How To Hack The Law

Do you ever idly puzzle through various ideas for a "perfect crime"? It's awkward to talk about -- you don't actually want to do them, you don't actually want to give anyone a bright idea, but they're still so interesting to think through.

The legal community is abuzz with the story of a lawyer who relied on ChatGPT to do his research and submitted a brief filled with entirely invented cases. ChatGPT just made them up out of air -- complete with names, citations and quotes -- and the lawyer dutifully added them to the brief. When opposing counsel tried to read the cases for themselves, they were baffled because they couldn't find any trace of them. The presiding judge went so far as to contact the clerk of the courts where the cases were allegedly filed, confirming their non-existence. Now the lawyer is facing sanctions; he is begging for mercy on the grounds that he had no idea ChatGPT would lie to him like that.

I know of very few lawyers who have sympathy for this lawyer. But imagine a slightly different case. Let's say that LexisNexis developed a glitch where it invented a case. If you typed in the (invented) citation to the case, it would pop up on Lexis the same as any other case -- name, judge panel, court, reasoning, everything. But the case isn't real; it was a complete invention. If a lawyer came across such a "hallucinated" decision on Lexis, I think we'd be very forgiving if she ended up being deceived and relied on the case in her briefs. Indeed, I actually wonder, in a situation like this, how long it would take the legal community to figure out that the case wasn't real.

For example: the last case contained in volume 500 of the Federal Reporter (3d) is Jacobsen v. DOJ, 500 F.3d 1376 (Fed. Cir. 2007). That case ends on page 1381. Suppose an enterprising criminal hacks the Westlaw and Lexis database* and adds another case, call it Smith v. Jones, cited to 500 F.3d 1382. To further cover her tracks, the criminal "assigns" the case to a panel of judges who are no longer active on the court, to make it less likely one of them will see it and be like "I don't remember that decision." Smith v. Jones, of course, can be about and say whatever the criminal (or the unscrupulous lawyer who hired her) wants it to. Need a precedent that appears to decisively resolve a contested point of law in your favor? Voila -- the new case of Smith v. Jones is there to meet your needs. Indeed, the diligent criminal could add one or two new precedents per volume on a range of topics, providing bespoke "new" precedent to shift the legal terrain on an array of different issues.

If this happened, again I ask: how long would it take for the legal community to figure it out? If the initial hack was undetected, could one get away with doing this? Certainly, there would still be ways to confirm the cases are not real. If one back-checked the cases back to the clerk's office, one would discover they're vapor -- but realistically, that almost never happens. We take Lexis and Westlaw as proof enough; I'm not sure I can imagine a circumstance where I would try to confirm the veracity of a case I saw on Westlaw or Lexis by contacting the clerk's office. There probably would be some other hints that the cases were suspect -- the lack of citations from other cases would be a significant hint that something is shady -- but I can imagine a crime like this slipping by us for some time. And the longer it goes unnoticed, the more these cases have the opportunity to subtly adjust the overall trajectory of law in a new direction.

It's a scary thought, no? We're very reliant on the robustness and reliability of online databases. If they start to falter, we run into seriously trouble very quickly.

* Note: I assume -- and desperately hope -- that this is difficult-to-impossible to do.

Journalistic Defectors

One of the more dangerous players in contemporary discourse -- or at least one of the types that makes me the most nervous, anyway -- are people who are trained as journalists, who know the forms of the genre, but now are working consciously and intentionally as advocates.

Adam Kredo -- he of Kamala Harris' pot-gate -- is one example. Before joining the Washington Free Beacon, he was a relatively well-respected "neutral" journalist working for the Washington Jewish Week. Now, nobody confuses what he does for the Beacon as dispassionate journalism (except maybe Kredo, who claimed -- apparently with a straight face -- that at the Beacon he remains a straight news reporter who is "not in the opinion biz"). Nonetheless, there's little question that Kredo is more effective as a purveyor of partisan hit pieces precisely because he knows how to write an article in a way that follows journalistic conventions. Get quotes from alternative sources, ask subjects for comments (that they're damned if they do and damned if they don't is a bonus), do much of the heavy narrative lifting not by direct accusation but in terms of presuppositions and framing -- it works in a way that more direct propaganda doesn't. I suspect the "news-ier" side of Fox News (not Tucker Carlson or Sean Hannity, but the parts that present themselves as straight coverage) fits this mold too.

