Roberts Explains That Artificial Intelligence Can’t Replace Judges Because How Would Billionaires Fly An AI To Luxury Resorts Anyway?

Episode Notes

Transcript

Joe Patrice:

And so we begin another year.

Kathryn Rubino:

Another year

Joe Patrice:

Here at Thinking Like A Lawyer.

Kathryn Rubino:

I think it’s technically our second podcast in the new year.

Joe Patrice:

That’s true. But that was a backward looking podcast. We talked About the biggest things ever

Kathryn Rubino:

Forward Christian

Joe Patrice:

and now we begin a new year.

Kathryn Rubino:

It’s true. It’s true. New Year, new you.

Joe Patrice:

No, it is the same Me that’s Joe Patrice from Above the Law. I am joined by Kathryn Rubino and Chris Williams. How are you all?

Kathryn Rubino:

Good. Good.

Joe Patrice:

This show is our weekly look at the stories from the week that was in legal, and so here we are. But of course we always begin with a little talk, our small talk section.

Kathryn Rubino:

I actually have a follow up to my small talk.

Joe Patrice:

Go for it.

Kathryn Rubino:

Last episode, I talked about my poor customer servers at the Taylor Swift official website. Well, I’ve have follow up. They are refunding my money and still shipping me the products. Wow. Late. I still haven’t gotten a shipping confirmation number, mind you. But eventually I will be made whole.

Joe Patrice:

Wow. More than whole.

Kathryn Rubino:

Sure. Yeah. But I feel like that’s the minimum they could do. I mean, I literally ordered it over a month ago.

Joe Patrice:

No, that sounds great. So

Chris Williams:

I didn’t know we had a listeners because that’s the only thing I made. That’s the first thing that popped to mind. It was the heard you on a podcast like, wait, I ignore this president’s order. The PR team was like, get on this stat,

Kathryn Rubino:

That order they were doing.

Chris Williams:

You got to shake off this bad review

Kathryn Rubino:

Or was there you go? Well, I think it was a much larger problem than my order and it was a massive issue that they had that they’re trying to make. Right. Yeah. Good follow up. Good

Joe Patrice:

Follow up on. Good for Taylor there. Anybody else?

Chris Williams:

Speaking of good follows up. Yes. Have y’all seen the Kat Williams Shannon Sharp interview?

Joe Patrice:

Amazing.

Chris Williams:

Oh my God, it was wonderful. So my undergraduate thesis, I did it on a comedy and speaking truths of power. My question was, so the Greek word for it is a Pia speaking truth of power. The person that does it is a pite. And my question was, can specifically, can black comedians be para, one of the context is talking about racism. It’s kind of like quotidian every day. There’s an old age Chappelle joke. He’s like, oh, apparently black people are getting beat by the police. Like fla cat, like pancakes or something. But then there’s also the issue of you spill. Can you still speak truth to power when power is diffused? We used to be in the context of a king, but when it’s still a issue of a systemic violence, there’s no figurehead for racism outside of Trump, but

How do you do that? But it was cool to see Guy Williams do what kind of felt like speaking truth of power is maybe not as much as he was clearing his name. They might be related concepts, but yeah, because Ka is big in black circles. But as far as white audiences, I don’t think they’ve really seen much of them since Friday if that. Maybe some wilding out, I don’t don’t want to throw that on his name. End up on Shannon Sharp again. But seeing him come up big names in comedy like Katt Williams and Steve Harvey and Cedric Entertainer, to the degree that Cedric is a big name, it was just refreshing to see. And the internet had receipts for everything because things felt true when he was saying them. And there were a couple bars, he was like, how are you one of the original kings of comedy? You’re not the first one just throwing stack going flame at everybody. Whoever said something bad about him on the show. And it was just really cool to see. It was like two hours and 40 minutes. I sat down for it. I felt like I was watching a lecture. I was like, this is wonderful.

Joe Patrice:

Meanwhile, I was digging out of a snowstorm. So

Kathryn Rubino:

Snow. Oh yeah, snow. Yeah.

Joe Patrice:

So it

Kathryn Rubino:

Ended up being about snow. Definitely snowed.

Joe Patrice:

Yeah. I ended up being about eight inches and I managed to get myself out of it. So that was nice.

Chris Williams:

Thank God for rain.

