Articles Posted in Legal News and Views

Thinking back on my fifty plus years as a practicing law librarian, I have come to believe that criminal law is one of the more humanistic of legal disciplines because it can reach people at such a personal level. Paul H Robinson* and Sarah M Robinson capture this thought in their book, “American Criminal Law: Its People, Principles, and Evolution” (Routledge 2022). It offers a refreshing take on this complex subject.

This book breaks away from dry legal jargon and  instead weaves a compelling narrative that explores the history, core concepts, and ongoing debates within American criminal law. The authors write, “Criminal law is one of the most interesting perspectives on the human adventure,… it requires us to examine how we want people to act, what we will do when they act improperly, and how we decide what we can reasonably expect of people. And to do this, we must assess what makes a successful society, what citizen protections and obligations a society should enforce, as well as the principles of justice that the community shares.”

The authors’ strength lies in their engaging, approach. Each chapter delves into a specific principle, like legality or culpability, by presenting a historical case that illuminates its foundation. This is then contrasted with a modern case, highlighting the evolution of the concept. This back- and- forth through time keeps the reader engaged and demonstrates how the law adapts to societal changes.

The United States has an important lead in the development of artificial intelligence that is crucial to the country’s economy and national security, Attorney General Merrick B. Garland said at the American Bar Association’s 39th National Institute on White Collar Crime in San Francisco. “The Justice Department’s first job is to protect that lead and to protect our intellectual property,”… . According to Garland, “the Justice Department just will not tolerate theft of trade secrets in the area of artificial intelligence.”

From the ABA announcement:

During a fireside chat with Kenneth A. Polite Jr., former assistant attorney general for the U.S. Department of Justice’s Criminal Division, Garland announced that the U.S. District Court for the Northern District of California had unsealed an indictment against a Chinese national who is charged with stealing AI-related intellectual property and trade secrets from Google.Garland said AI and other evolving technologies have “great promise and the risk of great harm … including algorithmic discrimination that AI can foster and the way in which it can accelerate the cyberattacks that are happening daily, even ‘minutely,’ on our companies, on our law firms, on our departments of the government and on our military.”

Eyewitness accounts, once considered a gold standard, have faced increasing scrutiny due to their susceptibility to memory errors and biases. Forensic evidence, while highly valuable, comes with its own set of limitations, such as the time-consuming nature of analysis and the potential for contamination.

Enter the age of technology, which has drastically altered the way law enforcement approaches suspect identification. Innovations in data collection, processing, and analysis have paved the way for faster and more accurate identification techniques. The advent of artificial intelligence (AI) technology has proven particularly transformative, revolutionizing the field of criminal investigations.

Eyewitness identification remains a cornerstone of criminal justice, despite its well-documented weaknesses. Human memory is fallible, susceptible to stress, suggestion, and bias. Artificial intelligence (AI) offers a potential revolution in this domain, but its impact is a double-edged sword.

The American Bar Association Standing Committee on Ethics and Professional Responsibility released Formal Opinion 509 on Feb. 28, 2024.  According to the announcement,  Formal Opinion 509 provides guidance on how disqualification rules apply to both current and former government lawyers under the ABA Model Rules of Professional Conduct. “It specifically addresses issues raised  when these lawyers know confidential government  information about a third person.”

The model rules define confidential government information as “information that has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public.”

For additional discussion of Formal Opinion 509, see the recent article in the ABA Journal, Government lawyers’ use of ‘confidential information’ in private practice clarified in new ABA ethics opinion, by David L Hudson Jr.

Between December 3, 2023, and January 3, 2024, LexisNexis Legal and Professional conducted a survey across 266 Managing Partners and other leaders at American Law 200 and other large law firms. Nearly a third of the executives surveyed indicated their firms had a dedicated budget for generative AI for 2024 and almost 90% indicated they expect their investment in generative AI to increase over the next five years. “Findings include results from 114 executives across 68 Am Law 200 firms, 102 executives across 79 other  large law firms, and 50 executives across 44 Fortune 1000 companies. Firms recognize the potential return on their investment, with 47% believing generative AI technology will decrease costs and 30% believing it will increase revenue. Nearly half of executives are exploring new business opportunities made possible by the technology (47%).” Surveys were conducted in English via the Forsta  survey platform.

