Lawyers and precedent instead of first principles
This article is about AI making up nonsense for lawyers, who blindly shovel it into their court documents without even verifying that it mentions real cases, let alone that the cases actually support their arguments.
Lawyering is not about arguing justice or subtle nuances in written laws. It’s about looking up past cases in law libraries to see what some court ruled 50, 100, or 200 years ago, or even what some English king ruled 500 years ago (you think I’m joking? They still reference the Magna Carta from 1215 sometimes, 810 years ago, and that was just a bunch of nobles extorting King John’s signature, nothing judicial about it). Those case law libraries are the precedent which is the backbone of US common law. (But don’t think other legacy systems are better. They pull the same stunts, just dressed up differently.)
One of the most basic court rules is that lawyers are responsible for everything they sign their name to. They have assistants doing the research, finding useful cases, and writing them up, but the lawyers have the duty to verify all that by themselves.
They don’t, and I think I know why. With actual hired help looking up actual cases in expensive case law libraries, they’ve been able to get away with relying on what they sign their name to without actually verifying any of it. Along comes AI, these lawyers smell a way to get faster cheaper results without having to deal with imperfect humans, and treat their output as being just as reliable out of habit and because computers don’t make mistakes. It just ain’t so! The AIs are notorious for just making stuff up which looks plausible yet doesn’t even exist. No such case, no such parties, even no such court, just complete nonsense. Sometimes they cite a real case but make up the quotes and misinterpret what the case actually said.
One lawyer commented that the problem is partly from the pressure to get results. He very nearly had his finger on the problem.
And also, I would love to see a tool that could detect when court holdings were no longer applicable. A couple years ago, I ran into a long string cite here at Volokh for a proposition. It even included a Supreme Court case. Except that almost the entire string was invalid because Congress had amended the relevant statute in response to the Supreme Court decision, and every cited case, except for one (from a different Circuit), was decided based on the old law. That sort of thing is going to be much harder to detect.
Laws are reinterpreted all the time, and they are legislated away or amended into or out of relevance all the time. These AIs are trained on data as of a specific date, and even when they provide a real case with real quotes and the correct summary, they don’t take into consideration anything more recent, whether it’s a new court interpretation, legislatures changing the law, or outright repeal.
Charter redress avoids this problem by having no precedent; everything stems from the charter itself and its definition of self-control (“the unalienable right, and duty, to control self”). For a basic example, the charter says “We, the people, resolve self-control disputes ...”. The charter is a voluntary agreement; if you use the charter to right wrongs, you have the duty to help others right wrongs. You can’t demand others help you and then refuse to help them.
If Alice complains Bob did not honor a contract, or Bob stole from Alice or hurt her, Bob has a duty to resolve that dispute. Not judges, not legislatures; Alice and Bob, personally, have that duty, which is why I say they must negotiate face to face. Well, Zoom or telephone calls or anything they agree to will work too, but they cannot pass the responsibility off to anyone else. They can have advisors out the ying-yang, translators, witnesses, accountants, detectives, forensic labs, anything, even someone to do their negotiating if they are lousy public speakers or easily flustered or prone to fly off the handle. But they are still personally responsible for correcting errors and misconceptions and speaking up when they disagree with what someone says. They cannot duck personal responsibility and accountability.
If Bob ignores Alice’s complaint, or meets her but refuses to discuss it or admit even the clearest evidence, he is not honoring the charter he agreed to and its duty to resolve the dispute. He is acting like a spoiled brat who won’t do his chores; their duty as the adults in the room is to send him to bed without supper and do his chores themselves. That brat is “malingering” in redress lingo, and Alice’s duty as the adult in the case is to write the verdict herself, noting Bob’s malingering and all her supporting evidence, because ultimate enforcement comes from the public.
None of this requires legislation. Legislatures can make up policies, such as Alice has to give Bob 5 days to respond, but even those are not set in stone, because other parts of the charter make it clear that if people can come up with better policies, they replace the legislative policies.
There is no precedent. People will certainly copy and paste common phrases and derivations, but legislatures can’t change them.
Imagine how much simpler the US judicial system would be if lawyers had no precedents to research in case libraries and had to argue just the law itself and the Constitution. It wouldn’t rid the US of lawyers, but it would allow ordinary people to understand laws and eliminate a lot of rancor when people are convicted for reasons only found in expensive law libraries.