelon, some nice little salt on either it helps bring off the sweetness or

Kathryn Rubino:

Ta, but

Chris Williams:

They’re like,

Kathryn Rubino:

That’s really tasty on it.

Chris Williams:

That also works, not my cultural background, but I respect it. Yeah, I tried to get into ta. It’s not the I’ve had on mango, but it’s not that it’s bad, it’s not the thing I reach for. It is in my kitchen. I see the jar of it. I give it a head nod when I walk past. It’s about

Kathryn Rubino:

Maybe next time it’s about the end of it.

Chris Williams:

One thing I will say, hot dogs are mentioned as a easy grill. We have moved past the hot dog meta as being the cheap easy meat to prepare for a lot of people. Pork shoulderGet On pork shoulder. It is very inexpensive per pound and it feeds a lot of people For like 30 bucks, you can get like 15 or so pounds of meat season it cook it on low, cook it low and slow and it’s delicious. You can do pulled pork with it. You can slice it up if you want to. Very versatile. So just for any of, if you’re a pit master listening, you already know about the joys of pork shoulder, but if you’re a novice who makes eggnog and a pressure cooker or something, so should the way

Kathryn Rubino:

To go, I mean I already kind of mentioned it, but nothing is quite as delightful as a hot dog on the grill to me, when they get all a little bit burnt, charcoal is tasty. If cancerous a little char on it, maybe a toasted bun, and I think that the world is your oyster when it comes to toppings. I made some chili this weekend and we did chili cheese dogs, which just felt elite. I can’t even lie.

Chris Williams:

Yeah, no. I’ll be honest, I can’t hear about chili cheese dogs and not think about Sonic the Hedgehog

Kathryn Rubino:

Because of Sonic. The location?

Chris Williams:

No, Sonic the Hedgehog, like the Sega character.

Kathryn Rubino:

No, I knew that

Chris Williams:

Said the favorite food is chili cheese

Kathryn Rubino:

Dogs. Oh, well they also sell ’em at Sonic. The fast food locale

Chris Williams:

I’ve probably watched, I’m not sure which came first, but yeah, there’s some reason that chili cheese dogs are canonically sonic, the hedgehog’s favorite food.

Kathryn Rubino:

Interesting.

Chris Williams:

Yes.

Kathryn Rubino:

I guess I checked out of the Sega verse before that became relevant.

Joe Patrice:

Maybe that’s why he’s running, so

Kathryn Rubino:

He’s got to go to the party. Got to go fast. Yeah. Oh, I love that. We made poop

Joe Patrice:

Jokes. Thanks for extending the joke all the way there.

Kathryn Rubino:

Welcome. I just

Joe Patrice:

Prepared to, I assumed our audience, who is Yeah, our audience who’s very sophisticated I thought understood it already, but okay, well mercifully we come to the end of that. Let’s delve into the stories of the week. The biggest story of the week for was about a firm that we don’t talk about a lot, Morris Manning, which is kind of a, I mean it’s not totally fair to say regional, but a firm that has

Kathryn Rubino:

Midsize

Joe Patrice:

Real Southeast main presence has some other offices, but Morris Manning Amwa 200 has lost about a third of its attorneys over the last little run to a bunch of other firms. Similarly for slightly larger situated firms had another big, big blow from say Shaw Seyfarth got in there and grabbed a bunch of people and now apparently Morris Manning is having merger talks.

Kathryn Rubino:

I mean, not super surprising. One of the primary assets that a law firm has, it’s its personnel which is inherently mobile. You could leave them at any time and partners leaving has certainly can cause almost like a run, you do a run on a bank and if law firms don’t know how to manage that and have real plans in place in order to reassure the partners that are left, it’s either leads to more partners leaving or the sort of merger talk, which I guess is part of the plan.

Joe Patrice:

So my takeaway on it was this does kind of underscore that the run on mid-sized markets is on, I think we traditionally had the bigger firms headquartered in bigger cities, even if they’re taking on work in other places, they like home base in these bigger markets leaving some mid-sized, mid-sized markets to play amongst themselves. That seems to be disappearing, whether it’s other small mid-sized firms trying to aggressively grow into new markets, which we’ve seen quite a bit of as some of the big players have been taking over these traditional firms in markets across the country or if it’s major firm moving into a city that is up and coming on Atlanta where we’re talking about here folks are that area, that space is no longer a safe space for you to cultivate a big but not huge practice and the consolidation is continuing Now, I don’t know as though that’s, I’ve never really thought that that’s necessarily the smartest move.