On the other side of the street, one can see similar characteristics at Jewish Currents. Again, many of the people writing for Currents have clear talent as journalists, and their stories track journalistic conventions. They aren't obvious agitprop. But they're great examples of how, if you know what you're doing as a journalist, you know how to push every convention to the limits of its tolerance band in a way that gets you to something pretty close to agitprop while still looking on face like a regular investigation. If every choice of framing is meant to accentuate one side's story, if every presupposition of the relevant political climate or social atmosphere reaffirms a particular point of view, if every inference or interpretation is just a little credulous to the right people and cynical to the wrong ones, the result is an article in which all the constituent elements are defensible as fair but the net result is intentionally one-sided (their piece on Ritchie Torres I think works as a decent example of what I mean).

I've sometimes said that the "evil" version of me would make a good press secretary, because I think I'd be very good at spinning effectively. This is a version of that -- if you're a journalist, you know how the narrative machine works, and knowing how it works you also know how to break the machine. And as parts of a political toolkit this is very effective; arguably even necessary, even as it is also intentionally manipulative and kind of hackish. The reason "evil" me is a Press Secretary rather than actual me is that in real life I don't have the stomach for that sort of work. Which is not the same thing as saying that either I or the people I admire are perfectly virtuous or fair-minded in how we relate to our own interlocutors. We have times our biases shine through too. But there is, I submit, a difference between unknowingly being swayed by one's personal biases, or even a temporary lapse acknowledged as a wrong, and knowingly and self-consciously trying to align one's work product with one's biases to the maximum extent possible.

In any event, I suspect the people who do this are in fact decently self-conscious about what they're doing -- they don't (contra Kredo) actually think they're not engaged in opinion; they're relatively open about their agenda. Press them, and they might say something like "all news coverage has a political agenda behind it; the difference is that we are self-conscious about it, whereas the people who think they're doing straight news are more likely to be unconsciously parroting orthodox Pablum without recognizing that's a view too." And I have some sympathy for that critique, actually. We all could stand to be more reflective on what our biases and presuppositions are. But I also think there is a difference between actually trying to understand issues on their own terms and be fair to subjects one is covering, versus just going through the motions of it because "hey, everyone has an agenda right?" Such is the curse of many liberal values (objectivity, neutrality, even-handedness, etc.): they're simultaneously impossible to achieve, and yet things are so much worse when people stop even trying to achieve them.

Demystifying the very much non-neutral "mainstream" coverage norms need not necessarily take the form of "replicating those norms, but intentionally and in service of a different political program." But in practice, it often does, and the result is I think work product that is very slick, very effective for its chosen audience, and very dangerous for the project of fair-minded discourse.

A Hack at the Times of Israel

A piece supposedly penned by an Australian Jewish leader which called for mass murder of Palestinians supposedly justified by Talmudic laws has been pulled by the Times of Israel, and the putative author has announced that "I didn't write that shit!" He is contending that the TOI website was hacked to put up the inflammatory piece under his name.

I'm assuming for sake of argument that this was a hack. Obviously it might not -- this would hardly be the first time someone penned something awful then yelled "hacks!" to get out of trouble -- but given the supposed authors' prior work (which is not remotely similar to this column) and his non-religious background that makes a discourse on Talmudic ethics unlikely ("I am a secular atheist ffs."), most people seem to be in agreement that he was not in fact the actual author.

That said, folks are wondering if TOI has a quality control issue. This is the second time that the TOI has been embroiled in a "call for genocide" controversy; the first involved a program whereby certain contributors could post their columns without any editorial oversight. This one is different since apparently the author, wasn't, but some are contending it still raises questions because presumably somebody on the TOI staff had to approve the column before it was posted (this was the reform that was imposed after the last controversy). I would point out, though, that whether that's true depends on the nature of the hack -- it is possible that somebody just impersonated Bornstein to gain access to his credentials, but it is also possible that a hacker was able to unilaterally put up a post without any actual staffer's permission.

