Showing posts with label Research. Show all posts
Showing posts with label Research. Show all posts

Monday, March 2, 2026

Word of the Month for March 2026: Fake News

I know you've heard the term Fake News.  It was Trump's rallying cry for several years and he says it whenever any news organization reports something he really (or marginally) doesn't like.

That's not what we're talking about here.  

What I'm looking at here are those cases where the plaintiff (or defendant) is being castigated by the press notwithstanding the fact that the plaintiff (or defendant) in a real case actually has a legitimate claim but the press is pushing the narrative against that of the defendant (or plaintiff).

So, let's dispense with pleasantries and define Fake News in this context.

FAKE NEWS constitutes a subset of intentionally or negligently disseminated pseudo-journalistic content, characterized by the deliberate fabrication, distortion, or strategic omission of verifiable empirical data, disseminated via digital or traditional media channels under the guise of legitimate reportage, with the intent or foreseeable consequence of influencing cognitive biases, socio-political perceptions, or behavioral responses within target populations, thereby undermining the epistemological integrity of information ecosystems and the democratic discourse reliant upon them.

Ummmmmm, sorry about that.  My inner-journalist generator took over for a second.  Let's try that again:

FAKE NEWS is false or misleading information presented as news, typically to influence public opinion, generate clicks, or cause confusion.


OK, that's better - a story used to generate or cause confusing information - sounds about right.

So, how might this apply in real life?  Remember a few years ago, the media flipped out on a story about a bunch of kids and some Indians marching in D.C.?

In January 2019, Nick Sandmann, a Covington Catholic High School student, was filmed wearing a MAGA hat while standing face-to-face with Native American elder Nathan Phillips during the March for Life in Washington, D.C. A short video clip went viral, with media outlets and social media users accusing Sandmann of mocking or intimidating Phillips.

Later, fuller video footage showed that Sandmann was standing silently and that Phillips had approached Sandmann, while a different group (Black Hebrew Israelites) was yelling insults at the students.

Sandmann filed defamation lawsuits against major media outlets (CNN, Washington Post, NBC, etc.), claiming the coverage was "false and damaged his reputation." Several settlements were reached and Sandmann’s case became a key example in debates over media bias, viral outrage, and defamation.

See, that's what we're talking about.  Instead of reporting the actual events, news media is going around reporting lies and misstatements - instead of what is actually happening.

Another example?  

Recently, a Minnesota family, the Moedings, were sued by their neighbors, the Ramoses, over the location of their basketball hoop and the subsequent retrieval of balls that bounced into the Ramos' yard.  The lawsuit, which included claims of trespass and a request for an injunction to prevent the hoop's use, was ultimately dismissed by a judge. 

On first read (and media makes it look like), this sounds like a petty case where an older couple is trying to keep kids from using their (clearly) portable basketball hoop.  However, this case had little to do with basketball as much as the Ramoses were trying to keep the kids from trespassing on their land.  

See, the kids would play on their side of the property line but, as kids are wont to do, the ball would get away from them, bounce/roll to the Ramoses property and the kids would run across the property line trampling grass, flowers, whatever else is in their way to get their ball.

From a property owner standpoint, that would piss me off and if you know anything about getting old and how little things really annoy, it really rakes the nerves.  Anyway, the court eventually dismissed the case leaving the Ramoses little recourse but to sit and fume.  

While an easy remedy would be to have the Moedings install a net/fence behind the basketball hoop to keep the balls on their side of the property line - but that would be admitting fault. 

Some other cases found in the annals of history include: 

Richard Jewell - Atlanta Olympic Bombing (1996)
Plaintiff: Richard Jewell (security guard wrongly suspected).
Claim: Defamation against media outlets (NBC, Atlanta Journal-Constitution, CNN).
Media narrative: Initially pushed the FBI and law enforcement leaks implying Jewell was the bomber.
Reality: Jewell was innocent and later cleared, but the press framed him as seeking attention.
Outcome: Jewell settled with NBC and CNN; won undisclosed settlements.
Press alignment with defendant narrative: The FBI’s suspicion narrative was amplified despite thin evidence, harming Jewell’s life while media framed him as the villain.

Gibson’s Bakery v. Oberlin College (2019) 
Plaintiff: Gibson’s Bakery (family bakery in Ohio).
Claim: Defamation and tortious interference.
Media narrative: Many outlets leaned toward framing the bakery as racially discriminatory after an incident with Black students.
Reality: The students had shoplifted; evidence showed no racial discrimination.
Outcome: Jury awarded $44 million (later reduced to about $25 million) to Gibson’s Bakery.
Press alignment with defendant narrative: Several academic and progressive outlets pushed Oberlin’s framing that the bakery was targeting students based on race, despite facts supporting Gibson’s position.

Rolling Stone “A Rape on Campus” Defamation (2016)
Plaintiff: Nicole Eramo (UVA dean) and fraternity members.
Claim: Defamation over false rape allegations reported in Rolling Stone.
Media narrative: Rolling Stone and supporting outlets pushed the narrative of institutional coverup and fraternity violence.
Reality: The story was fabricated; no evidence supported the claims.
Outcome: Eramo won $3 million; fraternity settled for $1.65 million.
Press alignment with defendant narrative: Rolling Stone and sympathetic media initially defended the article despite growing evidence of its falsehood, framing plaintiffs as silencing victims.