For more details regarding survey findings,  Click here  to view the Executive Summary (an overview),  Findings (Full Survey Results), an Appendix, and a discussion of the methodology.

 

From: January 31, 2024 through May 3, 2024:

The current edition of Sci Tech e-Merging News published by the Science and Technology Section of the American Bar Association,  contains announcements of upcoming events and updated research discussing issues of special interest to both members of the legal profession and others outside the legal profession who face similar concerns. These events include the following:

Open-Source Software Security: Areas of Long-Term Focus and Prioritization

Thursday, January 18, 2024 | 1:00 – 2:00 PM ET

Michael C. Dorf, the Robert S. Stevens professor of Law at Cornell University, is a regular contributor to Verdict, a service of Justia which provides substantive analysis by legal professionals on a variety of law and law related issues. In his December 22,2023 posting, to this service,  A Holiday Guide to Donald Trump’s Latest Cases at the Supreme court,  “he points out that the U.S. Supreme Court faces critical decisions in two cases involving former President Donald Trump: one regarding his claim of absolute immunity against charges for his role in attempting to overturn the 2020 election, and the other concerning his eligibility for the Presidency under Section 3 of the Fourteenth Amendment. Professor Dorf argues that despite Trump’s legal team arguing for more time due to the complexity of the immunity case, the Court should expedite its review in both cases, given the urgency of presidential primaries and the weak nature of Trump’s claims, especially against the well-founded argument that he is ineligible under the Fourteenth Amendment due to insurrectionist activities”.

Judge Scott U. Schlegel of the Fifth Circuit Court of the State of Louisiana currently serves as Chair of the Louisiana Supreme Court Technology Commission, and is recognized as a pioneer in using technology in the Louisiana State Courts. He has managed what is considered by many to be one of the most advanced technology courts in the nation in terms of delivering online justice.

According to the Fifth Circuit Court Of Appeals of the State of Louisiana website,  “he is the Immediate Past President of the Louisiana District Judges Association (LDJA) and serves on many other committees. Judge Schlegel has received numerous awards including the National Center for State Courts’ 26th Annual William H. Rehnquist Award for Judicial Excellence, one of the highest judicial honors in the country. Judge Schlegel was also featured on the cover of the American Bar Association Journal and is a nationally recognized speaker on legal tech and the modernization of the justice system including matters related to artificial intelligence and the law,”

Judge Schlegel has also been appointed as a member of the Advisory Council of the ABA Taskforce on Law and Artificial Intelligence in recognition of  his efforts to understand and communicate the important issues and challenges related law and artificial intelligence.  On November 28,2023, Judge Schlegel wrote the following open letter which we think is an important addition to this discourse and needs to be distributed widely. Therefore we are reproducing Judge Schlegel’s letter, titled A Call for Education Over Regulation An Open Letter in full and hope you will find it helpful:

In a previous posting on this blog, Reflections of a Retired Law Librarian: From Mimeograph to Generative AI, I urged professional organizations, including the American Bar Association (ABA) and the American Association of Law Libraries (AALL), to appoint committees or commissions at the highest level to  facilitate the development and implementation of standards sufficient to address the real ethical and safety concerns related  to the increasingly rapid adaption of AI, including  Generative AI, as a technology of choice in the workplace.

It is gratifying to learn from recent announcements from the American Bar Association that it has already been taking steps to address the legal challenges of Ai faced by the legal community. As Mary L. Smith, President of the American Bar Association, has said: “As a national voice for the legal profession, the ABA must play a  leadership role in helping to identify for the legal community the benefits and risks of continually changing AI and machine learning systems and capabilities.”

Measures already taken by ABA include Resolution 112 adopted in August, 2019, Resolution 604 adopted in February, 2023, various articles and podcasts published by its various Sections, including the ABA Business Law Section and the Sci Tech Lawyer published by the ABA Science and Technology Section.

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