I think there’s some good studies. One that who did it, I think M’s Intelligence Group did it several years ago and I wrote about it at the time that looked back at all the mergers in law firms and whether or not these have ever actually paid off and in a lot of ways it’s chasing growth that never ends up materializing. You get bigger but then you lose a bunch of people because of redundancy. Then the culture changes and a bunch of people leave and you’re left back basically where you started. If that’s the case now, obviously chasing new markets and new practice areas makes that a little bit different. You aren’t going to have redundancies if you’re moving into these new offices, but is it something that you can sustain in these new places? Do you by bringing in a new brand name, lose some of the institutional cachet that the old place had? Are you going to have billing issues? I mean you’ve got now, especially if you are a firm that plays in a major market as well as in one of these smaller markets, what are you billing people out at? Are you sending, is it kind of a colonialist situation where you’re sending work back to the metropol? If you’re doing that, then clients who are used to paying at a certain mid firm and regional price point

Are now being forced to pay at a higher price point. Do they leave over that? There’s a lot of issues with the merger world that I really worry aren’t necessarily the best.

Kathryn Rubino:

I mean I think it’s interesting that you are very cautious at the very minimum about mergers because we’re seeing more of them this year. We wrote something about Fairfax Associates did a report and in the first six months of 2025 merger activities up 21% over the same time in 2024 and not just sort of regional markets. There’s also a lot of bigger name mergers that are happening in the first half of 2025. Herbert Smith completed its merger with Kramer Levin. It seems as if big law is still very much in consolidation mode.

Joe Patrice:

The McDermott and Schulte thing is

Kathryn Rubino:

Moving forward. That obviously has not been completed, so we counts in the second half accounting for that particular report

Joe Patrice:

That I think it is more of a like and a merger, which is the one where it probably will work out, although they’re going to have some redundancy issues. I feel that the expansion into the new markets one though, who is it? I think it’s Slaughter in May. A who of all the magic circle firms, the one who doesn’t have aggressive presences outside of the uk and a lot of that I gather is that they have embraced the idea that the smart play is to have strategic partnerships and referral networks with local firms and other places rather than to try and take it on themselves. I’ve always thought that they might be onto something that when you move into a place, I mean that is the big splash, but are also taking on some costs and that can lead to problems

Kathryn Rubino:

For sure, but I also think that part of this sort of urge to merge is also motivated by these bigger and bigger partner paydays that the lateral market is for partners is very different than it was 5, 10, 20 years ago. Lots of firms that would never consider lateral partners all of a sudden are making big hires and having to pony up big paydays in order to lure those folks there. And if they aren’t ready to do that in the lateral market, what they’re seeing is their homegrown talent is finding someone who will pay them upwards of 20 million in order to take that book of business with them. And given that reality, making these sorts of mergers to sort of increase your leverage, increase your ability to make these big paydays, to lure that talent be back, to keep your homegrown talent or to encourage more folks to join your practice, it’s kind of cyclical. It’s kind of a chicken or the egg situation when you’re trying to figure out what is causing this difference in how big laws operating.

Joe Patrice:

But they’re in conversations with a AM a 100 firm apparently, and we’ll see what comes of that.

Kathryn Rubino:

Yeah, I mean it may not be a merger in the sense that I don’t think that their name is getting added to the end of any letter head and it may even be the situation where just there’s a mass set of lateral offers being made to their attorneys and then that firm will slowly dissolved. That’s also I think something that people were hypothesizing as well.

Joe Patrice:

Yeah, I think that they claim to be in advanced discussions for the mergers, so my guess is that it will probably be that these will become additional offices for some more national firm.

Kathryn Rubino:

Yeah, one insider said though that they thought it was more going to be the higher away model, so we’ll see.

Joe Patrice:

Yeah. The next is also a Georgia connection. I didn’t really realize this is Georgia Day. Maybe because the other story is we’ve been talking a bit dating back to the in legal tech circles. Everyone just knows the Avianca thing, but that’s the original case in New York where some lawyers used chat GPT to make, find some citations for their brief. The brief was very on point. It produced cases that were basically exactly what they wanted and that’s because they were fake then

Kathryn Rubino:

That looks good too. Good.