Duke Lacrosse False Allegation (2006–2007)
Plaintiff: Three lacrosse players—Reade Seligmann, Collin Finnerty, and David Evans
Claim: Defamation of false rape allegations reported by CBS News.
Media narrative: In March 2006, Crystal Mangum, an exotic dancer hired to perform at a Duke University lacrosse team party, was raped by the three boys.
Reality: The story was fabricated and in December 2024, Mangum publicly admitted on a podcast that she had fabricated the rape allegations.
Outcome:

  1. Prosecutor Mike Nifong aggressively pursued the case but withheld exculpatory DNA evidence.  
  2. On April 11, 2007, North Carolina Attorney General Roy Cooper dropped all charges.  
  3. The team’s season was canceled. 
  4. Coach Mike Pressler was fired.
  5. Nifong was later disbarred and convicted for misconduct.  
  6. The players sued Duke and the city, reaching settlements. 
  7. Mangum never faced charges for the false claims.  
  8. Nifong served a day in jail for contempt.

Press alignment with defendant narrative: The charges triggered intense media coverage and national outrage, with debates over race, class, and campus culture fueling the story.

I guess the moral to this story is: Take everything big media says with a grain of salt realizing that the press is in the game to make money.  

...and, as it appears, the only way the Press can make money is to make-up stuff to stir up the blood of their victims (in this case, victim=anyone willing to listen).

Monday, February 2, 2026

Word of the Month for February 2026: AI

 

OK, OK, so "AI" is not, per se, a word so much as it is an acronym for "Artificial Intelligence."

Great and with that out of the way, what is AI (or artificial intelligence)? 

An overly complex definition of AI is: Artificial Intelligence (AI) is a multidisciplinary domain within computer science and cognitive science that involves the design, development, and analysis of computational systems capable of performing tasks traditionally requiring human cognitive processes such as perception, reasoning, learning, decision-making, and natural language understanding. It encompasses the creation of algorithms and models that enable machines to acquire representations of their environment, generalize from data, adapt to new information, and exhibit goal-directed behavior under varying conditions of uncertainty. AI draws on subfields including machine learning, knowledge representation, heuristic search, and robotics, leveraging statistical methods, neural architectures, and symbolic reasoning to enable autonomous or semi-autonomous systems to optimize actions in complex, dynamic environments while adhering to constraints defined by computational, ethical, and social considerations.

Got all that?

In more simplistic terms, AI is basically a fancy robot brain that tries to fake being smart so you don’t have to be.

That better?

Essentially, Artificial Intelligence is like building a mechanical apprentice that learns by watching, listening, and practicing, just as a human would, so it can help us carry out tasks.

For example:  Imagine teaching a child to sort laundry by colors: you show them examples, correct mistakes, and eventually, they learn to do it on their own.  AI works similarly, but instead of a child, it’s a computer system that learns from examples, patterns, and feedback so it can make decisions, recognize speech, translate languages, or drive a car.

It’s not truly “thinking” like a human, but it mimics parts of human learning and decision-making to help us do things faster, more consistently, and often on a much larger scale.

Still unclear how it works in "real" life?  

Say you're looking to write draft a professional resume for a sales professional (selling cars) and where you only have a few key skills that might be useful and you've worked at McDonald's slinging burgers for the last few years.

AI can crank a really nice one page resume, based on those parameters, for you.  Of course, I'd suggest you take the time to make small edits - but it will look sharp.

Maybe the resume you submitted above landed you an interview in front of 21 people.  While only 4 people asked you questions, you still need to send a thank-you letter to all 21 people.  I've done this and it took me 4 days to make each one a little different but relatable using notes I took during the interview(s).

AI can crank out those 21 unique and professional letters just based on their titles alone and do it in under 2 minutes flat and make you look like a superstar.

Maybe you're a lawyer and you need help with your lawyer stuff.  How might AI help you?

  • Streamlined Legal Research:  AI can quickly analyze vast amounts of legal data, identify relevant precedents, and suggest potential arguments, saving lawyers significant time and effort. 
  • Automated Contract Review:  AI tools can scan contracts for key clauses, potential risks, and inconsistencies, accelerating the review process and improving accuracy.
  • Enhanced eDiscovery:  AI can help manage and analyze large volumes of data during litigation, identifying relevant information more efficiently and reducing costs associated with discovery. 
  • Improved Risk Assessment:  AI-powered tools can analyze historical case data and predict potential outcomes, enabling lawyers to better advise clients and mitigate risks.
  • Drafting Legal Documents:  AI can assist in drafting initial versions of motions, briefs, contracts, and other legal documents, saving time and improving consistency.

Heck, I used to consult for Anylaw.com where AI is a huge part of it.  In fact, Anylaw.com uses AI to generate the holdings for each case searched.  

Pretty slick!

Anyway, and as all of that looks great, a HUGE drawback with using AI (particularly in law) in the generation of legal documents is that AI tools, particularly generative AI, can sometimes produce inaccurate or fabricated information (hallucinations), requiring careful human review.

 
Wait, what?
 