Joe Patrice:

Well,

Chris Williams:

My cleanup included looking out the window and being like, ah, well,

Joe Patrice:

Yeah, no, it came down, but it was reasonably, it wasn’t, you know how sometimes you get that really overly wet snow that’s impossible to shovel And it wasn’t that. It was decently powdery. And so

Kathryn Rubino:

Yeah, I think that also helps when you’re early to the shoveling party. I’ve certainly anticipated rain in my past and not gotten it. And instead had very, very heavy snow to deal with.

Chris Williams:

Did you salt?

Joe Patrice:

Yeah. Yep, yep, yep. Or fake salt, calcium, something or other. Some compound whose job it is to melt snow.

Kathryn Rubino:

I use that, but not kill all your future crops.

Joe Patrice:

Theoretically not kill all

Going to, yeah. Anyway. Okay, good. We had a good hefty small talk there. Alright. Biggest story of the week, the Supreme Court. Well, not the Supreme Court. The Office of the Chief Justice of the United States has an obligation to report at the end of the year. It’s sort of like their state of the Union address just for the judiciary. And what do you think of when you think of an annual report?

Kathryn Rubino:

These are the problems we’ve tackled. These are our successes of the year. That’s successes,

Joe Patrice:

Failures, challenges, plans

Kathryn Rubino:

For future looking forward. Yeah, I think that’s all

Joe Patrice:

Accurate.

Chris Williams:

Specifically of the year wasn’t the main thing from that. From 1904.

Joe Patrice:

Well, okay, so this year he decided, so this year he decided to talk about ai, which to the extent it has some tangential, it is a big story in legal tech, I suppose. That said, he did not really focus on that. He instead focused on whether or not judges would be replaced by ai, which he said they wouldn’t good for him to think that his own job is super important and can’t be replaced by ai. But in a world where in a world, right, in a world where two Supreme Court justices have been tagged with taking hundreds of thousands of dollars in gifts and bribes from people, and we’ve had nationwide injunction problems and there’s supposedly a new ethics code that nobody trusts. You would think that maybe these issues would show up in the report. However, he instead decided to wax philosophic about whether or not he can be replaced by a robot anytime soon with a, as you pointed out, Chris with a, it wasn’t even, Hey, here’s what’s going on in ai. It was a series of digressions into the history of the typewriter. How scriveners clerks used to be scriveners who had to take shorthand. It just goes on it. Drones on and on about all this stuff. I don’t know, it felt like what I think it really is, which is he has

Kathryn Rubino:

Distraction.

Joe Patrice:

Yeah, utter contempt for the audience, for the American public. And he has ever since, about three years ago, he tackled this job with seriousness and he outlined a series of, at the time, important issues dealing with ethics and with harassment in the workplace. He then proposed lackluster to mealy mouth, somewhere in that zone, responses to it and got dragged. And since then, his annual reports have only been these sorts of

Kathryn Rubino:

Theoretical kind,

Joe Patrice:

Not even theoretical, just digressions. They read that person who sends you a Christmas card that has a long thing in it that’s like, well, Billy started school this year. They read that kind of a

Kathryn Rubino:

Submissive that actually sounds more relevant to the year that it was as opposed to his thoughts on the typewriter.

Joe Patrice:

Yeah. Well one thing that Ellie Misal, former co-host of this show pointed out in his writeup of this story was that the true irony of this, of course is as Roberts goes, well, no one could ever replace the really serious nuanced work that we do as judges. The irony is this is the same judge who’s used his entire Senate nomination hearings to say, judges just call balls and strikes. We don’t really get into these.

Kathryn Rubino:

Right. Umpires have literally been replaced by technology. Right,

Joe Patrice:

Right.

Kathryn Rubino:

Seems like maybe that was a bad analogy, friend. But also I think that analogy was particularly problematic and really did a lot to erode the general public’s anger towards originalist sort of judges. It made it seem like, well, this is just what the philosophy would say. This is just the way it is, as opposed to a very deliberate political set of ideals that are being advanced. These are policy goals that are being advanced through a certain set of court decisions and calling it walls and strikes as opposed to what here he’s actually doing, I think really had an impact on how the public perceived the role of the judiciary for a long time.