Joe Patrice:

Well, right. Well, and that’s the thing with these cases. That’s the big thing with AI as a law tool. This is just kind of an aside before getting into the real story, but is a real ask kisser AI is, I mean it doesn’t want to tell you you are bad at things and so if you ask it a question, I need a case that gives me this outcome, it will find that case even if it has to make it up because it wants you to be happy. And that was kind of the problem in that case. In that case, of course got worse and worse because as the deception starts getting found out, they not knowing it or better ask the chat GPT, seriously, where is this case? The chat GT is like here and then wrote the case for them because it didn’t want to admit that it didn’t exist, so they got in trouble. They got fined five grand for, it seemed very small at the time, but also it was very early. People were just learning

Kathryn Rubino:

And the public embarrassment lives on

Joe Patrice:

Public embarrassment lives on one might’ve thought this was the end of it. It has not been the end of it.

Kathryn Rubino:

Nope.

Joe Patrice:

We have had constant AI hallucinated screw up at the law firm level, but at least they’ve all been at the law firm level. Somebody on the other side

Kathryn Rubino:

Catches it or litigants level. It might also

Joe Patrice:

Fair, let’s put aside contracts. I mean the harms with contracts are different because the other side signs it, so then it becomes

Kathryn Rubino:

More, I meant that the d oj, you wrote a thing that

Joe Patrice:

It may not be law firms also that was also a litigation, right? That’s what I but yes. Yeah, but they’ve all been caught. The other law firm on the other side of the case is catching them when they do their research. Judges are preemptively finding these and calling out, Hey, I tried to find this and it doesn’t exist. That’s been the case so far, which has allowed a lot of this AI hallucination stuff to be something that is kind of enjoyable eye rolling more or less on our side, but I have been beating a note of caution that someday this is going to spill over and it’s going to spill over in a case probably where there are power dynamic issues between the parties where one side may not have a lawyer who is going through and capable of site checking and it’s going to involve a judge who doesn’t care or it’s a very seemingly easy case, so they aren’t really taking the time and energy to follow along closely

And then it’s going to break contain, and it’s going to break contained in a way that’s going to hurt people and we might not even know it’s hurting them because they’re not going to be the sort of folks who are able to publicize that they got their rights taken away in some landlord tenant case because of some made up Mario versus Sonic case or something along those lines. To bring us back to that in Georgia, we broke the threshold. Now it got caught at the appellate level, but we broke new ground and in this instance it was a divorce, a key one of sorts of cases where maybe not both sides have the same resources to fight it. A husband and his attorney filed their motion and included a proposed order For those of you who aren’t litigators and on the transactional side, a lot of times what’ll happen is if you file a motion, especially if you’re filing a motion, you don’t think the other side is particularly sophisticated, but you file the motion and include as an addendum, here’s what we think your order should look like.

Judge and judges are in those sorts of cases, are usually very happy to just hand write their signature on it and a date and just say, yeah, the one you filed sounds good to me, and then it becomes the order. In this instance we had that, it was a order prepared by the husband. It was an order prepared by the husband on the strength of the brief. The brief included fake cases. These fake cases then are called out eventually by the other attorney, the attorney for the wife. This gets to the appellate level. At the appellate level. The husband files a new brief. It includes 11 more new fake cases.

Kathryn Rubino:

I don’t know that there’s been any discipline at this point yet, but doubling down on the fake cases when you’ve already been people like, Hey, there’s a problem. You have fake cases and instead of making sure that you’re dotting your T’s and crossing your i’s on your appellate brief, you respond with more hallucinated cases. That’s real bad.

Joe Patrice:

The appellate panel names the husband’s attorney full name six times in their order, which certainly sounds like they’re signaling, they’re ready. They’re ready. They’re signaling to somebody that needs to happen. It was interesting that they held to formality by just referring to the district court rather than also writing down several times the judge’s name, which seems like that probably is

Kathryn Rubino:

Also true

Joe Patrice:

More who needs it,

Kathryn Rubino:

But at least the judge didn’t double down. The judge made the initial mistake but did not in the appellate brief or in subsequent justification to be like, here’s more fake shit.