Yeah.  There are a plethora of examples where lawyers used artificial intelligence search engines to find cases or even write whole briefs only to find out later that the cases cited therein don't exist.
 
For example:  

Say a lawyer uses an AI tool (like ChatGPT OR Microsoft Copilot OR Google Gemini OR Chatsonic OR Grok OR any AI legal assistant) to draft a legal document. The AI is asked:

“Provide cases supporting the argument that emotional distress damages are recoverable in breach of contract cases in Utah.”

The AI responds with:

“Yes, see Smith v. Jones, 456 P.3d 789 (Utah 2019), where the Utah Supreme Court held that emotional distress damages were recoverable in a breach of contract case.”

However:

  • Problem: Smith v. Jones does not exist.  Well, it might exist somewhere but not with that citation or set of facts or holding or, even at all.  In this example, the AI generated a citation that sounds real but is entirely fabricated (“hallucinated”), including a made-up volume, page number, and holding.

  • The AI pulled patterns from similar cases but created a false case to fit the prompt.

  • If the attorney includes this citation in a filed brief, Attorney could (and probably should) face serious court sanctions, reputational damage, and ethical violations under ABA Model Rule 1.1 (Competence) and Rule 3.3 (Candor Toward the Tribunal).

Can you say oops?  

Two real-world examples of attorneys using hallucinated cases from AI engines include Mata v. Avianca, Inc. (S.D.N.Y., 2023) (aka the “ChatGPT Case”).  I know I've already blogged about this case in an earlier post but it's fun to talk about this stuff and these guys were really reckless.
 
In this case, attorneys Steven A. Schwartz and Peter LoDuca of Levidow, Levidow & Oberman used ChatGPT to draft a brief in a personal injury case against Avianca Airlines.
 
The brief included six non-existent cases generated by ChatGPT, such as: Varghese v. China Southern Airlines, Martinez v. Delta Airlines, and Miller v. United Airlines.

The attorneys asked ChatGPT if the cases were real, and ChatGPT falsely assured them they were, even providing fabricated excerpts.

Thing is, had they just Shepardized the cases, they would have discovered the discrepancies and avoided the penalties of being sanctioned with a $5,000 fine and ordered to notify the real judges falsely cited in their brief

In the second REAL case of Park v. Kim (N.Y. Sup. Ct., 2023) – (aka the "Second ChatGPT Sanction Case"), a lawyer in New York used ChatGPT to draft an opposition brief in a personal injury case.  

The brief included false citations to non-existent cases.  Opposing counsel flagged the citations as untraceable. The lawyer admitted to using ChatGPT without verifying the citations (i.e. he didn't Shepardize the cases).

In this second case, the court issued sanctions against the attorney and the lawyer was ordered to pay legal fees to opposing counsel and faced professional embarrassment (basically, he was laughed at all all future bar meetings).

Other cases where attorneys used A.I. to improperly draft legal documents (and were caught) include:

1) United States v. Hayes

  • Jurisdiction: U.S. District Court, Eastern District of California (2005)

  • What happened: A defense lawyer submitted a motion containing a fictitious case and quotation that appeared to be AI-generated. The court ordered the attorney to pay $1,500 and circulated the ruling to local bars and judges.

2) Butler Snow Attorneys (Disqualification Order)

  • Jurisdiction: U.S. District Court, Northern District of Alabama (2025)

  • What happened: Three attorneys from Butler Snow submitted filings with fabricated AI-generated citations in defending Alabama prison officials. The judge found the conduct improper, disqualified the lawyers from the case, and referred the matter to the Alabama State Bar.

3) Indiana Hallucination Citations (Ramirez)

  • Jurisdiction: U.S. District Court, Southern District of Indiana (2024-25)

  • What happened: In briefs for a case involving HoosierVac, an attorney filed multiple briefs with made-up AI-generated case citations. The magistrate judge recommended a $15,000 sanction and noted the lawyer failed to check the AI output.

4) Eastern District of Michigan — Sanctions for AI-Related Errors

  • Jurisdiction: U.S. District Court, Eastern District of Michigan (2025)

  • What happened: Plaintiffs’ counsel included in their responsive briefs real case names with fake quotes or misleading parentheticals that appeared to result from AI hallucinations. The court found Rule 11 violations and imposed monetary sanctions to deter future AI misuse.

5) Sanction (Southern District of Indiana — $6,000 Fine)

  • Jurisdiction: U.S. District Court, Southern District of Indiana (2025)

  • What happened: A federal judge fined an attorney $6,000 for filing briefs that included citations to nonexistent cases generated by an AI tool, emphasizing that such “hallucination cites” must be verified by counsel.  

6) In re Kheir (Bankr. S.D. Tex. 2025) 
  • What Happened: A bankruptcy court found plaintiff’s counsel used generative AI to “manufacture legal authority,” resulting in sanctions including fees, continuing legal ed., and referral to disciplinary counsel.
 
7) In re Marla C. Martin — U.S. Bankruptcy Court, N.D. Ill. (2025)
  • A bankruptcy court found that counsel filed a brief containing fabricated case citations generated by AI (e.g., In re Montoya, In re Jager, etc.) in a Chapter 13 proceeding.

