Justice Alito’s Next Moves

Ready? I was born ready. Welcome to Advisory Opinions! We are live at Southern Methodist University! I'm just saying we're at A&M tomorrow, and I don't think that's going to get like that. No, no, no. Our A&M has already been crushed. No question. Thank you, SMU. What a kind, kind welcome. And truly, this has already been an amazing event. we landed and went straight to get some Tex-Mex at MeCasina. No, we did not have a Mambo Taxi because we're doing this podcast for you. We can't be like fall down margarita drunk for this podcast. I mean, tipsy, sure, but not Mambo Taxi level. But it is good to be back in my home country, and I appreciate the warm welcome. Special shout out to Judge Starr for coming here and supporting us, Aaron and Trey Cox. You guys are the best. Dean Nance, warmest welcome. We're so grateful. Steve Waters for pulling this all together. But I have to say there is someone in the audience that I want to give a special shout out to. Mark Jackson, I have known since high school and he is here. I mean, I wasn't in high school. He was in high school. And it's pretty cool. Mark's older brother and I were on John Cornyn's first Senate race together in 2002. And I don't know, we've been family ever since. So I would, this is a very AO story, but when I was clerking in Houston, the brothers lived together in Austin and I would go on the weekends to visit them. And every time I was driving, there would be these turtles that were trying to cross the road, which you know isn't gonna end well. And my mother was a wildlife rehabilitator. My dad would actually use like wood screws to help the turtles that had been hit. And so anyway, I have visions of turtles being hit by 18 wheelers that haunt my memory's Silence of the Lambs style. So I would pull over on like two 90, 90 mile an hour cars zooming by and go get these turtles. But now I've got turtles in my car. And so I'd show up to the Jackson home with these two bachelors and be like, thanks for inviting me over for dinner. I brought you turtles. so I'm a great house guest is the punchline of that story David yeah well I'm not sure about the wisdom of trying to save turtles at great personal risk like that but I have my own turtle story I was once on a two-hour ground hold at JFK airport because of turtles in the taxiway and they had to call I mean I'm sure they needed to call me I'm sure this was like a regulation you know, turtle maintenance 1.17 subsection B. You had to have specifically trained fish and wildlife people to recover the turtles in JFK. They should have just called you. Yes. You can just grab them, guys, and make sure it's not, you know, the wrong kind of turtle, I guess. The snapping turtles are no joke. They'll take that hand right off. Okay. Anyway, I guess this is a legal podcast, they tell me. So we are going to talk about the Rumors swirling, taking over all conversations in legal world about whether Justice Alito is going to retire this summer. As well as a piece that Jeffrey Toobin wrote for the New York Times on the American Constitution Society. Is it a thing? Was it ever a thing? Will it be a thing? A great decision, meaning a conversation starting decision from Judge Rakoff about whether AI breaks attorney-client privilege. Super pumped about that. Every attorney I've talked to has been like, wait, what? And then we've got questions from you guys. And don't forget boneless chicken wings. Let's start with Justice Alito and these retirement rumors. A few things to note here. Justices tend to announce their retirements after the end of the term, which ends at the end of June usually. So we look at like July 1. July 2 is kind of retirement season. And now, of course, another factor to think about with retirements are midterm elections. If you're a justice who wants to retire so that the president can more easily replace you, you may think about the chances that the president's party, for instance, will maintain control of the Senate. Well, here we are heading in to the summer of 2026, prime retirement season. And there's really two justices that folks are looking at. Justice Clarence Thomas, who is best I can tell, will be taken out horizontally from the court. And Justice Samuel Alito. Now, as you will learn in my book, which, by the way, some special attendees of this event tonight actually get a pre-copy of my book, David. Oh, fantastic. There's these little things on their chairs to order the book, and some of them had stickers, and they get to go home with a typo-filled copy. Oh, that's fantastic. Justice Blackman is spelled incorrectly every time I mentioned him. I blame Professor Blackman because I spelled it his way. That's your fault. So Justice Alito, as you can learn from my book, well, he's an introvert, I think, is the easiest way to describe him. This is not the thing that gives him meaning in life, I think, in the traditional sense of sort of narcissist, egomaniacal