Chris Williams:

I just really wish somebody, when he said that, it was like, you know how often umpires cheat? I really think it was, this should have got nipped early on in the bud. This should not have. It’s been a talking point later. We know many people, money people bet on these games. You want to use a thing that is a major aspect of gambling in the US as the standard for what a perfect judge is. Are you fucking kidding me?

Joe Patrice:

Nobody mentioned

Chris Williams:

That decades

Joe Patrice:

Ago. So yeah, it is clear that the judiciary does a lot more at this juncture than that, and both good and bad ways. It is ridiculous to just plug in Blackstone’s commentaries or whatever and say, this is what the law is that also Clarence

Chris Williams:

Thomas being paid on the table for the last 25 years. I don’t know how easy we can be this clear bit better now than this earlier.

Joe Patrice:

But it’s also true that the take on AI was fairly somo too. I mean it read as somebody, so I cover this legal tech space. I know we don’t talk about it on this particular show as much that aspect of my beat, but I meet with these people who are developing these algorithms and trying to apply them to law. And the writeup that Roberts provided read what people talked about in 2013. It seemed wholly divorced from where AI is right now with the possible exception of, he talked about hallucinations, which became fairly important this year. But they became important not because the tech is bad, but because

Kathryn Rubino:

The inputs

Joe Patrice:

Lazy. Lawyers use tech badly. So they tried to use consumer facing generative ai, which is not going to be backed by good data and then they’d refuse to check the cases. So I mean, that’s the problem. And that has nothing to do with the technology itself. So I dunno,

Kathryn Rubino:

I’m not surprised that John Roberts’ tech take is from 10 years ago. That actually seems pretty advanced for every other thing I know about him. Fair. If only he was pushing us back 10 years.

Chris Williams:

I just want to say, shout out to the one person who was so excited on the genealogy if AI that they were like, Ooh, I wonder what the chief justice thinks about typewriters.

Joe Patrice:

And that is the thing,

Chris Williams:

Because if you want to talk about judges being out of touch and being this straight, you like, oh, I’ll talk about a typewriter. That’s basically the same as chat GPT.

Joe Patrice:

It was unreal.

Kathryn Rubino:

And that’s really what people would hear from me. Not the thousands and thousands of words that have been poured in major publications, impugning the reputation and ethics of your associate justices.

Joe Patrice:

It really is. If the state of the union address came around and the president took the podium and just talked about the theme for the Easter egg hunt that year, talking about the least important dumbest thing that the office of the president can do,

Chris Williams:

It really is embarrassing. Teen Vogue could have done a better review

Joe Patrice:

Teen Vogue Dean,

Kathryn Rubino:

A better

Joe Patrice:

Teen Vogue. Teen Vogue’s like a quality publication. Yeah.

Chris Williams:

They’re like the ProPublica of teenagers now. Yeah.

Joe Patrice:

Yes. I think that’s a weirdly fair analogy.

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Chris Williams:

Up because he acknowledged racism exists.

Joe Patrice:

He did. He said racism existed. So they purged him. He, however, names himself as a co-founder in this

Kathryn Rubino:

Definitely how you want one of the most important judicial philosophies to be described. Right. Well, we kicked you out when you acknowledged racism.

Joe Patrice:

So he’s had an interesting couple of years. Anyway, he wrote a piece in Vols blog where he said that Clarence Thomas was incorruptible and the best Supreme court justice who’s ever served.

Kathryn Rubino:

Oh. So that’s how he got back in with those people.

Joe Patrice:

So this is ridiculous in a lot of ways. So fuck’s not

Chris Williams:

Good Marshall.

Joe Patrice:

Yeah. Well, right. He’s against all of these folks. He says he’s better than Scalia even. He talks about how, because he’s just so originalist,

Chris Williams:

He really trumped up that I have a black friend card. That’s what this was. Whenever somebody, this was like, this was the Fed so version of, I would’ve voted for Obama a third time.

Joe Patrice:

Right. So at the end of this bit, the end of this, that’s great

Kathryn Rubino:

Analogy.

Joe Patrice:

At the end of this bit though, he goes on a run about how Clarence Thomas grew up poor. So he has every right to take money from wealthy people because he grew up poor and Congress doesn’t pay judges enough. So therefore taking bribes is cool.

Kathryn Rubino:

Look, it’s that last part that really doesn’t really undoes all the work of, maybe this is just a redistribution of wealth and that’s something maybe. No, no, no. Oh, so close.