  • The attorney admitted he used ChatGPT for legal arguments and did not verify the generated citations.  The court held this violated Federal Rule of Bankruptcy Procedure 9011 and sanctioned the lawyer and firm with a $5,500 fine and required attendance at an AI education session.

8) Ford v. James Koutoulas & Lgbcoin, Ltd., No. 2:25‑cv‑23896‑BPY, 2025 U.S. Dist. LEXIS 234696 (M.D. Fla. Dec. 2, 2025)

  • What happened: In this federal case, the defendants’ summary judgment motion “contained several citations that the court and the plaintiffs suspected were GenAI hallucinations, where the court was unable to locate the cited authorities.”

In most of these cases, the attorneys faced stiff fines, humiliation at the hands of their peers and public, and some were referred to the State Bar for discipline.  

What is key to note is that prior to 2023, there are no recorded instances where attorneys were caught improperly using AI.

Why?

Simply because the technology wasn't available until around 2023.  Prior to late 2022, there was no generative AI (like ChatGPT) capable of producing case citations.  

Earlier "AI" tools (like Westlaw's KeyCite or Lexis's Shepards) were search and analysis tools (meaning humans searched and analyzed when they got) - not generative drafting tools and neither KeyCite or Shepards produced hallucinated citations.

I suspect what happened is that law students and, subsequently, attorneys got lazy and stopped relying on their own efforts to draft legal documents expecting that computers would continue to be reliable and not churn out non-existant
citations
.  

Deceitful AI
Who knew people would program AI search engines to be deceitful (because algorithms are only as trustworthy as the people who programmed their parameters).

The bottom line to all this here is that as great and helpful and fast as AI is, it is not 100% accurate.  

Consequently, AI should never replace basic legal research practices (including cite checking using Shepards or Key Cite) or remove the human element (i.e. personally editing your own work).

Monday, December 1, 2025

Word of the Month for December 2025: Constitutional Republic v. Democracy

Ever since the election in November 2024, I've been hearing the terms "Constitutional Republic" and "Democracy" getting batted around like beach balls at a Beach Boys concert.  

What is bothersome is that because so many people of importance (self, or otherwise) have been mixing these terms, there is a risk that both or either of the terms will be as generalized and common as "statutes" and "code" (which are NOT the same thing).

Wait, generalized?  What do you mean by that?

Well, certain formerly trademarked terms have, over the years, become so overused that they've become part of the public domain and are no longer protected under Trademark laws.

You've heard these terms but you may not know that what you are saying was once trademarked or otherwise important terms that have become more common over time.  Some better known examples include:

See what I'm talking about?  If nothing is done to ensure that terms like "Constitutional Republic" and "Democracy" maintain their distinctive meanings, then we the people will become no more unique than Jolly Old England (from which we split back in the 1700 's).

So, before we get too far into this, let's define each of these terms.  

A Constitutional Republic is a form of government in which citizens elect representatives to make decisions on their behalf, and the government's power is limited and defined by a written constitution. 

This constitution establishes the fundamental principles and laws, protects individual rights, and outlines the separation of powers among the executive, legislative, and judicial branches to prevent any one branch from gaining too much control.

Key features of a Constitutional Republic include:

  • Elected leaders (including the head of state, often a president) rather than hereditary rulers
  • A system of checks and balances to balance power and prevent tyranny, especially protecting minority rights from majority rule
  • Government authority derived from and limited by the constitution, ensuring rule of law applies equally to all citizens
  • Citizens participate indirectly by voting for representatives rather than directly on all laws, distinguishing it from a direct democracy

A Democracy is defined as: a system of government in which supreme power resides with the people, who exercise that power either directly or through elected representatives under a free and fair electoral system. The term literally means "rule by the people" (from Greek demos "people" and kratos "power").  Essentially, the majority rules.  A person's individual rights are secondary to the majority rule.

Key characteristics of democracy include

  • Popular sovereignty: The people hold ultimate authority and govern themselves.
  • Political equality: Every citizen’s vote or voice has equal weight in decisions.
  • Participation: Citizens participate either by voting directly on laws (direct democracy) or by electing officials to represent them (representative democracy).
  • Rule of law and protection of individual rights: Democracies typically uphold laws that protect freedoms, equality before the law, and minority rights, preventing unchecked majority rule.
  • Mechanisms for accountability: Fair elections, freedom of speech, and peaceful transfer of power allow citizens to hold officials responsible.
The primary difference between the two is that a Constitutional Republic is governed by a foundational document (a Constitution) that limits government power to protect individual and minority rights.  A pure democracy operates on the principle of majority rule with fewer inherent protections for the minority. 

A key problem with mixing up or watering down the terms "Constitutional Republic" and "Democracy" can be problematic is because it obscures critical distinctions that affect how people understand government structure, individual rights, and the protection against majority tyranny.

A pure democracy centers on majority rule which can risk the tyranny of the majority where the majority may impose laws or policies detrimental to historical minorities or to people who don't want to do what the majority wants them to do.

"So what," you might say?  

Even though we are a Constitutional Republic, there are a number of times when Majority Rule (i.e. Democracy) took over, over the years.  For example: if you're old enough to remember, in the 1950's-60's, blacks and Mexicans were regarded as less than due to Majority Rule.  