All of that being said -- what a terrible, terrible thing to do. Outside of actual violence, it's difficult to imagine something more awful. Not only did the perpetrator damage -- perhaps irreversibly -- an innocent man's reputation. Not only did they give the impression that views such as this were mainstream in Jewish institutions. But they brought more hate into the world. The world is a terrible place, often, and often it is because people do tragically believe awful things about their fellow humans. We have enough of that in reality to not bring in extra just to prove a point. It is a terrible thing that was done here, and I hope the perpetrator is caught. And I hope that there are legal remedies against them, because they deserve to be punished severely for all the people who they hurt.

Big Boxing Weekend Roundup

This weekend has a lot of great action. Not to mention game two of the Stanley Cup Finals.

* * *

I posted this on my Facebook wall, but it's good enough for a double-dip -- David Hirsh does a beautiful job discussing the BDS campaign's treatment of Jews parallel to Shylock as BDSers tried to sabotage an Israeli production of The Merchant of Venice.

Peter E. Gordon has a fascinating review of a book detailing the history of the Catholic Church's Nostra Aetate.

"Memes are ridiculous!", he said, while unironically citing a meme.

The latest reports are that Stuxnet was a joint American/Israeli project aimed at sabotaging Iranian nuclear capacity.

Nancy Leong asks if diversity is for White people. She's got a cool paper coming out in the Harvard Law Review arguing that the diversity rationale has the effect of commodifying non-White racial identity. She thinks that's a bad thing, I am more circumspect about it.

J.J. Goldberg looks at several Jewish polls (including the one I discussed yesterday), finds that they're all saying very similar things (to wit, Jews are very liberal).

Yes (Duh)

This is just so unbelievably disrespectful. The other day, President Obama said it would be "unprecedented" for the Supreme Court to overturn the Affordable Care Act. Obviously, there's some political hyperbole here -- the Supreme Court has struck down economic regulations like the ACA before, it just hasn't done so since the New Deal. There are "precedents" for the action, they're just not considered to be good law. But that's nitpicking -- obviously, there is a very real sense in which a decision to strike down the ACA would represent the apex of a newly resurgent conservative judicial activism that is quite willing to strike down disagreeable policies based on flimsy, at best, constitutional hooks.

But Judge Jerry Smith of the 5th Circuit decided that it's grand-standing time:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.
[...]
The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, suggesting it wasn't clear whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

Oh please. There's actual doubt as to whether the Obama administration believes in judicial review? As if this wasn't an absurd claim on face, the Holder memo's explicit determination as to the executive's belief in the unconstitutionality of the Defense of Marriage Act provides an obvious case of the Obama administration believing in the judiciary's right and duty to strike down unconstitutional laws. This, of course, does not extend to a belief in the judiciary's right to strike down perfectly constitutional laws. For Judge Smith to make this accusation is so far beneath the dignity of the federal bench you need an oil drill to reach it.

Judge Smith's order is outrageously disrespectful, more worthy of Rush Limbaugh-style gutter politics than a judge with life tenure. Disrespect deserves disrespect in turn. Since the administration can't lawfully ignore the order asking them whether or not they believe in the power of judicial review, I propose they respond with a one-page document that merely says "yes". There's nothing more to say and nothing to see here, and certainly Judge Smith deserves nothing more than that.

(Via).

UPDATE: To add to the middle school-ishness of it all, looks like the order requires the administration's response to be three pages, single-spaced. Well, there goes my proposal.

UPDATE 2x: Rush Limbaugh agrees!

The Opinion Biz

The Free Beacon, as best I can tell, is seeking to become to Think Progress what The 1/2 Hour News Hour was to the Daily Show. But one of its more high-profile pick-ups was former Washington Jewish Week journalist Adam Kredo. Kredo had an excellent reputation as a neutral, non-biased writer, and certainly gave the fledgling right-wing site a shot of desperately needed credibility.

Unfortunately, what we've seen is an impressively dedicated effort by Kredo to dynamite his prior reputation -- going from "respected journalist" to "third string Jennifer Rubin" with impressive speed. His recent articles include Center for American Prejudice: Leftist Anti-Semitic Propaganda Handicaps National Security (notably, excepting a few six-month-old instances of writers using the term "Israel-firster" -- which they apologized for -- Kredo does not in fact cite any instance of CAP doing anything even arguably anti-Semitic) and Former TNR Editor Flaks for anti-Israel Group: Apartheid, Jim Crow, yadda yadda yadda (lest you think it's all just about Israel, check out this bit on Obama's "secret" meeting with Carlos Slim).

