Legalese
The Great Unsettling: Administrative Governance After Loper Bright
Cary Coglianese & Daniel Walters
Administrative Law Review, Winter 2025, Pages 101-164
Abstract:
“Chevron is overruled.” These three words surely captured more attention than any others in the U.S. Supreme Court’s thirty-five-page opinion in Loper Bright Enterprises v. Raimondo. For forty years, the Chevron doctrine had been virtually synonymous with administrative law. Now that the Court has taken a step that many scholars thought unfathomable even just a few years ago, speculation abounds about the possible downstream impacts of Loper Bright on both what agencies will be able to do in the future and how lower courts will respond when reviewing agency action. The vast majority of early expert commentaries suggest major changes to the future of administrative governance. This article aims to put this early prognostication into perspective. We explain why it is difficult to know whether or how much Loper Bright will matter at this time, if we will ever really be able to tell. Both as a legal text and as an intervention into the complex web of institutional politics that constitute administrative governance, Loper Bright contains ambiguities that significantly cloud the picture of the future. In fact, the decision might best be thought of as something of a Rorschach test inside a crystal ball: different people can see different things in it, especially when they try to envision what comes next. And what they see may reflect more of what they are primed to see by their own cultural or ideological predispositions than by an underlying, confirmable reality. That is not to say that Loper Bright has not changed nor will not change administrative law. Nor is it to say that it will not have influential effects on the future practice of administrative governance. Rather, it is to say that predictions about the decision’s impacts cannot be made with anything approaching precision or certitude. We know that Loper Bright has shaken up the legal landscape -- much like we can feel an earthquake when it literally shakes up the ground beneath our feet. But just as with real earthquakes, it will take time to assess what the full impacts of the Court’s legal tremors have been -- and on which particular structures. Rather than make any definitive predictions about Loper Bright’s unsettling consequences, lawyers and scholars alike would do well to be attentive to the multiple ways that Loper Bright may (or may not) shape the future of administrative governance. We suggest here some of those possible ways and explain why it is so difficult to predict Loper Bright’s precise impact on future administrative governance -- a conclusion that may itself prove to be as unsettling as the overturning of a forty-year-old precedent itself.
Judge AI: Assessing Large Language Models in Judicial Decision-Making
Eric Posner & Shivam Saran
University of Chicago Working Paper, January 2025
Abstract:
Can large language models (LLMs) replace human judges? By replicating a prior 2 x 2 factorial experiment conducted on 31 U.S. federal judges, we evaluate the legal reasoning of OpenAI’s GPT-4o. The experiment involves a simulated appeal in an international war crimes case, with two altered variables: the degree to which the defendant is sympathetically portrayed and the consistency of the lower court's decision with precedent. We find that GPT-4o is strongly affected by precedent but not by sympathy, similar to students who were subjects in the same experiment but the opposite of the professional judges, who were influenced by sympathy. We try prompt engineering techniques to spur the LLM to act more like human judges, but with no success. “Judge AI” is a formalist judge, not a human judge.
AI-Powered Lawyering: AI Reasoning Models, Retrieval Augmented Generation, and the Future of Legal Practice
Daniel Schwarcz et al.
University of Minnesota Working Paper, March 2025
Abstract:
Generative AI is set to transform the legal profession, but its full impact remains uncertain. While AI models like GPT-4 improve the efficiency with which legal work can be completed, they can at times make up cases and “hallucinate” facts, thereby undermining legal judgment, particularly in complex tasks handled by skilled lawyers. This article examines two emerging AI innovations that may mitigate these lingering issues: Retrieval Augmented Generation (RAG), which grounds AI-powered analysis in legal sources, and AI reasoning models, which structure complex reasoning before generating output. We conducted the first randomized controlled trial assessing these technologies, assigning upper-level law students to complete six legal tasks using a RAG-powered legal AI tool (Vincent AI), an AI reasoning model (OpenAI’s o1-preview), or no AI. We find that both AI tools significantly enhanced legal work quality, a marked contrast with previous research examining older large language models like GPT-4. Moreover, we find that these models maintain the efficiency benefits associated with use of older AI technologies. Our findings show that AI assistance significantly boosts productivity in five out of six tested legal tasks, with Vincent yielding statistically significant gains of approximately 38% to 115% and o1-preview increasing productivity by 34% to 140%, with particularly strong effects in complex tasks like drafting persuasive letters and analyzing complaints. Notably, o1-preview improved the analytical depth of participants’ work product but resulted in some hallucinations, whereas Vincent AI-aided participants produced roughly the same amount of hallucinations as participants who did not use AI at all. These findings suggest that integrating domain-specific RAG capabilities with reasoning models could yield synergistic improvements, shaping the next generation of AI-powered legal tools and the future of lawyering more generally.