Railroad companies imported thousands of Chinese workers to build railroads networks that crisscrossed America and then exiled them to slums when the work was done or prohibited Chinese from immigrating to the U.S. due to Majority Rule.  

While those of Japanese descent were carted off to internment camps after the attack on Pearl Harbor, I can't remember any internment camps for those of German descent when Hitler declared war on America - all thanks to Majority Rule.

So, "so, what"?!  The "so what" is that if there is no distinction between "Constitutional Republic" and "Democracy," the vocal minority will overtake the will of the silent majority in no time, flat!

What is particularly annoying is that notwithstanding the important distinction between the two concepts, there are a number of modern politicians who seemingly disregard the importance of the difference between a Constitutional Republic and a Democracy, such as:

Joe Biden (former POTUS)

“We have to defend democracy. That’s who we are as Americans.”
Biden, Speech in Philadelphia, September 2022

“Democracy is on the ballot.”
Biden, November 2, 2022, speech on threats to democracy

“Democracy is more than a form of government; it’s who we are.”
Biden, Inaugural Address, January 20, 2021

Analysis: Biden consistently frames the United States as a democracy in identity and governance, emphasizing threats to “democracy” but not distinguishing it from the U.S. being a constitutional republic.

Kamala Harris (Former Vice President)

“We must defend our democracy, protect our democracy, and strengthen our democracy.”
Harris, Speech in Selma, Alabama, March 5, 2023

“We are a democracy, and our democracy is strongest when everyone participates.”
Harris, July 2022, National Urban League Conference

Analysis: Harris regularly equates America’s system with “democracy” in public speeches, using it to describe the system itself rather than acknowledging its republican constitutional structure.

Barack Obama (Former POTUS)

“Democracy does not work if people do not vote.”
Obama, Speech at University of Illinois, September 7, 2018

“We are the only advanced democracy that deliberately discourages people from voting.”
Obama, August 28, 2020, eulogy for John Lewis

“Our democracy is at stake.”
Obama, various campaign speeches 2020–2022

Analysis: Obama frequently uses “democracy” as shorthand for the American system and for electoral participation, with no distinction from the structural identity as a constitutional republic.

Nancy Pelosi (Former Speaker of the House)

“We have to fight for our democracy.”
Pelosi, January 6, 2022, Capitol Remembrance

“The sanctity of the vote is the foundation of our democracy.”
Pelosi, July 2021, on voting rights legislation

Analysis: Pelosi consistently frames the U.S. system as “our democracy,” emphasizing voting as its foundation, without reference to constitutional republican principles.

Hillary Clinton (Former Secretary of State)

“Our democracy is under assault.”
Clinton, October 2020 interview with The Atlantic

“We need to protect our democracy.”
Clinton, various campaign appearances 2016–2020

Analysis: Clinton, like other modern Democrats, uses “democracy” to describe the American system, focusing on electoral participation without acknowledging the U.S. as a Constitutional Republic.

OK, OK, enough with the political rhetoric, what I want to know is how distinguishing between a Constitutional Republic and a Democracy actually helps the modern attorney and/or legal system under which we now operate.

As it happens, there are a number of reasons why it is important to distinguish between a Constitutional Republic and Democracy for the modern lawyer.  

Lawyers Operate Under a Constitutional Framework, Not Pure Majority Rule
In a constitutional republic, laws, policies, and government actions must comply with the Constitution.  So, even if a majority of voters or legislators support a law, if it violates constitutional rights (e.g., First Amendment, due process), lawyers can challenge it in court.  This means lawyers can protect minority rights and individual liberties against majority preferences.  
 
For example, even if 80% of voters passed a state law banning certain speech, lawyers can still challenge it as unconstitutional.  In a pure democracy, that law would stand because it reflects the majority’s will.
 
Judicial Review Exists Because We Are a Constitutional Republic
Presently, lawyers have the ability and opportunity to argue constitutional challenges in federal and state courts (e.g., using the Supremacy Clause, the Bill of Rights, the 14th Amendment).  Under a Constitutional Republic, courts have the authority to strike down laws that violate constitutional principles, regardless of how popular the law is. 
 
If we were purely a democracy without constitutional limits, lawyers would have no basis to overturn laws simply because they violate individual rights.
 
Protection of Clients' Rights Against Government Overreach
Lawyers rely on constitutional protections to defend clients against unlawful government action.  For example, in criminal cases, defense lawyers often use the 4th, 5th, 6th Amendments to challenge unlawful searches, coerced confessions, or unfair trials.  
 
Civil rights lawyers use 1st and 14th Amendments to challenge discriminatory laws.  These protections only exist because the Constitution is a higher law than that of the will of the majority.
 
Constitutional Limits Guide Legislative and Executive Actions
Lawyers advising government agencies, legislators, or executives must ensure policies conform to constitutional standards, not just public opinion.  
 
For example, election laws must comply with Voting Rights Act and other constitutional protections.  Also, criminal statutes must meet due process and equal protection standards.
Finally, in a constitutional republic, powers are divided between the federal and state governments as specified in the United States Constitution.  
 
Lawyers use these principles to challenge federal overreach under the 10th Amendment, assert state sovereignty, and determine jurisdictional questions in litigation.  In a pure democracy, there is no guaranteed distribution of powers between federal and state levels.
 