people who are like, I am a justice of the Supreme Court. He really, I think, thinks it's important both to himself, he reminds his clerks of this, sort of the Ozymandias version of the Supreme Court. This shall all be forgotten. You shall be forgotten. You're not so special. Nobody's going to be sitting around, you know, talking about Sherman Mitten in 2026, except me, because I think it's the best Supreme Court name. And no, Bushrod Washington, I'm aware, is not the best Supreme Court name. Bushrod is a cool name, but Washington, that's pretty normal. And he was related. So like, no, Nepo baby, you don't get extra credit for having a cool name. So it would make sense that Justice Alito would retire rather than just sort of serve out forever, that he would actually enjoy retirement a la, you know, he's not quite a justice suitor in terms of introversion and eating the whole apple, including the core, but he's on that side of the spectrum, I would say, of introversion. So we've all been looking, waiting for tea leaves. He hired clerks for next term. Justices long ago stopped letting us read those tea leaves, though, except David Latt, once he started covering the clerks, that was too easy. But Justice Alito announced he was writing a book, which is a little out of the Justice Alito norm. He's never done that before. But it's the publication date that is causing everyone to pull out their Bridgerton fans, fan themselves. I'm fanning myself visually, just so you guys know. October 6th is the publication date. And the thought goes, if you're a sitting Supreme Court justice, you would want to publish your book in September, let's say, when you're on your summer vacation. I mean, recess. But why pick October 6th, 6th when we all know the term starts the first Monday in October. That means it will be in the first week of oral arguments. How is he supposed to do a book tour? Therefore, he must know that he won't be doing argument week that week, and therefore he's retiring. And just imagine me writing on a whiteboard with red string attaching all over the place. It's really thin gruel for a retirement speculation, but it is not too thin gruel for us to talk about, specifically because I think it will lead into a really fun exercise, which is, okay, if Justice Alito retires, who would be in the lead to replace him? And we thought we'd do a little bit of a fun game here, which is we're going to have an NBA draft where we're going to go back and forth and pick draft picks as to who is more or less likely in the constellation of potential appointees or nominees, who's most likely? And because I'm super generous, Sarah, I'm going to give you the very first draft pick. So in the Alito replacement draft, who would you think right now as of today would be the favorite candidate? Fifth Circuit Judge Andrew Oldham. He's a former Alito clerk. He, you know, in that study that they did of various judges looking specifically at the judges individually, but also at Trump-appointed judges versus Obama-appointed judges, he was also in the very top of maverick judges, meaning judges who were most likely to break from other judges appointed by the same party. Now, there's one way to look at that and be like, wow, he's so moderate. He just keeps breaking from all these conservatives. But of course, I'm here at SMU, and you guys know that's not why he's a maverick. They're literally laughing. It's he's breaking from the right to either the more right or the new right, particularly his opinions on social media cases, for instance, have been sort of a good highlight of that distinction. He is also at the top of that list for writing, literal words, opinions, no matter how you break it down. He's just working harder. Now, we call this sort of thing like auditioning behavior for judges, which can have sort of a pejorative context. But the fact is, you're of a certain age, you're new on the bench, you're trying to decide who you are as a judge. And who Judge Oldham is sure looks like someone you might want to pick to replace Justice Alito. So with the second pick in the draft, I'm going all the way to my home circuit of the Sixth Circuit Court of Appeals and Judge Amul Thapar. So for a couple of reasons. One, he's been talked about in the past. He's been talked about a lot. In the clerk wars that erupted around the nomination of Brett Kavanaugh, there was a lot of intra-clerk conflict and combat over Judge Thapar. Is it time for him now? He's a very solid conservative. I think he'd be the first South Asian Supreme Court justice. And also, there's an intangible for him, Sarah. He would also be the Maha justice. So Judge Thapar, a lot of people don't know this, sort of runs a little fitness substack. So he is the only judge on the federal bench who is also a fitness influencer. And I don't know if you saw recently, there was a little video done with RFK Jr. and Kid Rock. It was incomplete without a third. Judge