Public Perceptions of the Fairness of Black and White Judges in Racialized and Non-Racialized Cases
Taneisha Means & Isaac Unah
Journal of Law and Courts, forthcoming
Abstract:
Black legal theorists often believe White Americans see Black judges as incapable of deciding racial issues fairly. Using a survey experiment, we examine this by studying perceptions of Black and White judges’ fairness through racial threat and group consciousness. Results show race consistently influences Black Americans’ evaluations of judges, with Black respondents viewing Black judges as fairer on racial issues. For White respondents, race only affects their views of judges in the context of racial resentment, otherwise playing no significant role. These results highlight the complex interplay of race in judicial evaluations.
Trump’s Lower Court Judges and Religion: An Initial Appraisal
Stephen Choi, Mitu Gulati & Eric Posner
Journal of Legal Studies, January 2025, Pages 1-41
Abstract:
It is widely believed that President Donald J. Trump’s first-term judicial appointments reflect a strategy of appeasing evangelical Christians and other religious groups that favor a more conservative, Christian judiciary and that in pursuing this strategy Trump sacrificed quality. We explore this theory by examining the biographies and credentials of Trump’s lower court nominees and the voting records of his circuit court appointments in free-exercise cases. We find that Trump’s appointments to the lower courts have stronger or more numerous religious affiliations and are affiliated with the Federalist Society and the National Rifle Association at high rates but are no less well credentialed than other judges. We also find that Trump’s circuit court appointments more frequently vote in favor of Christian plaintiffs and less frequently vote in favor of Muslim plaintiffs in free-exercise cases than judges appointed by other Republican presidents and by Democratic presidents.
The SCOTUS Tournament: Winning Isn't Everything
Tracey George, Mitu Gulati & Albert Yoon
Vanderbilt University Working Paper, January 2025
Abstract:
Litigation at the U.S. Supreme Court is a tournament of champions. A handful of elite lawyers increasingly dominate the SCOTUS podium. An emerging narrative about this phenomenon is that these select few, bearing the most rarefied of legal credentials and often representing big business, get more of their cases heard and decided in their favor. These SCOTUS champions disproportionately influence the law. This narrative, however, is thick on rhetoric and thin on evidence. We look closely at private lawyer appearances before the justices from 1970 through 2023, allowing the data to drive the story. Seasoned Supreme Court litigators are, indeed, more likely to win. Our findings suggest, however, that story is more complex and interesting than merely a game of winners and losers. Reputation, influence, and power derive from more than the outcome.
When the Courtiers Return to the Marble Palace: The Impact of U.S. Supreme Court Lawyers’ Prior Appellate Clerkship Experiences
Marcy Shieh, John Szmer & Megan Bird
Journal of Law and Courts, forthcoming
Abstract:
Most Supreme Court (SCOTUS) clerk studies explore selection, or impact, during the clerkship. The existing research examining the benefits of clerking for those returning to the Court suggests relational expertise from clerking for a specific justice, not process expertise from the clerkship, enhances SCOTUS oral argument success. Our study suggests the benefits of prior appellate clerkships likely stem from both relational and process expertise. Specifically, justices tend to favor parties represented by former US Court of Appeals (USCA) clerks who never clerked for the SCOTUS and prior SCOTUS clerks, even when the clerk did not serve in the justice’s chambers.