Chris Williams:

If this is now the standard for historically disenfranchised black people who grew up poor, this is what it takes to make it for them to take from wealthy people. We need to have a different conversation about how we talk about rioting and looting because there’s been a lot of coverage that would suggest being poor and black is not enough to take from the wealthy. I’m just saying historically, this is new. There’s cherry hills right across the street from me. If this is the case, me and my friends are rioting.

Joe Patrice:

He gets immediately mocked by all corners. I take a little bit of an outsider stance on it. I say that,

Kathryn Rubino:

Well, you don’t think it’s good. So it’s not that outsider. Well,

Joe Patrice:

Right. So I don’t think a lot of people said, has he lost his damn mind? Which is certainly a possibility I hold out there, but I thought it was almost bad satire. He was trying to do a bit. It’s

Kathryn Rubino:

Not that good. It’s not that

Joe Patrice:

Good. So over the top that you can’t really believe that this guy is serious. He’s clearly doing a bit Right. You

Chris Williams:

Think he was swift?

Joe Patrice:

I

Chris Williams:

Like Jonathan swift.

Joe Patrice:

Yeah, no, I know what you mean. Yeah. Not

Kathryn Rubino:

Taylor.

Joe Patrice:

I think it’s read like a modest proposal kind of a situation. Right. So anyway, so that was what happened first. He has since been responded to the criticism by arguing that no, no, he really is the best. And he wrote a follow-up, which leaves me now wondering if maybe he is serious about this. Although

Kathryn Rubino:

In his certainly, he’s definitely being serious. Joe,

Joe Patrice:

In his follow-up though, he talks a lot about how one of the virtues of Clarence Thomas is he is modest and not much of a traveler, and the initial allegations were about how he took hundreds of thousands of dollars in vacations, given that, putting the words

Kathryn Rubino:

Transport, he is a modest show. He had his rich friends buy him at rv, so he could be Well, that’s much more of an the people method of transport.

Joe Patrice:

I’m just saying that Calabrese didn’t have to Flagg that language. Right. By doing it. I feel like he’s almost lamps shading. Like this is clearly crazy. And I want you to understand that this is crazy.

Kathryn Rubino:

I think you’re thinking too much about this. I

Joe Patrice:

Know

Kathryn Rubino:

He’s breaking my mind. You’ve come across, you’re through the Rubicon, you are through the looking glass, over the Rubicon, whatever it is. No, stop. It is what it is. So when somebody tells you who they are, believe them.

Joe Patrice:

Yeah. It’s just so laughably bad as a,

Kathryn Rubino:

That’s what it is. Yeah. It is not more complex than just bad. Well,

Joe Patrice:

One of the interesting aspects of it that needs to

Chris Williams:

Be somebody’s tattoo, which is not more complex than just bad.

Joe Patrice:

Perhaps this was unintentional. But I do think that there’s a theme that happens in this work, especially where it’s saying that he is both incorruptible and the best. So when it comes to this question of whether or not Clarence Thomas taking a bunch of bribes is bad,

Chris Williams:

Which isn’t a question, by the way.

Joe Patrice:

No, it is a question because the Supreme Court basically legalized bribery in the McDonald case. So as a criminal matter, as a colloquial matter, we can call them bribes as a criminal matter, it probably isn’t one because there are no laws anymore.

Kathryn Rubino:

Well, it’s a bribe.

Joe Patrice:

But in the colloquial discussion about bribery, you say, well, but he didn’t, Clarence Thomas wasn’t about to roll out with a, let’s recognize. Right.

Kathryn Rubino:

He wasn’t joining Sotomayor in the decision, but for the bribe.

Joe Patrice:

Yeah. So the argument is it’s not a but for situation. So how can this really be corrupt? Now, the flip side of this, of course, is one of us, I think it was you, Chris wrote a piece after ProPublica dug up some receipts that Clarence Thomas spent the turn of the century, the turn of the 21st century rolling around to every moneyed Right-wing interest and going, wow, it’d be a real shame if I were to retire while Bill Clinton was president. Yeah. So given that, I actually thought that what was interesting is Calabrese piece by juxtaposing this corruption point with the, he’s the best, he’s even better than Anton and Scalia. He’s the greatest of all time, kind of unintentionally prove the argument for why this is corrupt. Because no, he didn’t change his mind over it, but the fact that the right views him as uniquely better than even somebody like Scalia proves that he did.