Now, in a sense, this is all pretty above board. Kredo was a journalist. Now he's not -- he's a purveyor of a particular perspective, and freed from the shackles of such anachronisms like "objectivity" and "neutrality", he's taken on his new role with gusto. If he wants to flush his reputation down the toilet while on this little bender, hey, it's his career.

No, the tragedy here is that Kredo gamely insists that nothing's changed. When criticized about the hit he took out on Peter Beinart (that would be the "Former TNR Editor [who] flaks for Anti-Israel Group"), Kredo had the gall to reply that "I just report what people say. I'm not in the opinion biz. We here FreeBeacon report -- you decide." Uncritical parroting of the Fox News motto as a defense against biased journalism notwithstanding -- for serious? Your piece is titled "Former TNR Editor Flaks for anti-Israel Group: Apartheid, Jim Crow, yadda yadda yadda" and you say there's no opinion there? Or describing "J Street’s controversial credo" as calling "on the Jewish state to make peace with the Palestinians at any cost, even at the expense of Israel’s longstanding security needs"? Yeah, that's classic, traditional, "just-the-facts, ma'am" journalism that we can all be proud of.

I really can't even think Kredo actually believes it when he writes that. Frankly, he was too good of a journalist to not know the difference between what he was doing at WJW and what he's doing here. And frankly, he's tied enough into the journalism game that he knows the all loopholes -- specifically, that if one says earnestly enough that one is being "objective", then other media actors will have to act as if its true -- or at least, plausible. He's in the opinion biz, and his time outside of said business means he has the potential to be a particularly dangerous player in the opinion biz at that.

But to my eye, a site like Free Beacon may just be too over the top for Kredo to be believed. Adam Kredo was once a strong journalist. Now he's just another conservative hack, toiling on a C-string site. It's an unfortunate fall, but it is what it is.

Never Before Has the Supreme Court Been Asked To Uphold The Acronym "PPACA"....

Commenting on the United States' cert petition in the PPACA litigation, the Justice Department wrote:

Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed. We believe the challenges to Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.

Randy Barnett replies:

Each of those laws enjoyed bipartisan support when enacted; none were passed on a straight-line party vote. In fact, enacting so massive a social-welfare measure that affects every man, woman, and child in the United States in so partisan a manner was ... wait for it ... unprecedented.

For starters, I'm not sure what the argument is here. Does the Constitution change because Republicans threw a temper tantrum about this bill that was ... wait for it ... unprecedented in American legislative history? For that matter, I don't even know what it means to pass a law in a "partisan manner". It's hardly the case that Democrats acted to specifically prevent Republicans from joining the legislation, or locked them out of negotiations. Indeed, given the scope and breadth of GOP intransigence, I'd say they made (wait for it!) unprecedented efforts to include Republican voices. There are laws which were drafted specifically so as to "box out" the other party so they couldn't join on to an otherwise salutary policy accomplishment (e.g., The Unborn Victims of Violence Act). But PPACA wasn't anything like that.

But the entire subtext here is misleading. The Civil Rights Act was "bipartisan" primarily because America hadn't undergone the massive realignment whereby the South shifted from Democratic to Republican. But the fact that Southern Dixiecrats split ranks with their soon-to-be-ex-colleagues hardly implies anything about that law being less controversial at the time of passage. It just illustrates that we live in a political climate where party label more accurately reflects polarization.

Fuzzy Math Returns!

Jon Chait has a low tolerance for morons. In this case, former Bush press flack Ari Fleischer, who is seemingly unaware that 60 > 40, 31 > 30, and 37 > 31. Such are the mathematical contortions one needs to make in order to argue that our tax system actually fleeces the rich. I'd chide the Wall Street Journal for publishing such tripe, except that after their infamous "lucky duckies" editorial (the ducks, in the WSJ's opinion, are the impoverished Americans who don't pay taxes), I don't think they have any standards I could possibly appeal to.