Bottom line is that lawyers function as our last line of defense defending the Constitutional order and our individual rights (like free speech, gun rights, voting rights) - which ONLY exist because we live in a Constitutional Republic.
 
That's the "so what"! 
 

Monday, November 17, 2025

Old Dog, New Tricks

The other day I was working with a Master Carpenter.  What impressed me was how many tools he had in his shop.  Some I could identify, others not so much.

As an omniscient law librarian, I have many tools at my disposal, too, and have used many legal databases in my time teaching and research law and legal things.

The problem with using legal databases like Westlaw or Lexis or Bloomberg Law or Fastcase, Anylaw.com, etc. is that you (as in the individual) have to come up with a search string(s) that you hope will dig up whatever it is you're looking for.

What is a search string?

While you can always run searches using natural language (like what most people do in Google), a search string typically uses more complex terminology.  It's like it's own programming language and when you get into it, it really helps to narrow down your search results to the point where you can really dial into what it is you actually need.

Formally called Boolean search syntax, a Boolean search syntax uses terms and connectors to help narrow search results.

Boolean search connectors common to most all browsers and legal databases include:

 
And if all you're going to use is your common, everyday browsers, these will work great.
 
However, if you're ever going to step up and play with the big dogs, you're going to need to know how to develop a proper Boolean search syntax using one (if not all) of the more powerful legal databases.
 
My personal favorite legal database is Westlaw.  Powerful, tons of features and, best of all, easy to teach and use.  A bit on the pricey side if you're looking to get personal access, but it is hands-down the best resource when it comes to searching all things legal.
 
Back in the day, I was pretty good at developing my own search strings.  When I got stumped, I'd waste not a second and call 1-800-Westlaw and speak with a Reference Attorneys (bunch of lawyers who ate, slept and lived Westlaw 24/7) to get help drafting a search query.
 
However, with the advent of Artificial Intelligence (aka AI), coming up with a search string is easier.  So, let's say I searching in Westlaw for caselaw for/to:
Create a search string using terms and connectors seeking cases since 2015 where an amusement or theme park was held liable for injuries to guests
In this case, I used Chatgpt and retrieved the following result:
("amusement park" OR "theme park" OR "water park") /p (guest OR patron OR visitor OR invitee OR customer OR "paying customer")
AND (liab! OR "held liable" OR "found liable" OR "liable for" OR "judgment for plaintiff" OR "verdict for plaintiff") /s (injur! OR accident OR mishap OR death OR "wrongful death" OR harm OR "personal injury" OR "bodily injury" OR "catastrophic injury" OR "traumatic injury" OR "fall injury" OR "ride injury" OR "slip and fall")
AND (neglig! OR "duty of care" OR "breach of duty" OR "premises liability" OR "premises defect" OR "failure to warn" OR "inadequate security" OR "inadequate maintenance" OR "dangerous condition" OR "attractive nuisance") /p ("amusement park" OR "theme park" OR "water park") DA(aft 01-01-2005)

So, here we have a number of connectors like:

  • OR (give me A or B; more expansive)
  • AND(give me A and B (more restrictive)
  • /p (A within the same paragraph as B - expansive)
  • /s (A within the same sentence as B - bit more restrictive)
  • ! (acts as an extender.  So, Act! retrieves Act, Acts, Acting, Acted, Acted, Actor, Actress...)
  • ( ) (keeps related concepts together)
  • "  "  (returns two or more words together in a certain sequence)
  • DA (refers to a date filter)

With a date filter of 2015-2025, we'll see things we are looking for.  Or, at lease we can get to a starting point.

Lexis is another legal database.  Not my favorite as it is a pain to teach and it is still has some clumsy elements.

Using the same criteria as above (create a complex search string using terms and connectors seeking cases since 2015 where an amusement or theme park was held liable for injuries to guests) and using Chatgpt, our search string looks like:

("amusement park" OR "theme park" OR "water park") w/15 (guest OR patron OR visitor) AND (liability OR "held liable" OR "found liable" OR "judgment for plaintiff") w/15 (injury OR injuries OR accident OR death OR "wrongful death" OR harm OR "personal injury") AND (negligence OR "duty of care" OR "premises liability" OR "attractive nuisance") AND NOT ("judgment for defendant" OR "defense verdict" OR reversed)

Again we have a number of connectors like:

  • AND (A and B - less restricted)
  • OR (A or B - more restricted)
  • AND NOT (A but don't include any results with B - even more restricted)
  • w/# (I want A within a certain number of words)
  • (  ) (keep this cluster of terms together
  • "  " (I want these words in just this order)

Also to note is that Chatgpt added some legal terms like "premises liability," "attractive nuisance," and "wrongful death" suggesting that it is trying to give additional suggestions as users conduct a search.

Note also that this search query isn't as long or complex as the one for Westlaw.  That doesn't mean it's wrong or anything - it's just different and it's how Chatgpt interpreted what I was asking.  Change the query, and I'd get another result.

The bottom line here is that AI had really changed how law people work.  No longer do we have to hunt and peck around hoping to hit pay dirt.  Now we have AI search engines which help to cut down the time that is used to take to get started.

