Category: reason

From Anand V. Shah & Joshua Y. Levy, Access to Justice in the Age of AI: Evidence from U.S. Federal Courts (in draft):

This paper studies how generative AI has reshaped entry into the federal civil court system. Drawing on administrative records covering more than 4.5 million non-prisoner federal civil court cases from FY2005-FY2026 and 46 million PACER docket entries matched to those cases, we document three sets of findings.

First, the number of pro se cases—or self-represented cases—is increasing dramatically, rising from a long-term steady-state average of 11% to 16.8% in FY2025. This increase is concentrated in case types characterized by formulaic document production and absent from more complex, attorney-intensive categories.

Second, we argue these cases are placing larger burden on federal district courts. Pro se cases are not terminating faster, and this combined with the increased case numbers suggests more cases for judges to process. Moreover, intra-case activity is up, with the total volume of docket entries per court generated by pro se cases in their first 180 days up 158% from pre-AI means to 2025.

Third, we directly validate that AI use is increasing in federal courts. Using a random sample of 1,600 complaints drawn from an 8-year period (2019-2026), we find that a large and growing share of complaints are flagging positive for AI-generated text, from essentially zero in the pre-AI period to more than 18% in 2026.

Don’t know how it’s carrying over to state courts, but one would think that it would.

The post Apparent Surge in Self-Represented Litigation Using AI appeared first on Reason.com.

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In 2024, as part of my research on the Jack Smith case, I compiled a corpus of primary sources about special counsels before Watergate. Much of this research was novel and had not been assembled before.

I have now published this article in the South Texas Law Review. It is titled, “A Historical Record Of Special Counsels Before Watergate.”

Here is the abstract:

This Article presents a corpus of primary sources that were written by Presidents, Attorneys General, United States Attorneys, Special Counsels, and others between the 1850s and the 1950s. This corpus reproduces primary sources from more than a dozen archives to present a better legal account showing how Special Counsels were retained by Attorneys General under Presidents Buchanan, Andrew Johnson, Grant, Garfield, Theodore Roosevelt, and Truman.

During these six presidential administrations, Attorneys General retained outside lawyers as Special Counsels either: (1) to assist a U.S. Attorney with prosecutions, or (2) to assist the Attorney General with an investigation. In none of these matters did the Attorney General appoint an outside lawyer as a Special Counsel, and then delegate to him the powers now claimed by modern special counsels: all of the powers of a Senate-confirmed U.S. Attorney.

There was one outlier. In 1924, during the Coolidge Administration, Congress enacted legislation establishing Senate-confirmed special counsels to prosecute Teapot Dome Scandal defendants. These Special Counsels were afforded “total independence.” It is doubtful that these positions would be consistent with the Supreme Court’s modern separation of powers jurisprudence.

This practice shows that the positions of special counsels in the post-Watergate era are not analogous to the positions of special counsels in the pre-Watergate era. Thus pre-Watergate history does not provide support for the modern, post-Watergate special counsel and the vast powers that they are purportedly vested with.

The issue of the special counsel has fallen to the wayside for the moment, but I suspect this article will prove useful at the appropriate time.

The post Published Article: A Historical Record Of Special Counsels Before Watergate appeared first on Reason.com.

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Ali v. Mindful Care, Inc., decided two weeks ago by the Illinois Human Rights Commission rejected claims by Ali, who had been an employee of a mental health services clinic. (Commissioners Janice M. Glenn and Gregory E. Vaci wrote the opinion, with Commissioner Mony Ruiz-Velasco dissenting.) Ali claimed that:

[O]n January 3, 2024, a video she was in gained popularity on social media… [T]he video was made on December 29, 2023, and showed Petitioner, off duty, taking down a poster that was attached to an outdoor pole. [According to the employer,] {the video showed Petitioner removing posters depicting children that were kidnapped in Israel on October 7, 2022, by the group Hamas and being held hostage} …. [I]n response to the video, she was harassed by hate groups, including one that she called “Stop Antisemitism.” … [T]he poster she was taking down was intended to create fear, justify the genocide in Palestine, and encouraged the killing of Palestinian children….