Chris Williams:

Yeah. Is there really no way for someone to include in the prompt limit the responses given to actual cases

Joe Patrice:

To real things?

Yeah. Well, this goes to the issue with using what we call consumer facing AI versus some of this legal specific ai. There’s a lot of money being spent at the Thomson Reuters and Lexus level to make sure that the AI that they are including in their products to lawyers are built with sorts of guardrails that lawyers need such that the AI itself understands not to give you stuff that isn’t real. That also is supercharged of course, because trained on the back files of Thomson Reuters and Lexus, which are extensive, but, but that’s the issue. And now that then opens up the corollary access to justice issue, which is as these ais get better, because Lexus, those sorts of providers are putting tons and tons of money into them, they are going to be very, very expensive. And we start entering at that point an arms race with the use of AI itself because there is some mood among the legal tech world that hey, AI could provide gains in the access to justice world.

Se litigants are able to utilize it to find things, whatever, but with the risk of hallucinations and so on, as the only versions of it that work are super expensive, then you’re right back where you started, if not worse off. And that’s the other concern. Yeah. But the check on it has always been that at least the judges, if not the adversarial system itself would be able to stop it. And it did here in that the wife’s lawyer did catch it and the appeals court did stop it, but this is a new line. We crossed another mile marker here now that we have a judge who actually has rubber stamped.

Kathryn Rubino:

I mean I think we crossed two the doubling out in the appellate brief in the first instance and then also,

Joe Patrice:

No, no, no. Remember the original instance of this involves somebody doubling down because they were too stupid to stop themselves. So I think we’re definitely, that’s not new ground, but yeah, a judge not catching this is a problem and

Kathryn Rubino:

Yeah, I think we’re going to find more and more clerks have the assignment print me out. Yes. With paper

Joe Patrice:

Copies

Kathryn Rubino:

Of every case cited and when they can’t find it, then that was something people used to deal in the nineties, two thousands, was that you all had these partners or judges who didn’t want to deal with electronic anything. You make binders and we’re going to come back to this, the only sort of short foolproof way,

Joe Patrice:

But this is my issue. That’s the big law world. There’s a lot at stake or whatever. And while there’s also a lot at stake in a random divorce in Georgia, it is also the sort of case that the judge is going to say, I’m not going to dick around with having somebody print up a bunch of cases. And that’s the concern because now,

Kathryn Rubino:

Right, but I’m sure we talked about technology solutions. I’m sure it’s a lower price point to create some product that grabs from reputable locations, Lexus, Westlaw, all that kind of places to append them to something so that judges can use these sorts of technologies in order to hit a button to make sure all the cases exist. And here they are, and I think that’s what you’re going to find, and I think that there’s probably a market for it and for appellate litigators or just sort of trial litigators as well to be like, let’s just triple check. Is there a button I can hit on some program that I already own some upgrade?

Joe Patrice:

I mean, legal research is going to get more expensive and obviously judges usually are in a position to get better public sector deals, but other attorneys, this is an industry that’s getting more expensive,

Kathryn Rubino:

But what I’m saying is that is less of an AI investment to be able to hit a bet and say where are the cases? Where are they located? Is a much more discreet,

Joe Patrice:

I would say no, I would say that all of the major providers in the legal research area, AI is integrated directly into what they’re doing research wise because it’s too big of an investment not to make show age. I would compare it to the move from Boolean searches to natural language where you’re just like, I just wanted to use my old Boolean search, but now that’s all set

Kathryn Rubino:

Up to There was a toggle for a very long time.

Joe Patrice:

Yeah, yeah, right. Well, so now a lot of them are putting the AI in there and it makes some sense. If you’ve spent $600 million on an AI company, you don’t want it to be this little one-off on the side. You want it to be the lens through which everything works, and that means you’ve got to pay off that $600 million and the additional investment and that means you start charging people more. And that’s also an issue. We just saw basically the third big competitor to Thomson Reuters and Lexus vle just got bought for a billion dollars. And so yeah, the consolidation is real and it’s expensive.

