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Donald Trump nominated John Bush to the Sixth Circuit on the strength of his resume as anti-gay blogger. Trump would go on to place some questionable characters on the bench from an associate a year removed from clerking to a bumbling wrestling heel, but there’s something about elevating judges based on their blogging that summed up the whole administration.
As a former blogger, Judge Bush feels more at home on the cutting edge of technology so while some of his fellow judges decry artificial intelligence, he sees a bold future where the laborious slog through out-of-context content to reverse engineer a false historical narrative to fit an originalist’s desired policy outcome may be replaced by artificial intelligence lovingly hallucinating a false historical narrative to fit an originalist’s desired policy outcome.
Judge Bush spoke with the University of Chicago’s Federalist Society chapter and, as covered by Nate Raymond of Reuters, hailed the coming AI revolution as the spark originalism needs to finally bring America into the 18th century.
Bush cited the emergence of corpus linguistics in the legal field, which involves searching and analyzing vast databases of text – or corpuses – to determine how words or phrases were used at the time they first appeared in the law.
A judge currently seeking to deploy that tool must undertake the “highly laborious and time consuming” process of entering a search term into a program and sifting through the numerous hits from documents it finds containing those terms.
“But what if AI were employed to do all the review of the hits and compile statistics on word meaning and usage?” Bush asked. “If the AI could be trusted, that would make the job of determining word meaning and usage much easier.”
As an academic pursuit, corpus linguistics scours a broad field of contemporaneous — but contextually distinct — documents to generate quantitative and qualitative insights into usage across society at a particular slice of time. It can illuminate changing patterns in language across geography, class, and ethnic backgrounds.
As a legal pursuit, it performs none of these functions.
Rather, originalists hijack this academic framework to sift through documents seeking a “TRUE” meaning of the term at the relevant time — a conclusion that mocks the whole field of linguistics that they’re ripping off. Where academics would revel in layers of nuance and multiplicities of meaning, the originalists use these programs to cherry pick the meaning of an “unreasonable search” based on a single article from the Portsmouth Star appearing right above an article about burning Goody Winthrop for witchcraft and right above a classified ad about selling slaves at a bargain.
Bush further tells on himself and the fraudulent nature of the project when he inserts himself into the process as the one digging through all these hits as though a JD provides the competency and expertise to use corpus linguistics tools like, say, an actual linguist. The conservative legal movement has now declared itself better at history than historians and better at science than scientists, so why not heap linguistics onto the list.
Everything from the searches Bush describes running to the judgment calls he’s making from the results amounts to scientific malpractice. Performed routinely and eagerly in the service of Original Public MeaningTM (read: contemporary GOP policy goals).
It’s just burying the BS under AI. Generative AI is just trying to please the user and while good faith interactions combined with responsible guardrails to keep the algorithm within the limits of its reliable performance can elevate the process by performing tasks that humans never could, the sort of shoddy, self-serving prompt engineering Bush describes will just spit out to shoddy, self-serving results to vacuously litter throughout an opinion to give the result the imprimatur of legitimacy. “Here’s 1,000 representative clippings that kinda come out our way!” Quality and context be damned — it’s argument by sheer volume.
So the next time you think the biggest threat posed by artificial intelligence is a few made-up case citations, remember that it can get a lot, lot worse.
Conservative US judge says AI could strengthen ‘originalist’ movement [Reuters]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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