Petitioner was allegedly fired on the grounds that “the video was not a good look for Employer,” that the employer “was being called antisemitic by online commentators” and was “losing patients as a result of the video” and “the action Petitioner took was misaligned with Employer’s core values and … Petitioner’s conduct showed a lack of empathy toward the events on October 7, 2022.”

Petitioner claimed:

[Petitioner] is Muslim and holds genuine religious beliefs associated with Islam…. [T]he sanctity of human life is included in her religious beliefs and the idea that every life is worthy of equal respect and dignity, regardless of their religion…. Islam teaches that resistance in the face of oppression, expulsion, and persecution of faith is necessary, and that resistance can take many forms and need not be violent…. [T]he need to resist was especially prevalent because, among other reasons, Muslims around the world view solidarity with Palestinians and resistance to Israeli occupation as an act of their Islamic faith….

The panel rejected Ali’s religious harassment claim:

The alleged harassing conduct occurred off Employer’s premises, outside of work hours, and was conducted by third-party persons, none of whom were employed by employer. Therefore, the alleged harassment did not alter Petitioner’s terms and conditions of employment or create a hostile or abusive working environment….

And it rejected Ali’s religious discrimination claim:

Petitioner claims that Employer subjected her to unlawful employment discrimination when it discharged her on January 4, 2024, on account of her religion. Specifically, Petitioner claims that Employer discharged her in response to the December 29, 2023, video of her pulling down a poster while off work. However, … there are no references in Respondent’s record to similarly situated employees outside of Petitioner’s protected class that were treated more favorably under the circumstances….

[And u]nlike in previous Commission cases [such as one] {finding substantial evidence of pregnancy-based unlawful discrimination without a comparator where there was additional evidence, including statements related to the petitioner’s pregnancy and conduct such as interrupting or interfering with her pumping, indicating that the petitioner’s discharge was pregnancy-related}, in this case, there are no references in Respondent’s record to Employer’s statements or conduct directly implicating Petitioner’s religion so as to create an inference of religious-based discrimination….

Note that the decision doesn’t discuss any religious accommodation claim, presumably because Ali didn’t raise it. She had said that her religious beliefs caused her to take down the flyers (as an act of “solidarity with Palestinians and resistance to Israeli occupation as an act of their Islamic faith”). Therefore, in principle, she could have argued that the employer had to accommodate her religious beliefs by not firing her, unless it could show “undue hardship” (see Groff v. DeJoy (2023)); Illinois religious discrimination law includes a duty of reasonable accommodation just like federal law does. It would have been interesting to see what the Commission would have made of the argument.

The post No Religious Discrimination in Firing Employee Because of Controversy Caused by Employee's Removing Israeli Hostage Posters appeared first on Reason.com.

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Beyond Belief: How Evidence Shows What Really Works, by Helen Pearson, Princeton University Press, 350 pages, $29.95

“Nullius in verba” is the official motto of the world’s oldest national academy of sciences, the Royal Society of London. Usually translated as “Take nobody’s word for it,” the slogan represents a commitment to empirical evidence and experimental proof over reliance on authority, dogma, or tradition.

In Beyond Belief, the award-winning science journalist Helen Pearson writes an engrossing history of the modern “evidence revolution.” That movement aims to draw on rigorous research to figure out what works in fields ranging from medicine to management to education to policing to conservation. As Pearson makes shockingly clear, many decisions in these fields are still based on anecdotes, the opinions of authority figures, and conventional wisdom.

Pearson illustrates the dangerous failures of conventional wisdom with a story about Benjamin Spock’s vastly influential The Common Sense Book of Baby and Child Care. Apparently relying on the authority of the eminent pediatrician Paul Woolley, Jr., Spock revised his book in 1958 to say parents should place their infants face down to sleep to avoid choking on their vomit. Incidents of Sudden Infant Death Syndrome (SIDS) increased, even as evidence accumulated that face-down sleeping correlated with a much higher risk of SIDS. It was not until after a 1990 study showed that SIDS infants were nearly nine times more likely to have been sleeping face-down that a public health campaign advised parents to lay their sleeping infants on their backs. SIDS deaths dropped nearly 70 percent.