Chris Williams:

So my contribution is I think that we need to stop calling it AI hallucinations. I think, I feel like I’ve said this earlier, well, not in the podcast, just on different occasions, if I was writing a brief and I did this and I wanted to get away with it, AI hallucination is one step up from citation. Oopsie as far as a way of phrasing what you did, why doesn’t this considered to be fraud or lying? Because at the end of the day, the author of the legal document is not the AI program. It is the lawyer, the lawyer put in inaccurate information and pass it off as being their work. There needs to be some way we need to talk about this in terms of fraud or some other way that draws attention to the actual agent, which is the attorney and not the program that was used in the writing of the thing.

Joe Patrice:

Well, that’s a great, and even if the problem presents itself because the program hallucinated, you’re absolutely right, the blame should not be on the computer program, which is just doing what it’s supposed to do.

Chris Williams:

It is not the author and even if it’s doing what it’s supposed to incorrectly to blame the hallucination on AI is a jazz hands trick. It’s like, oh, I didn’t fuck up When cI signed this document. It was chat GPT. And I feel like as people that our job is reading and being able to be able to place the blame of what’s happening every time we talk about this being the fault of a program, some lazy lawyer who didn’t do their job gets off the hook. That’s

Kathryn Rubino:

Actually a great assignment for you, Joe and the legal tech writers journalist Roundtable. Let’s come up with a term that is sufficiently scoldy

Chris Williams:

Picture

Joe Patrice:

Wrong. I was going to say that

Chris Williams:

If I was arguing the case and I just put down a fake name, not because of ai, I just made some shit up. Why wouldn’t that be fraud?

Joe Patrice:

Well, I agree with, I actually think the word you used a minute ago was the right one, which is lazy. And even dating back to the Alianca case when people were calling for all sorts of Skynet and the robots are destroying everything, I was like, no, this is just laziness. It’s no different than getting a bunch of cases that are red flagged and not checking up on that. You still, even in traditional research, you’re supposed to check and make sure the thing you’ve got works. It’s

Kathryn Rubino:

Like a particular variety of laziness though.

Joe Patrice:

Yeah, it’s accelerated laziness, but it is nonetheless laziness.

Kathryn Rubino:

AI assisted laziness.

Chris Williams:

I get what you’re saying and I get that it is funny and inst, but laziness itself doesn’t sound like, I don’t know, like a malevolent isn’t the word. No, but problematic.

Kathryn Rubino:

Yeah.

Chris Williams:

What would be the consequence if someone were to just wholesale make, create like a, oh, I can do this because of a money tree versus Bush 1979 and just wrote that and then somebody was like, Hey, you made this up and it didn’t have an AI program or Nessus to push off some of the blame for it.

Joe Patrice:

Well, right. If somebody is making things up because they are intending to defraud the court, that’s obviously a willful thing that causes a bunch of higher level problems. But if you just put in cases that you failed to site check correctly or ones that came out of this sort of system that’s just you being lazy and you used the word lazy first, but I jumped on that lazy one because I think one, it is going to become more knowingly as these stories become more publicly available. People know that their laziness, it’s the negligence versus reckless think is a better at certain

Chris Williams:

Point because you’re knowingly using a thing that is prone to error and not checking the error. I feel better about using reckless than lazy.

Joe Patrice:

Exactly. And the second issue of it is laziness is a real insult In an industry where we bill a hundred hours a week, I feel like at that point you should feel bad about that. That is not being zealous. Alright, well that was a good one. This one, it could have been a longer story, but it doesn’t need to be because we’ve already talked about it to death.

Kathryn Rubino:

A lot of these things we’ve mentioned,

Joe Patrice:

I have overlapped. Supreme Court term is now over, they can’t mess

Kathryn Rubino:

Us up more this year.

Joe Patrice:

This year they can, this term they already still have because still shadow docket stuff happening. However, the big term ended, this story I focused on just because I thought it was particularly galling. So John Roberts followed up the last day in which they started taking away rights right and left. He rolled into the fourth circuit a conference to talk to them about it and reiterated that any criticism that the court gets, ultimately it’s just people who are losers who have lost their case and he doesn’t really think it’s really all that important to pay attention to. So dissent and scholarly criticisms, none of that stuff bothers him or his colleagues because scoreboard,

Kathryn Rubino:

It is definitely an act of sort of linguistic violence to cabin all of this legitimate criticism and just say sore loser. But he doesn’t care.