the par. So, no, I think that he has been, there's something about him that I think is similar to the Kavanaugh to Barrett track, which is there is at least some precedent for a judge-in-waiting concept that he was considered the first time and then did not receive the nomination. And now this would be, in many ways, the ideal time for him. He's got all the credentials. He's been considered before. And you're grimacing. Age. My God. Okay, you're going to say an age, and it's going to really upset me. Okay, give it to me. Are you ready for this? I'm ready for this age. he's about to turn 57 years old in a couple months so he's younger than me sarah he's younger than me basically already out to pasture no i will i will grant you that i'll grant you factory would you stop so i will grant you that i will grant you that that is in the upper edge so that is an it's a now or never it is a now or never i think if we were having this conversation when he turns the apparently to you, out to past your age of 57, maybe... Crypt keeper. You know there are people in this audience actually older than that. Impossible. Nobody has ever lived that long. So, Biddy, I stand by my second pick. Okay. Third pick to you. Now, I think it's important to note the first round draft, a very, you know, we're picking from the circuit courts, sort of the traditional picks. um okay so second round draft i want to go to my second bucket of types of picks i think you could stay in bucket number one and we could list all of the other judges that are in that bucket um judge ho judge rao would all be in that bucket for me but for draft round two i am picking jen mascot she is now a brand new judge on the third circuit and the reason that i put her in a different bucket is because she is a member of the very ascendant Justice Kavanaugh Mafia. So we have Judge Whitney Hermandorfer, Judge Rebecca Tableson, Judge Jen Mascot, all Kavanaugh clerks, all of these circuit picks that Trump has made in his second term. It doesn't really matter why the Kavanaugh Mafia is so powerful, but whatever's getting them those circuit picks probably has them align into that Supreme Court pick as well. So don't underestimate the power of the clerk mafias. Obviously, I think we all know that the Justice Thomas clerk mafia is the most... What is the word I'm going to say now? Thinking carefully, thinking carefully. Well, okay, so behind their backs, there are people who refer to the CT Mafia as the Mujahideen. Whoa. Okay. Meaning they are purists, they are stringent, and they will, you know, look out for each other. Interesting. Okay, I'm going to go... I didn't say I didn't have any margarita before this. That is true. That is true. Okay, I'm going to go... Like I going to do what you know that cutting edge GMs general managers do in the NBA I going to go for a reach pick a young star just to deal with your ageism Patrick Boumette Patrick Boumette out of the Ninth Circuit Again everybody we talking about here has exactly the kinds of sort of conservative jurisprudential credentials that would have put them front of the line in Trump's first term. We're still waiting on sort of Trump's philosophy for his judicial, his Supreme Court nominees, his second term. But he's got all the credentials that would have put him front of the line first term, younger judge, up and coming, going to be on the bench for a very long time, you know, God willing. And the exact profile I would think that you were looking for if you're looking for somebody who's young, got a lot of energy, going to be there for a long time, very brilliantly smart, and also has the advantage of being a former AO guest, which I don't know how that will exactly cut in the vetting process, but that's my next pick. You know, he just had a birthday. His birthday's on Valentine's Day, so happy birthday, Judge Boumette. Sorry, this is your present. Another point about Judge Boumette to make is, you know, back in the Bush administration, for instance, I don't know that you would have put Judge Boumette on that list, David, because Judge Boumette is married to a man and they have children together. And that I think would have been seen as a deal breaker during the Bush administration. In the Trump administration, it really is quite the opposite. There are a number of gay senior members of the administration who have incredible pull and political influence. So it's just sort of interesting in such a short amount of time that something that would have been a negative is now a positive, I think, in the administration. So that's fun. All right. Third round draft. Last round, third round. Okay. Third round, Again, I'm now going to have my next bucket of picks. This is your outsider bucket. I've got like... Darn it. You took... Okay, anyway, go ahead. Well, there's so many. Okay, go for it. I'll take Solicitor General John Sauer. He's had a great track record at the court, obviously. I will