“The advocacy of front-sleeping by Spock and others is now understood to have been one of the most lethal pieces of unsubstantiated advice in the history of child health,” Pearson writes. Authoritative conventional wisdom can be deadly.

“That medicine should be based on empirical evidence sounds glaringly obvious now, but few people aside from doctors realise that the term evidence-based medicine is barely 35 years old,” Pearson notes. In that time, she shows, a few medical pioneers slowly began to insist on accumulating and systematizing data.

One central part of the rise of evidence-based medicine is to test treatments’ efficacy by relying on randomized controlled trials (RCTs). In these trials, participants are randomly assigned to either an experimental group (receiving a new treatment) or a control group (receiving a placebo or standard care). This method compares outcomes between groups to determine an intervention’s effectiveness while reducing bias.

Pearson cautions that too many RCTs have flaws, such as having too few participants to reliably detect an intervention’s effect. A Lancet 2009 article argued that 85 percent of medical research is wasted, thanks to poorly designed studies, under-reporting of negative results, and inadequate information on how to implement proposed treatments. This mirrors the biostatistician John Ioannidis’ 2005 investigation into why most published research findings are false.

The Cochrane Collaboration was founded in 1992 to address such shortcomings and to provide clinicians with the best available evidence for effective medical treatments. The nonprofit conducts systematic, standardized reviews of the data from research on various health questions; the goal is to provide clear, objective overviews of all the relevant evidence. Despite greater access to evidence-based medicine, Pearson points out, even now only “around 60% of healthcare in the United States, England, and Australia is in line with evidence-based clinical guidelines.” Still, this is much improved over the situation a generation ago.

Often inspired by pioneers in evidence-based medicine, researchers in other fields are using RCTs and systematic reviews to try to determine the effectiveness of various economic and social policies. The majority of social RCTs, Pearson notes, “do not produce any meaningful effects.” Overall, she notes, “roughly 80% of social programmes don’t work, regardless of whether they aim to improve education, health, poverty, employment or something else.”

Take microcredit programs, which were initially hailed as a successful intervention to lift poor people out of poverty. Follow-up research has knocked the shine off these efforts. “We found no changes in any of the development outcomes that are often believed to be affected by microfinance, including health, education, and women’s empowerment,” reported a team of economists in 2013.

These negative results are still highly valuable, because they can help officials avoid wasting money on useless programs. “The lesson is to beware politicians who produce, with a flourish, a brand-new programme,” she explains. “If there is no evidence to show it’s effective, it’s probably prudent to assume that it won’t work.”

In education policy, Pearson points out, research shows that tutoring and fast, meaningful feedback from teachers boost students’ educational performance. On the other hand, several popular panaceas, such as reducing class sizes and grouping children by attainment level, have little to no discernible effects on education outcomes.

The lack of evidence to support many business management practices is scandalous. Many decisions are still made based on HiPPO: the Highest Paid Person’s Opinion. Supposedly cutting-edge management fads are contradictorily propounded by business gurus: In Search of Excellence vs. The Myth of Excellence, The Peaceable Kingdom vs. Capitalizing on Conflict, and Thinking Inside the Box vs. Out of the Box. Pearson cites studies showing that the hoary human resources practice of annual performance reviews harms morale while simultaneously being ineffective at improving employee performance.

In policing, RCTs have identified more effective strategies than the “three Rs”: random patrol, rapid response, and reactive investigation. The Minneapolis police department conducted a random test doubling police patrols on half of the identified crime hotspots. The result was a cut of crime calls by 13 percent in areas with increased patrols. In another study in England, short-duration police foot patrols in violent crime hotspots caused crime to fall in those areas by 40 percent. Training police to use explanatory, courteous, and friendly procedural justice scripts when interacting with citizens in randomly chosen hotspots reduced both arrests and crimes. On the other hand, despite initial hopes, body-worn cameras do not consistently improve the behavior of either police or citizens.

