What Penalty For the Judicial Intern Who Used Generative AI?

The contagion of AI-generated hallucinations in law has reached the federal judiciary. Two district court judges have admitted that opinions released from their chambers have included cases hallucinated by generative AI. One of the two judges specifically said that a legal intern (i.e., a current law student working in his chambers) used ChatGPT "without authorization, without disclosure, and contrary to not only chambers policy but also the relevant law school policy."

A judge is ultimately responsible for anything that goes out from their chambers, and I don't want to be misread into thinking that the judges here shouldn't be held responsible for this egregious failure. But certainly the intern who used generative AI has to be held responsible too -- a supervisor's failure to oversee and catch an abuse like this is serious, but the person who actually did the thing remains the primary wrongdoer. And so I'm curious what people's intuitions are regarding what the sanction on the intern should be.

For me, I admit, my instincts here are extremely punitive -- punitive to an extent that's surprising myself. I'm normally a pretty tolerant guy, recognizing that people make mistakes, and that we should give wrongdoers (where they take responsibility and otherwise demonstrate a credible willingness to change course) the opportunity to grow and move forward.

Yet in this case -- boy howdy. My gut instinct thoughts were, right off the bat, that of course they get fired, immediately, from the internship, and get zero credit for it. But it didn't stop there. Should they also be expelled? I'd consider it. Should they be admitted to the bar if they do graduate? I'm not sure they should be. To be blunt, I kind of think this person's legal career should be over, period, full stop, after this.

Part of my reflected rage here is that the person who uses generative AI in this way isn't just hurting themselves, they're wrecking the reputation of someone else -- the judge, someone who gave them a rare and privileged opportunity by having them work in their chambers. How dare they? Nobody will know or remember who this intern is. But the damage to the judge's reputation will follow them forever. 

And the degree to which this falls upon the head of the judge, who trusted them and gave them this opportunity, doesn't really have a parallel in other domains of law. Even in the case of an attorney whose GenAI misconduct leads to sanctions that cripple their client's case, at least the client might be able to sue for malpractice. There's nothing the judge can do to recover from the intern.

I also fail to see any serious excuse or mitigation. I flatly do not believe any law student today does not know of the risk of AI hallucination, and in any event there was in this case a clear policy against AI use that the intern apparently flouted. Were they overworked? Did they panic? Well, what's going to happen the next time they're overworked and panicked? How can anyone trust them again? How can anyone imagine handing over a client to them?

One of stalwart beliefs about legal education, and why it must be rigorous and hold to high standards even where it's hard or stressful or puts a heavy load on students, is that bad lawyering destroys lives. Law being one's dream or passion or family expectation or ticket to financial stability is not as important as good representation of client interests, and someone who can't be relied upon to provide that should not be a lawyer, period.

But again, I'm surprised at how strong I'm feeling about this. So I invite comments that walk me off the ledge (or which vindicate my instincts).

The First Circuit's (Mostly) Correct Dismissal of the MIT Antisemitism Suit

Today, the First Circuit Court of Appeals handed down a decision affirming the dismissal of a Title VI lawsuit brought by Jewish students alleging an antisemitic hostile environment at MIT. The court concluded first that the incidents pleaded by the plaintiffs were by and large not instances of actionable discrimination but rather were protected speech, and that what pleaded incidents were plausibly antisemitic were too isolated to meet the "severe" and "pervasive" threshold necessary to assign legal liability. Second, it concluded that even if the first part of the analysis was untrue, the claim failed for the independent reason that MIT could not be demonstrated to have been deliberately indifferent to the antisemitism.

Overall, I think the opinion is strong and reached the correct result. I was particularly happy to see it acknowledge the extraordinarily difficult position academic administrators are in when trying to mediate between cross-cutting speech/discrimination complaints, as this of course reflects my own position in contrast to the many Monday-morning-quarterbacks who think that these questions are perfectly straightforward and the only reason it looks hard is because of instincts towards censorship and/or bigotry.