An Equilibrium Model of Deferred Prosecution Agreements
Brian Grenadier & Steven Grenadier
Stanford Working Paper, February 2025
Abstract:
Deferred prosecution agreements (DPAs) are now a standard tool used by prosecutors to punish corporate crime. Under a DPA, the defendant escapes prosecution by living up to the terms of the contract. However, if the prosecutor declares a breach, the defendant may face immediate prosecution. We present an equilibrium model of the terms of a DPA, highlighting a little-recognized, yet potentially valuable benefit accorded the defendant: the option to breach. While upon initiation of the agreement, a breach might be seen as a
more painful outcome than adhering to the DPA, over time this situation could change. Using the tools of real option analysis, we demonstrate that DPAs may embed valuable optionality, particularly for longer-term agreements with significant uncertainty over future prosecution outcomes. Since DPA penalties must price in such optionality, naïve comparisons to agreements without optionality, such as plea bargains, will mistakenly conclude that DPA terms are overly harsh.
Verbal and Numeric Eyewitness Confidence Differentially Affect Decision-Making
Pia Pennekamp
Applied Cognitive Psychology, February 2025
Abstract:
Eyewitness confidence is typically communicated verbally (e.g., certain). Interpretations for verbal confidence statements are variable which could affect decision-making. I explored the extent to which confidence format (i.e., verbal vs. numeric) influences juror decision-making. Participants (N = 468) read a trial vignette in which an expert witness draws attention to the eyewitness's confidence in their suspect identification (uncertain, or certain, or 28%, or 88%). Participants rated the expert's recommendation, rendered a conviction decision, and provided confidence in their decision on a scale of 0 = Not at all confident to 10 = Completely confident. Mock-jurors were more likely to convict when confidence was high. However, mock-jurors were also more likely to convict when confidence was presented verbally. This effect may be attributable to the ambiguity verbal confidence affords, allowing for interpretation in congruence with the eyewitness's identification decision.
Women’s Dangerous World Beliefs Predict Biases Against Formidable Men in Legal Domains
Bridget O’Neil & Mitch Brown
Evolutionary Psychological Science, December 2024, Pages 388–396
Abstract:
Recurring threats of physical aggression throughout human evolutionary history presented selection pressures that favored the ability to perceive threats accurately. One heuristic from which perceivers estimate the potential threat is men’s formidability. Despite the functionality of these inferences in self-protection domains, such responses could bias perceivers in domains wherein evaluations based on physical features may be inappropriate. The demands of a modern legal system could be mismatched with these ancestrally informed motives. This study considered how self-protection motives foster biases against formidable men in legal decision-making, particularly as it relates to sentencing decisions. Mock jurors reported dispositional dangerous world beliefs and provided sentencing recommendations for a male target convicted of aggravated assault who was either physically strong or weak. Women recommended less lenient sentences toward strong men when they believed the world was dangerous. Men’s punitive decisions were not associated with such beliefs. These findings provide evidence for how self-protection motives may inform modern legal decision-making, particularly as it relates to women’s navigation of prospective physical threats.
The Effect of U.S. Anti-Troll Patent Laws on Litigations and Innovation Activity
Itziar Lazkano & Jangsu Yoon
University of Wisconsin Working Paper, January 2025
Abstract:
A total of 35 states have implemented anti-patent-troll legislation since 2013 to discourage patent troll litigations in U.S. courts. We estimate an event study design model to determine the dynamic treatment effect of these state-level anti-troll laws on both litigations and patent applications using data from 2000 to 2019. Our results show that state-level anti-troll laws discourage patent troll behavior without a significant effect in deterring new patent applications. We also find that these laws are particularly effective at reducing troll litigations in the medical and pharmaceutical industries. Since we find no substantial evidence of hindering effects on overall innovation, our results support the argument in favor of anti-troll policies that increase the cost of litigations.