say that if the tariff decision comes down the way that I think it is going to come down, that could hurt his chances of becoming a Supreme Court justice under this president. But nevertheless, if the vacancy were today, just his oral argument in the Trump immunity case, I would think would put him on any short list at this point. I think that's a smart pick. My last one, I was going to say Sauer as part of sort of not a specific person, but someone from MAGA legal universe would have been one of my picks. But I'm going to go back to D.C. Circuit Judge Naomi Rao as my third pick. again you're you're you're each one of these judges that I've talked about are people who would absolutely be front and center and sometimes were front and center in Trump's first term so I'm I'm really operating under the first Trump first term mindset when it comes to judicial picks however when if you're looking at the judicial picks of this term I think it's mainly been similar to Trump's first term mainly has been so I think I've got some basis for thinking that this will continue, of course we can't be sure. And he's been picking a lot fewer judges by this point in his term than he picked last time. And there's just been fewer vacancies. Ed Whalen had a really interesting tweet where he's talking about the sheer number of Republican-nominated judges who could take senior status right now but have chosen not to. And it's a very, it's a surprisingly large number have not taken senior status. So these are vacancies that could exist, but don't exist right now. Two are on the Fifth Circuit, Edith Jones and Jerry Smith holding down the Fort in Houston, sharing chambers and never leaving. All right. When we return, we are going to talk about the ACS, the American Constitution Society. We haven't spent a lot of time on it in this pod, David, but Jeffrey Toobin has a piece in the New York Times and it is time, ACS. It is time. We'll be right back. David, I got this email from a high school teacher at Fort Myers High School, and I want to read it to you. I am wondering if you could do an episode that delves deeply into the different judicial theories and their descriptions. I have a solid idea about originalism, again, long-time listener, but I am hazy on some of the others. Initially, I considered myself an originalist, but upon further review, I don't fall into that category because I believe the Supreme Court and courts generally should rule based on the original intent, more so than the pure original language. I don't know how my judicial philosophy would be labeled, and I'm sure there are other judicial philosophies that I'm equally unaware of. First of all, awesome high school history teacher. And if you're in his class and you know who you are, bring him an apple or something far better than an apple. Apples are lame unless they're honeycrisp. Now, I bring this up, David, because of this piece about the American Constitution Society in the New York Times this week that talked about whether the American Constitution Society that has a new president will become a true alternative to the Federalist Society. The American Constitution Society was started in 2001. The Federalist Society was started in 1982. So look, FedSoc had a big head start. I also think a big difference was that the Federalist Society was truly started by law students and was really a, well, to the extent you can call Harvard, Yale, and Chicago grassroots, a real grassroots people's organization, you know what I mean? The proletariats. Yeah. Yes, absolutely. Justice Scalia was the faculty advisor at Chicago. The American Constitution Society was really started to answer the Federalist Society, but the problem, I think, for ACS was always that if you're a law student trying to figure out what to think about liberal ideas at a law school, it's called going to class or talking to any other law student or your law professor. or reading any law review article or literally engaging with legal academia in any way whatsoever. So there just wasn't that need. And even when it did come up, there wasn't the band of brothers, right? Because again, they were the majority. They had all the law professors. They had the majority of the law students, whereas FedSoc was offering sort of social cohesion as much as anything else. I mean, truly, like, my children are FedSoc babies, and they go to school with other FedSoc babies, and hopefully they'll marry those FedSoc babies, and we'll have, you know, purebred ones at some point. I don't know. I have high hopes for Mary. I think Mary and Nate would make a beautiful couple. They're five. Okay, but it gets to the question from this high school professor, because some of the problem for ACS is what is the answer to federalism. Now, initially, it was living constitutionalism, which, here, let me read you what is in this article. Liberals have come up with a variety of alternatives to originalism. The most famous