I also think this decision illustrates a danger in how many Jewish groups are treating law and litigation as a primary mechanism for policing allegedly antisemitic speech. The litigation approach, to my eyes, is very much tied to a broader misapprehension of the legal landscape regarding discrimination that believes, quite wrongly, that Every Group But the Jews gets immediate and unconditional legal protection the instant they feel a twinge of discomfort on campus or in the workforce. Back in 2020, when Bari Weiss resigned from the New York Times while alleging that the conditions she endured at the paper were tantamount to constructive discharge, I made the following observation (after observing that, in fact, the conduct she identified in her letter came nowhere close to that which would support a successful discrimination lawsuit):

Weiss' confusion is in line with something I've noticed from many conservative observers of anti-discrimination law. They wildly underestimate how high the barriers are to winning a discrimination claim -- probably because they're ideologically committed to the notion that minorities get their discrimination claims rubber-stamped (when the reality is such claims are overwhelmingly rejected by the courts, often before reaching a jury). So when they experience something that is in the family of discrimination, they assume that (a) it must be illegal ("if these whiny minorities are winning, surely my very real pain and trauma must present a winning case too!") and (b) if it isn't treated as illegal, that must be because of some latent anti-conservative(/white/male/whatever) bias, rather than the normal functioning of a legal system they generally endorse.

So too here. The misshapen "us too-ism" morphs what is objectively a very precarious strategy (legal discrimination claims are hard to win, especially when the conduct they are challenging is primarily speech!) into something that appears viable. Law very intentionally and in my very appropriately does not purport to capture everything that could be reasonably called antisemitic -- here, the court agrees that there are certain pleaded incidents which were (if the pleaded facts were true) antisemitic (they were just too isolated to support liability), and particularly in the speech domain there may be speech that can be called antisemitic (or at least debated as such) but which cannot have legal liability attached. But the headline that everyone reads when one files a suit and loses is "antisemitism claims found to be meritless," and there is little hope to then reignite the conversation in the more expansive and forgiving domain of discourse and dialogue.

On that note, if there was one area of the opinion where I have a bit of hesitation, it was in how it treats the plaintiffs' arguments for how anti-Zionism is antisemitic (at least in some forms). The opinion somewhat oscillates between two positions here. Sometimes, it suggests that there remains open debate on the contours of when and whether anti-Zionism is antisemitism, and that our legal system "resolves through discourse, not judicial fiat" (30). "Plaintiffs are entitled to their own interpretive lens equating anti-Zionism (as they define it) and antisemitism. But it is another matter altogether to insist that others must be bound by plaintiffs' view" (28). This I think gets it right. But at other points, the opinion shifts away from the lens of "it is inappropriate for judges to resolve this contested ideological question" and instead delivers a flat judgment that the challenged conduct was simply not antisemitic ("The disruptive political protests sympathetic to Palestinian views of the conflict with Israel were not, by and large, antisemitic." (41)). This I think is unnecessary and flouts the prior, careful choice to abstain from making that judgment one way or another.

One last point: I think the way the First Circuit dispenses with the Jewish plaintiffs' sincere belief that anti-Zionism is antisemitic is at odds with the Second Circuit decision I flagged last month regarding a Christian school's stated belief that forcing its girls' basketball team to play against teams that fielded transgender athletes would violate its religion. In the latter case, the Second Circuit treated disagreement with the Christian school's own articulation of what its religious beliefs required as tantamount to religious animus. In this case, by contrast, the First Circuit had little trouble telling the Jewish plaintiffs that they were (at least as far as the law was concerned) incorrect about what sort of conduct does or doesn't target their religious values. To be clear: I think the First Circuit is closer to the mark here than the Second: disagreement with a religious person's views, so long as that disagreement is not itself motivated by religious hostility, should not suffice to make out a claim of religious discrimination. The Second Circuit's opinion was far too expansive and, if applied consistently, almost certainly unworkable. But it goes to illustrate, once again, that these expansive new religious liberty principles being introduced by the judiciary almost certainly are not going to extend to Jewish litigants -- in part because they have to have limits, and Jews are not part of the in-group meant to be protected but not bound.

If I Am Only For Myself, Who Will Be For Me?

The first two lines of Hillel's famous maxim read as follows:

If I am not for myself, who will be for me?

If I am only for myself, who am I?

It's obviously famous for a reason. The first line endorses some measure of self-regard or at least self-reliance -- we have to advocate for ourselves. The second cabins the first -- if we only care about our personal self-interest, who are we? As in so many things, the best path lies somewhere in the middle.

Hillel's line came to mind for me when I was reading reports of a prominent New York City Rabbi urging his congregants to oppose Zohran Mamdani for mayor. His call was framed in terms of urging Jews to "prioritize their Jewish selves" -- to self-consciously elevate "ahavat yisrael ... over other loves." They should not vote on "affordability, food instability, education, policing, sanitation, taxes – the everyday issues that shape our great city’s life." They must vote in a way that first and foremost "safeguards the Jewish people." Everything else is secondary.