Joe Patrice:

Well, right? He does not care. And the only reason I really zeroed in on this story was because it, it’s a follow on from a story from earlier in the year, which is that in the annual report that Roberts has to put out where he almost never actually delivers an annual report, but just kind of likes, these are some random thoughts. I had some random thoughts. Yeah, it’s like a Christmas letter from one of those families types of perform Christmas letter. He’s like, oh, we all laughed with Justice. Alito found that in his hamburger whatever point is in this year’s version, he went off on how criticism is of the judiciary is important lip service. But then he goes into great detail about how, except here’s all the criticism I think is illegitimate if it’s directed at me up to and including claiming that people criticizing him on blogs is the equivalent of in the civil rights era, people burning crosses on district judges lawns.

Kathryn Rubino:

Again, rhetorical violence,

Joe Patrice:

A connection that seemed a bit strained. But that story I recalled when I heard his remarks at this fourth circuit thing, it really brings home he does not think that any criticism or effort to try to deal with substance of law beyond just, I’ve decided this and I refuse to brook any other thoughts about it, is illegitimate. It is deeply dangerous at a time where the rule of law is in trouble from external sources. I think we’re often overlooking the internal to the court problem, which is that you have

Kathryn Rubino:

Call is coming from inside the house.

Joe Patrice:

You have people who refuse to engage substantive criticism of their positions and they are not listening or attempting to do any real law, which you saw also, and I put this in the story, it reached its greatest manifestation in the opinion where in the injunction opinion, where Amy Coney Barrett decided to devote a paragraph to saying, and I refuse to even dwell on what Justice Jackson’s saying in dissent, won’t even bother to engage substantive argumentation against your position because I refuse. It’s a real problem for the way in which this institution functions and is probably a reason why those attacks coming from outside are getting so much purchase.

Kathryn Rubino:

And it also proves the validity of the criticisms, right? Because if someone can’t take down or answer your criticisms, then it’s a so spot that you should absolutely continue attacking.

Chris Williams:

This may be a debate philosopher brain, but I really don’t like the word criticism and how it’s become people’s go-to way of characterizing what I think is critique. And I understand critique is to be a word where it’s more along the lines of, it’s closer to an assessment where a proper critique, it’s like a long drawing exercise where you say, where a thing is strong, where a thing is weak, what work could be done upon it, what have you. But criticism is too close to disagreement, which is too close to complaint. And I feel like a lot of legitimate critiques are happening about, say, when Jackson is like, Hey, you’re talking about the significance of Textualism. But there was a point where masks weren’t considered sanitation because of stupid use of a definition. We have to go further than Textualism what appears to be a facially meaningful strategy of interpretation. And the response was, ah, you’re complaining. Like, no, she was giving a legitimate critique and it was well reasoned, but it was hand washed away as if it was some sort of ad hoc. But yeah, that’s one of the things that frustrates me about the watering down of language. It wasn’t just a criticism, it was a critique she gave. And I don’t feel like it’s giving the same weight

Kathryn Rubino:

Fair

Joe Patrice:

To the extent that you say we don’t have time to get into it here, but I do think we may be getting into it in the future. I do think there’s something interesting to be said in conjunction with a story that hasn’t really gone ripe yet, but of Justice Breyer who gave an interview where he talked a lot about leveled a bunch of these critiques of textualism and originalism that echoed a lot of what were in those decisions. And there really is a question of is that a effective or even necessary conversation to be having now, which we’ll delve into that in a future situation. But I think it hits on some of your points about the line between what you’re characterizing as critique and criticism. But we are now well over our usual time, so we’ll move on from here. Thanks everybody from listening.

You should subscribe to the show, leave reviews, all those things. To help us out, check out the Jabot Katherine’s other podcast. I’m a guest on the Legal Tech Week Journalist Roundtable For more about AI, because it comes up almost every week, you should be listening to other shows on the Legal Talk network. You should be following Above the Law, reading Above the Law dot com, and whenever you can to read these and other stories before we talk about them. You can also follow on social media above law.com Blue Sky. I’m at Joe Patrice. She’s at Kathryn one. Chris is at rights for Rent. And with all that said, we’ll talk to you all later. Peace. Peace.

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