Sunday, September 28, 2025

Nothing be to afraid of

Picture it.

It's summer time.  Blue sky, a few clouds, light breeze....and you decide to go out for a morning jog like you always do when it's not raining or snowing or flooding or there's a tornado brewing.

Anyway, you're out running and dang it but (and it most always happens), you get this sharp pain in your side.  I mean, those things HURT!

Have you ever gotten those sharp, side pains?  I know I have and, as it turns out it is not a rare occurrence.

The problem is that those sharp pains actually have a term.  They're called exercise-related transient abdominal pain, or ETAP.  Around two-thirds of runners experience them every year.  But unfortunately for weekend joggers everywhere, this medical term does not come with a medical solution.  

Why?

Well, turns out even though side stitches are common, researchers haven't really studied them. 

What???  How is it that something as common as side stitches are ignored but there is time and money to research things for which drugs were invented to prevent:

  • Male/Female Impotence, or 
  • Hyperhidrosis (excessive sweating), or
  • Restless Leg Syndrome, or
  • Nail Fungus (could be toe or fingers), or
  • Cosmetic Wrinkle Reduction, or
  • Male Pattern Baldness, or
  • Mild Anxiety for "Performance" (I'm guessing this one is sexual in nature rather than an inability to speak in public), or
  • Mild Cosmetic Acne

Dang but there are a lot of things I can think of that could really use some serious like:

  • Social Isolation
  • Grief or Bereavement
  • Procrastination (imagine a drug that could cure this?  Employers everywhere would like up for that one!)
  • Aging-related frailty
  • Mild hearing loss (a cure-all for guys who don't hear their wives) 
  • Caregiver burnout (that's a big one, right there)
  • Something to fix that ringing in your head (I can handle the voices, but the ringing...!) 
  • The fear you get when you walk into a law library

This last one is actually curable without a pill.  I should know because I've helped cure thousands of people overcome their fear of law libraries (aka law library anxiety).

I can't count the number of people I've seen walk into a law library and watch the color drain from their faces as they look at all the books on shelves.  

Can you say TERRIFIED?!?

But you don't have to be.  How, might you ask?  There are four (4) rules you need to know to help you overcome law library anxiety.

  1. Rule ONE:  Primary Authority is that which is handed down by a governing body.
  2. Rule TWO: Secondary Authority is that which explains, interpret, or analyzes Primary Authority.
  3. Rule THREE: Mandatory Authority is that which courts MUST follow.
  4. Rule FOUR: Persuasive Authority is that which courts MAY follow.

So, how do these four rules work and help with library anxiety?  Let's take each Rule and break them down into manageable bits.

Rule ONE: Primary Authority is that which is handed down by a governing body.  

Most people hear things and immediate thing statutes and court court decisions.  Yeah, but that doesn't really cover what the law is governing your situation.  

Situation?  What situation?!

Years ago, I helped a guy who had just been kicked out of his book club.  Seems he wanted to review a book that the other members did not want to review and they kicked him out.  He was angry with their decision and wanted back in. 

The problem was he didn't know what law would govern book clubs.

So, under rule one, what is a governing body?   A formal definition is a group of people who formulate the policy and direct the affairs of an institution.  So, what we're looking at here might be something that looks like:

What are some other governing bodies not specifically related to they typical government structure?

  • Residential & Community Governance 
    • Homeowners Association  (HOA)
    • Condominium Associations
    • Mobile Home Park Associations
  • Property & Facility Governance 
    • Business Improvement Districts
    • Property Owners Associations
    • Timeshare Associations
  • Religious & Organizational Governance
    • Church Boards
    • Parish Councils
    • Synagogue/Temple Boards
  • Educational Governance
    • Parent/Teacher Associations (PTA) 
    • School Boards
    • Charter School Boards
  • Recreational & Clubs Governance
    • Swim Club Boards
    • Tennis Club
    • Private Club Boards
  • Cooperative & Shared Business Governance
    • Worker Cooperative Boards
    • Agricultural Cooperative Boards
    • Artist Cooperative Boards
  • Specialized District Governance
    • Special District Boards
      • Water Board
      • Fire Protection Boards
      • Library Districts
      • Parks and Recreation Districts
  • Other Community Group Governance 
    • Neighborhood Associations (non-HOA)
    • Tenant Associations
    • Block Associations

See that one under Recreational & Club Governance: Private Club Boards?  That's the one guy targeted. See, the problem is that guy was dealing with a book club - not a monstrously HUGE government entity.  

All guy had to do was look at the rules of the tiny/virtually insignificant book club - which is/was the governing body for his book club.  

I mean, why would a courts use codes/ordinances from a monstrously HUGE government structure when all it has to do is use the small/virtually insignificant local/neighborhood book clubs' own rules and procedures that govern how its members inter-relate?

Which is what the court did aaaaaaaand guy was still kicked out of the club as the book club had followed all of its procedures and guy didn't have a leg to stand on.

Summary:  A governing body can be BIG (think Federal or State or County or City) or it can be small (think tennis club or book club).  All that is required is that there be a semblance of established rules/procedures which must be followed by its members.

RULE TWO:  Secondary Authority is that which explains, interpret, or analyzes Primary Authority.