is the one associated with the great liberal justice William J. Brennan Jr., who endorsed a, quote, living constitution, whose meaning changed over time to reflect, quote, the adaptability of its great principles to cope with current problems and current needs. Former Justice Stephen Breyer, who was appointed by a Democrat, embraced a pragmatic approach, endorsing what he called workable solutions to constitutional dilemmas. Justice Kagan, also appointed by a Democrat, has made a touchstone of her jurisprudence, respect for precedent, which, she has said, promotes the even-handed, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. There is even a liberal take on originalism embodied in the work of professors Akhil Ritamar, friend of the pod, and Jack M. Bulkin, both at Yale Law School, Yale, which seeks to find an expansive understanding of constitutional rights in the original meaning of the document. For all of their intellectual appeal, none of these alternatives to originalism have attracted much interest in the broader public. And that was sort of the punchline of the whole piece. It's like the Fed SOC was actually willing to say, here's what we believe in, and you can attack it and criticize it, but we're actually going to stand for something. And ACS has been unwilling to do that, and it seems like this new iteration, which they've even said, is intended to be opposition to Trump. The new president has described ACS as building, quote, a bulwark against overreach by the Trump administration and the Roberts court. I don't think you'd ever hear FedSoc define themselves in terms of a specific president or partisan label. Yeah, I think FedSoc had two very distinct advantages that put it where it is. So advantage number one is, now, I think what you're saying about that conservative students felt embattled for a very long time on law school campuses. When I was in FedSoc my 1L year, there were 12 of us, 12 of us, very divided 12, by the way. It's like six versus six. And on who – this is a very quaint early 90s argument, which was, is the future of the Republican Party socially conservative and economically conservative or socially liberal and economically conservative? And I was on the social conservative, economic conservative side of that fight. Turns out we were all wrong. It's socially conservative and economically liberal. Nobody had that on their bingo card. Nobody had that on their, no. And so, but FedSoc, yes, you were a small group of people who were sort of against a larger culture or felt embattled by a larger culture. And that did create that kind of band of brothers and sisters sort of mindset. But there were two things that the Federalist Society did that were very important. Number one was they engaged the community through debate. So FedSoc was about the only place for a very long time, and I think law schools have improved. They've gotten better. FedSoc was the only place for a very long time where law students could hear a conservative legal perspective. And the way that they would do it is they would set up a debate, and it usually wasn't anything like you see. I used to be on that debate circuit, and nobody would ever think my goal is to have a viral moment. So it's like David French owns liberal professor. No, nothing like that. It was really discussion. It was dialogue. But it was the only place where students could see conservatives and liberal law professors, practitioners in conversation with each other in a serious way where conservative ideas were taken seriously. And there would be times back 15 years ago where I would get on the road and I would just go to law school after law school after law school and do these FedSoc debates. and I think they were incredibly valuable. I interacted with a lot of deans who were very grateful for it because it enriched the intellectual life of the school. And then so you have the method, which was debate-centered, very respectful, but very, you know, you were firm in your convictions, but you were respectful in your argument. Combine it with the band of brothers and sisters and then an idea, originalism, that is easy to articulate. It is easy to explain. Originalism, in a lot of ways, when you know it and understand it, it's a pretty easy philosophy to defend when it comes to law because it's rooted in text. And when people think about law, they think about text. And one of the reasons why I, in my view, a lot of the liberal philosophies have not taken hold is because they have de-emphasized text. And so it's a kind of a heavy lift to get to somebody and talk about law when you're de-emphasizing text. And so in just a normal, average, everyday person, one of the first questions they're going to ask about a law is, what does it say? What does the thing say? And so Federalist Society had a very good answer about what is our legal philosophy. It's rooted in the words on the page. And what do the words on the page