I don't think Mamdani represents the sort of existential threat to the Jewish people that warrants this sort of reaction. This is not the same thing as saying Jews aren't allowed to have concerns over some part of his record. But sermons like this strike me as more than a little histrionic, except for the fact that to me they read like a desperate attempt to spur on a Jewish community which by and large is not reacting hysterically to Mamdani. Again, it isn't so much that Mamdani is being greeted with gushing support (the most recent polling shows that among Jews Cuomo is ahead of Mamdani, but just barely). They're just not converting their various concerns and misgivings into the all-out existential panic this Rabbi would like to see.

But leave all of that aside. My actual quarrel with the Rabbi's sermon is that, as a prescription for political action, it presents an incredibly short-sighted political vision for Jews. For if Jews can legitimately say to various other groups and communities "we hear your concerns (about affordability or policing or Islamophobia or what have you), but we ultimately have to look out for ourselves first"; well, those other communities are equally entitled to reply "and we hear your concerns (about antisemitism), but we ultimately have to look out for ourselves first." And even in New York City, there are a lot more of them than there are of us. So remind me how exactly this will redound to the benefit of Jews?

I raised this same argument six years ago in the context of British elections, where Jews were pleading with non-Jews to not vote for Jeremy Corbyn's Labour Party given Corbyn's rank antisemitism (and Corbyn, to be clear, is on his best day far more antisemitic than Mamdani is on his worst). Many of these Jewish figures harbored no illusions about the Tories, including that party's own sordid involvement in racism, xenophobia, and Islamophobia (and, for that matter, antisemitism). But, they argued, as terrible as Boris Johnson may be, "stopping Corbyn has to be the number one priority for British Jews. And a vote for anyone but the Tory candidates is, ultimately, a vote for Jeremy Corbyn."

Jewish voters who act under this logic, they would say, are by no means endorsing Brexit, which they detest, or xenophobia, which they abhor. They hate these things, genuinely and sincerely. But their hand has been forced. In this moment, they have to look out for Number One. 

I understand this logic. I understand why some Jews might believe that in this moment, we cannot spare the luxury of thinking of others.

I understand it. But it is, ultimately, spectacularly short-sighted. 

To begin, if we accept that British Jews are justified in voting Tory because we are justified looking out for our own existential self-preservation, then we have to accept that non-Jewish minorities are similarly justified in voting Labour in pursuit of their own communal security and safety. We cannot simultaneously say that our vote for the Tories cannot be construed as an endorsement of Conservative xenophobia but their vote for Labour represents tacit approval of Corbynista antisemitism. Maybe both groups feel their hands are tied; trapped between a bad option and a disastrous one. And so we get one letter from the Chief Rabbi, excoriating Jeremy Corbyn as an “unfit” leader, and another competing letter from the Muslim Council of Britain, bemoaning Conservatives open tolerance of Islamophobia. 

But if the Jews reluctantly vote Conservative “in our self-interest” and BAME citizens reluctantly vote Labour “in their self-interest”—well, there are a lot more BAME voters in Britain than there are Jewish voters. So the result would be a massive net gain for Labour. Some pursuit of self-interest. 

Meanwhile, those Brits who are neither Jewish nor members of any other minority group are given no guidance by this approach. There is no particular reason, after all, for why they should favor ameliorating Jewish fears of antisemitism over BAME fears of xenophobia. From their vantage point, these issues effectively cancel out, and they are freed to vote without regard to caring about either antisemitism or Islamophobia. At the very moment where these issues have been foregrounded in the British public imagination in an unprecedented way, insisting upon the primacy of pure self-interest would ensure that this attention would be squandered and rendered moot. 

Of course, all this does not even contemplate the horrible dilemma imposed upon those persons who are both Jewish and BAME—the Afro-Caribbean Jew, for instance. They are truly being torn asunder, told that no matter how they vote they will be betraying a part of their whole self.

And so too here. The argument from self-interest -- aside from ignoring those whose intersecting identities may make them acutely perceive a threat from both Mamdani and Cuomo -- ultimately licenses every other group to not care about Jewish concerns. After all, they have the same license to prioritize their own communal needs and values as we do.

So much of contemporary Jewish discourse is a plea for solidarity, against the pain of feeling dismissed or viewed as extraneous whenever a peer says something to effect of "I'm not happy with how he's alienating Jews, but X Y Z matters more to me." Yet here we see that exact same argument run, and it is a logic that effectively endorses (for the non-Jewish majority) ignoring Jewish concerns.

Indeed, I might daresay that Hillel was, if not wrong, then at least incomplete: If I am only for myself, who will be for me? Aside from me, nobody. And that is a very lonely place to be.