He was giving a kind of a quid pro quo, and the quid pro quo was, you give me this money or I’ll disappear and my unique greatness will be gone, and my replacement, even at the time could have been somebody more liberal. But even if his replacement is somebody like Neil Gorsuch who’s going to rule in postdoc that L-G-B-T-Q people are protected by discrimination laws like, well, that’s a reason why you’ve got to keep me. That’s why you’ve got to keep me flush in cash and that is what we mean. And so I thought that, I thought even if it was unintentional, it was very interesting the way in which he structured this argument by juxtaposing best and corrupt. He kind of proved the argument for why this could be corrupt, even if you aren’t sure.

Kathryn Rubino:

That is more than he thought about this. Maybe.

Chris Williams:

I think there is something interesting here if memory serves, I think there’s a tendency for judges over time to become more liberal in their outlooks. I think Clarence is one of the people that if he’s either stayed as Right word or only went right word. Oh God. Yeah. So given that he’s an anomaly in that respect, I do find it interesting that one of the things he was saying was, oh sure. It would be the same if somebody replaced me with a more liberal judge. The fact that he’d just gotten more Right-leaning over time in light of protecting the right part of the judiciary in the same way that the Mafiaa protects small businesses. I just find that interesting.

Joe Patrice:

No, that’s a great analogy for it. Interesting. I will continue to monitor this situation if for nothing else, my own mental health to figure out whether or not, are you sure

Kathryn Rubino:

It’s not going to get worse than you monitor this?

Chris Williams:

Have you considered monitoring mercury?

Joe Patrice:

Alright, we’re back. This is a story that we didn’t necessarily write one story about this, but it’s an interesting conversation that’s happening out there that has legal overtones, so it’s worth talking about. We just got off of the campaign to force Claudine Gay out of her position as the president of Harvard for a lot of throw spaghetti at the wall reasons. But ultimately, most folks landed on this idea that she committed plagiarism and by plagiarism, the examples that they showed were that she quoted directly from statutes when she wrote about them, which,

Kathryn Rubino:

Ooh, that’s exactly what you’d want to do.

Joe Patrice:

Not only not plagiarism, but also I think best

Kathryn Rubino:

Practices. Yeah.

Joe Patrice:

Also basic responsibility. You can’t make up the words to these things.

Kathryn Rubino:

Right.

Chris Williams:

Well, actually you can, and that’s the standard she should have been held to just her specifically.

Joe Patrice:

So this whole plagiarism conversation is interesting, especially as it kind of intersects with law, because this is situation where they were accusing her of plagiarism, even though one of the things that key things she was doing was quoting from a statute, which got me thinking about the overlap that it has with this case that came up recently that we did write about of a law firm is suing another law firm for copying their motion, claiming that they know

Kathryn Rubino:

Their best practices,

Joe Patrice:

Claiming that they have a copyright interest in the motion, and that it was plagiarized, a motion that they had filed on the record

Kathryn Rubino:

Already can’t copyright something that’s publicly available. Right.

Joe Patrice:

Well, I mean obviously you can, right? Like a book.

Kathryn Rubino:

Sure, sure. Publicly filed. Sorry.

Joe Patrice:

But I mean, I do think that’s a good point though. I think the argument is that once it’s on the docket, it’s functionally kind of a public domain thing that this is there like Steamboat Willie, it’s there for anybody to use.

Chris Williams:

I can’t wait for the Steamboat will lawsuits because people don’t going to fuck it up.

Joe Patrice:

Yeah. They fuck it up. Think that’s true because it is very limited. You can’t just take Mickey Mouse. It’s super

Chris Williams:

Limited. They’re going to be like,

Joe Patrice:

Exactly,

Chris Williams:

I’m going to be creative and put Steamboat Mickey in red shorts. No, you’re getting sued. You’re losing your house. That’s what’s happening.

Kathryn Rubino:

No, I do think that the way that the discourse has evolved about plagiarism has been very problematic for academic standards and for legal standards as well. I think that what people are being accused of doing is what you’re actually taught. I think in practice and academia, when you’re actually quoting, when you’re talking about a statute, you need the words of the statute that remains true, even though Claudine gay does not have her job. Yeah.