mean? And so I found this article interesting because of the philosophy. I thought going forward, let me put on my hat, If I was going to advise the ACS right now, here's how I'd advise the ACS. I'd say forget this living constitutionalism stuff. Forget positivism. Here are two ideas that I think you could really land on that could resonate. One is Akil Amar's liberal originalism. And what liberal originalism has going for it is it has all of the advantages of original originalism. It's text. and then you're adding into the fact that if it's text, history, and tradition, I guarantee you what we've talked about until we're blue in the face on this podcast is that the history is really messy. And when you get liberal scholars doing liberal originalist jurisprudence and liberal historians looking at history with an eye towards jurisprudence, you're going to find a lot of things in American history and a lot of laws in American history that are quite supportive of liberal ideas and liberal interpretations of constitutional provisions. But then the other one is, and I don't hear this talked about much, but it was all the rage. It was the alternative to critical theory when I was in law school, and it's called Dworkinism or interpretivism. And essentially what Dworkinism or interpretivism says is it says what the Constitution is doing is it's articulating some very powerful moral principles. So the text really matters. You view due process as a moral principle. Free speech is a moral principle, and the laws are derived through precedent from that moral principle. It looks at the Constitution less like a statute book, as a statute, and looks at it more like, say, the mission statement of a corporation. This is who we aspire to be, and then precedent works out that moral principle. So I think both of those have an advantage over other more liberal jurisprudential philosophies of centering the text. What does the law say? And then you're moving from that standpoint. I don't know that anyone's going to take my advice on this, but I actually do think that if you're wanting to formulate an alternative to originalism, which I never in my life thought it would become like the world-destroying super death star of legal philosophies. I mean, we always thought of ourselves as the rebel alliance. You know, like we were looking for the exhaust port. Like that was that what we were doing But if you laughing then you one of my people And so I do think that you know I never thought we had reached this point but I think that the power of the originalist argument is really rooted in it. It connects with how people already think about law. It doesn't contradict what people already think about law. So I think we finally have an alternative to Grifter Sarah. It's ACS David. Oh, man. Sarah, if you say that too many times it'll be all over Twitter David French is now an ACS I think also just to go back to the high school teacher's question so A, part of the reason that we don't sit down and lay them all out is because there aren't a lot going right now I do have a glossary in my book of them though but I also think you can see the history of legal thought in the United States as always being something versus judicial realism. And the idea of judicial realism is like judges are politicians in robes. They're trying to get to specific ends. And I don't think any one partisan side owns that. I think currently the left has really been, what's it called when you're like sitting in a bath feeling sorry for yourself for too long? Like that's what they're doing in legal realism and they just can't get out of the legal realism bath, even though it's not good for them. And like eating bonbons all day will not make him take you back. but the right is just as open to legal realism as we've seen, obviously. And it's like, ends justify the means. We just want the outcomes we want. That's all law really does anyway. Everything else is this fig leaf trying to pretend that we're doing something else, but we all really know, wink, wink, this is the game. And so you're always looking to be in one of those two camps, I think. And I think that our podcast is basically a constant war against legal realism. Right. Yeah. I would say that that would be the subtitle, fighting legal realism since 2019. Yeah. No, I think that's a really good point. And there's a constant temptation, as you were saying. It's a universal temptation. And I would say pre-originalist Republican judges were often quite realist and they were also quite statist. And so a lot of people will be surprised by this, but there is back in the day when I was practicing. I'm now officially old enough I get to say back in the day when I was practicing. As a conservative making a free speech or free exercise argument, you're going to be surprised at the last circuit I wanted to be in, the Fourth Circuit. The Fourth Circuit at that time was heavily Republican-nominated judges, and