Have you ever needed to know the definition of a word?  Regardless of whether it was online or in-print, you used a dictionary to look it up.

Have you ever had to do a book report or some other paper in school?  Regardless of whether it was online or in-print, you used a book(s) or articles to help you explain your position to help you write that report.

Resources other than case law/statutes are secondary authority are used to help explain how primary authority is applied, used, or interpreted.

Court use secondary authority/evidence all the time to help interpret the law when they are trying to formulate an opinion.

(State/Federal) member of congress (house/senate) use secondary authority all the time when they're looking to create laws/statutes

Been to a library (public or law) lately?  The shelves are jammed packed with secondary authorities to help you explain what it is you are writing/arguing about. 

The kicker between Rule 1 and Rule 2 is that you can cite to primary authorities with reckless abandon in legal documents.  You use secondary authorities to help understand what's what and develop oral arguments.  You DO NOT cite to secondary authority unless you want to run the risk of the judge ignoring and/or sanctioning you for citing to authorities that have NO legal authority.

True, there are attorneys who only cite to secondary authority (and I'd steer clear of them because that shows a lazy lawyer), but for my money, I'd want someone representing me who knows the difference between what qualifies as legal authority and what doesn't. 

RULE THREE: Mandatory Authority is that which courts MUST follow.

Things get tricky when looking at rules three (Must) and four (May).  

What does MUST mean?  Defined, must is an imperative need to duty.  How this works is that when looking at laws from other courts, a court MUST follow decisions/laws from it's own jurisdiction

So, California courts MUST follow the laws/statutes handed down from the California legislature.  California Superior courts MUST follow decisions handed down by the California Supreme Court and the California Appeals Courts. 

Arizona courts of limited and general jurisdiction MUST follow the law statutes handed down from the Arizona legislature, and Courts of Appellate Jurisdiction (Court of Appeals and Supreme Court). 

Wyoming Circuit Courts MUST follow the laws handed down by the Wyoming legislature and by the Wyoming Supreme Court, District Courts.

Texas Trial Courts MUST follow the laws handed down by the Texas legislature and by the appellate courts, and the two courts of last resort (Supreme Court and Court of Criminal Appeals).

New York Trial Court (which include the Supreme Court, Court of Claims, Family Court, Surrogate's Court, and local courts (City, Town, and Village)) MUST follow the laws handed down by the New York legislature and the intermediate appellate courts, and the Court of Appeals (which is the highest court in New York).

See how that works.  Trial courts in a specific jurisdiction (or area of control) MUST follow the laws/decisions in the specific jurisdiction.

RULE FOUR: Persuasive Authority is that which courts MAY follow.

If MUST is critical, MAY expresses permission or possibility.  MAY indicates that something could happen but it is not certain.  When it comes to things legal, MAY indicates allowance or consent.

So, how MAY works is Utah courts MAY use laws handed down by New York, but it doesn't have to. 

Wait, what?

So, as it turns out, New York was the first state to create a law regulating the Internet.  In 1990, New York passed a law amending its Penal Law § 235 to address “obscene material” and computer networks, making it a crime to disseminate obscene material to minors via a computer.

What this means is that New York, being the first, was the only real authority on the regulation of the Internet.  Do you think, though, that no other states in the Union didn't have issues related to Internet regulation at that time?  

Sure they did!

But even though New York had a law DIRECTLY ON THE TOPIC of Internet regulation, other courts did not have to follow it.  They could, if they wanted to but weren't REQUIRED to use it.  Other courts might have looked at the New York law; they might have tasted it, licked it, touched it, poked it, prodded it, provoked it, or kicked the wheels - but they didn't have to use the New York law.

So, if a Wisconsin court was looking at an issue but didn't have any laws/decisions on the books for that particular issue, it MAY look to the laws of any other jurisdiction, but it doesn't have to and could rule based on it's own belief (because I'm sure the judges in Wisconsin as just as competent as any other judge in any other jurisdiction).

Nevada courts MAY look at Oregon Court decisions but doesn't have to use them.

North Carolina courts MAY look at North Dakota court decisions but doesn't have to use them.

Florida courts MAY look at Rhode Island court decisions but doesn't have to use them. 

Montana courts MAY look at South Carolina court decisions but doesn't have to use them.

Ohio courts MAY look at Mississippi Court decisions but doesn't have to use them.

So, what does "doesn't have to use them" suggest/mean?  It means that courts can use other jurisdiction decisions as SECONDARY authority to help interpret their own laws/decision.

See how these rules fold in onto themselves?  You do this enough times and it becomes easier to understand/apply.

Now, here's a zinger.  Say a court has a decision that it uses on a particular issue and you submit a brief with a law from another jurisdiction because you think the law from the other jurisdiction/court helps to clarify the issue you are trying to argue better than what the court in your jurisdiction has on its books?

Your Judge/Court might laugh at you (in the way of sanctions) OR it might ask for clarification on why you would include a decision that is persuasive, at best.  

Hey, it's could happen (and has).

Annnnnnnnnnd, that's how it all looks.  

No longer do you need to have that deer in the headlights look when you walk in a law library.  Sure, you might (still) be terrified to talk to a god-like visage like a law librarian, but at least you know (now) you can find your way around a law library without being scared out of your pajamas.