Chris Williams:

It is weird when we end up splicing standards, for example, the standard of what constitutes bribery or colloquially, we know what Clarence is doing, but legally speaking, blah, blah, blah. So it’s a similar thing in plagiarizing. If a person looks at it side by side, they’re the same words. Of course, they’re copying like, duh. But it’s different in the legal setting.

Joe Patrice:

Well, so this also then spills over because one of the, it starts becoming Gotcha, gotcha, gotcha. Between all these folks, people start pointing out that Justice Gorsuch wrote a book back when he was a judge, and people are like, he quotes the same stuff here and just really mundane facts being relayed.

Kathryn Rubino:

So many ways to say the basic facts of

Joe Patrice:

A case. Again, some quotes from statutes, it speaks to how I think plagiarism, to the extent it’s an issue at all, is misunderstood as it applies to the legal context, because plagiarism is your friend here in the law. If you aren’t tying yourself to the same language over and over again, you’re kind of entering lawlessness.

Kathryn Rubino:

Yeah. You want to use the language the courts have already interpreted, not coming up with your new ones and that, yeah. One would help. You are a better lawyer when you do that.

Chris Williams:

This is not excuse for students to plagiar drives though. Just let that be known.

Joe Patrice:

Sure. So there are different issues at play in these different situations. Right. So when you’re dealing with students, whatever, it might be different. Brian Fry, the law professor also has done a lot of work on the idea that plagiarism shouldn’t be a problem at all, that it’s really bad that we artificially limit our intellectual inquiry this way. I think it’s a very interesting take. I think a lot of the criticisms are true. It seems like it’s a very ticky tack rule that is often used to punish people for no good reason. That said, I do think that a lot of the critics of plagiarism rules undersell the risk that it reinforces the hierarchies that exist in academia, that the well-known, already established professor takes from their students and doesn’t give them credit, and they get more famous. The student doesn’t get any credit right

Kathryn Rubino:

Now. Well, I mean, I do think there’s a line there too, right? I think that in works that there are correct citations, even if the quotation marks aren’t exactly where they need to be. I think if the citation is there, I’m a lot more forgiving of it than if there’s no recognition of anybody who had that idea before you.

Joe Patrice:

Yeah. I just took it as, I think there might be some reason to say that it depends on the positions of the parties. I think that if you’re stealing from somebody who’s less powerful, the student to grad student, I

Kathryn Rubino:

Think that that’s probably a lot more limited though than peers. Or what’s the power dynamic when someone’s at a research institution versus a community college versus this school versus that school. I think that that gets a little confusing and harder to adjudicate. I think when there are clear by power dynamics, if somebody’s working for you or you have that sort of a preexisting relationship, that’s one thing, but I think that it could get quite confusing.

Chris Williams:

My hot take is I think there should be more of citation. Just this was revealed to me in a dream.

Joe Patrice:

When did that one

Kathryn Rubino:

Come up? Well, there’s our new tattoo quote. This

Joe Patrice:

A dream. No, that that’s a real thing he’s referencing. I can’t remember what it was.

Chris Williams:

Yeah, it was some judge. So it’s relevant. But yeah, we need to bring back

Kathryn Rubino:

The plagiarism.

Chris Williams:

We need to bring back the prophetic and the judiciary because too much of this shit is predictable. Of course, all the right leaning judges vote this way. We need some anomalies. And who better do that in Oracles

Joe Patrice:

Or ai?

Kathryn Rubino:

Oh, there we go.

Joe Patrice:

Bringing everything full circle. Anyway, thanks for listening. You should be subscribed to the show so they get new episodes when they come out. You should leave a reviews, write something, do stars, yada, yada, yada. You should be listening to the Jabo Catherine’s other show. I’m a guest in the legal tech journalist round table. You should check out the other offerings of the Legal Talk network a read Above, the Law, that way you can see these and other stories before we talk about them here. It’s at a TL blog on the Twitters. I’m at Joseph Patrice. She’s at Kathryn one. Chris is at Writes for Rent. Most of us, I don’t think the publication, I don’t think Above the Law is, but the rest of us are all over at Blue Sky as well. Although I’m Joe Patrice over there, and with that, I think we’re done.

Chris Williams:

Peace.

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