As Pearson rightly observes, “evidence does not appeal to the emotions in the same way as personal stories do. We have to be trained to accept that it’s more compelling and to think in analytical way.” The development of projects like the Cochrane Collaboration does not guarantee that policymakers or practitioners will consult them.

But evidence-based practices do seem to be slowly taking hold. And that’s a good thing. When trying to determine what’s true or false, you should insist on empirical evidence. Take nobody’s word for it.

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Greetings and welcome to the latest edition of the Injustice System newsletter. It was a big day yesterday at the U.S. Supreme Court for Fourth Amendment buffs, as the justices heard nearly two-and-a-half hours of oral arguments in a case that pits digital privacy and the right to be free from unreasonable search and seizure against a cutting-edge technology that can tell law enforcement officials about the unique location histories of millions of cell phone users.

At issue in Chatrie v. United States is a law enforcement tool known as a “geofence warrant.” In this case, the police told Google to search the location histories of every one of its users in order to determine which users were present in the vicinity of a bank robbery.

Adam Unikowsky, the lawyer for Okello Chatrie, whose conviction stemmed from that geofence warrant, told the justices that the government’s tactics should be viewed as an illegal “general warrant,” the sort of all-compassing search that the Fourth Amendment was originally written to prevent. “There was not probable cause to search the virtual private papers of every single person within the geofence merely because of their proximity to the crime,” he argued.

By contrast, Deputy Solicitor General Eric Feigin told the justices that Chatrie’s position, if adopted, would result in an “unprecedented transformation of the Fourth Amendment into an impregnable fortress around records of his public movements that he affirmatively consented to allow Google to create, maintain, and use.”

Judging by their questions and statements during yesterday’s arguments, a number of justices may share the government’s concerns about ruling too broadly in Chatrie’s favor. For example, Justice Ketanji Brown Jackson told Chatrie’s lawyer that, “I see you as making maximalist arguments about this that I’m trying to understand if they’re necessary to get to the point that you want to go.” “Setting aside your general warrant point,” Jackson pressed him, why shouldn’t the standard be that a presiding judge at the outset simply focuses on whether the initial geofence warrant was reasonable? In other words, why should the Supreme Court make this into a bigger Fourth Amendment dispute than it needs to be?

But the federal government’s “maximalist” position also came under plenty of judicial fire. For instance, Chief Justice John Roberts asked the deputy solicitor, “what’s to prevent the government from using this [tool] to find out the identities of everybody at a particular church, a particular political organization?”

“I don’t think there’s any kind of categorical protection around something like a church,” Feigin said. That’s not exactly what you want to hear from a government lawyer if you happen to care about robust digital privacy rights.

“So you don’t think there’s any constitutional protection from such organizations to be subject to focused surveillance that would cover everybody in a particular location?” Roberts retorted, with a note of what sounded like disapproval in his voice.

Justice Neil Gorsuch interjected with his own clearly disapproving summary of Feigin’s position. In your view, Gorsuch told the deputy solicitor general, “you don’t think it’s a Fourth Amendment search at all. You don’t need a warrant.” And if the government wants “to determine everybody who is at a church, or a political rally, or the abortion clinic, or anything else like that, we [the government] can do that as long as we can get Google to comply. Oh, and we might have a few tools besides warrants to get social media companies to comply with governmental requests.”

“So I do think that effectively is our answer,” Feigin told Gorsuch. Once again, not a pleasant thing to hear from the government if you happen to be a civil libertarian.

The exact outcome of this case is probably too close to predict based on the oral arguments. Hopefully, the Supreme Court will, at the very least, reject the lamentable view that geofence warrants should not count as a search for Fourth Amendment purposes. But we’ll have to wait and see about that.

The post SCOTUS Weighs 'Geofence Warrants' and the Future of Digital Privacy appeared first on Reason.com.

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