they were all very plaintiff unfriendly. They were very – they loved them some qualified immunity guys. They were very government-friendly. They were very plaintiff unfriendly. And so even though I would have these cases that were, you know, culture war coded all the way to the conservative side, I knew walking in the door of the courthouse in the Fourth Circuit, I had to overcome a lot to get them to really take a look at, you know, at my plaintiff's case. And I tell that to people now, and they're kind of head-scratching because you think, well, if I'm walking in with a pro-life group that was just thrown off a campus, a Republican-nominated judge, you know, like just – you know nothing else other than they're nominated by a Republican. and you would think, okay, well, they might be at least open, very open to my argument. And at that time, it really was the case that it was very, very difficult, that the ascendancy of originalism and conservative jurisprudence happened about five minutes ago, historically speaking, truth be told. And it happened with shocking speed. All right, I'm going to end with the last paragraph from this piece that I thought was well put. The members of the Federalist Society took the risk that Democratic legal thinkers have so far avoided. Though the Federalist Society does not as a group take formal positions on issues, the Federalists gave a platform for their clear agenda and absorbed the criticism that came with it. But when they won elections and thus seats on the Supreme Court, they knew what they wanted to do and why, and they changed the face of American law. Democrats can do the same, but first they have to try. Or, in my words, get out of the bathtub. All right, let's talk about this AI case that was decided by Judge Rakoff, one of, if not the most respected district court judges out there on the Southern District of New York. He denied the claim of defendant Bradley Heppner that documents prepared by Heppner using the consumer version of the AI model for Claude for legal research were privileged. Why were they not privileged? Facts. Heppner had been communicating with Claude about factual and legal issues in his case in anticipation of litigation. He incorporated information conveyed to him by his lawyer during the course of the representation into communication with Claude. He had intended to share the resulting AI-generated documents with counsel and did in fact share those documents with his counsel. Nonetheless, Rakoff rejected both the attorney-client and work product privilege claims. So, okay, to break this down, David, let's put this in our own facts. You're the attorney and I'm the client. You prepare some documents for me on like a settlement proposal, but I don't understand all the terms. So I put the settlement proposal into AI. And I'm like, what does this actually mean? Is this a good settlement? Should I do better? like, is my lawyer an asshole? And AI is like, oh, you could change this. You could change this. I like, oh, those changes look pretty good. And I sent it back to my lawyer and say, what do you think of these changes? Should that be privileged? It was product from the lawyer to the client. And then I, the client sent it back with changes. Why would that not still be privileged? It would not be privileged for the same reason that if you took all of that information and And then you started Googling each provision in the contract to see what Google had to say about it, to see what other people had to say about it. If you're a client and you're in a case and your Google search history is a discoverable thing, it absolutely is. How do I dispose of a body? Yeah. How many people? Did the trick on Breaking Bad really work? And so in that sense, I think we're at an interesting point in the law where the law is going to see AI for one thing, but AI developers see it as something else. So for example, let me use an example we were talking about earlier today. I don't know if you guys followed when Grok has run amok a few times. So Grok suddenly started liking Hitler. That was weird. then Grok began to allow people to do this really gross thing that if the woman was on Twitter you could say Grok put them in a bikini or whatever and Grok would generate and Grok for those who don't know is as Twitter's ex's AI platform it's Elon Musk's AI and it was doing this and then it was doing this in some cases with children okay and so you're having child sex abuse material arguably being created by an AI. Well, obviously, you're not going to sue an AI. You know, David French v. Grok. Like, that's not a thing. AI is not a Cylon yet, okay? So, there's people, human beings who are responsible for this. And so, but the human beings who are responsible for it are trying to create something that feels pretty autonomous, that acts pretty autonomous, but they're going to be liable for its content. They're going to be liable for what it does. And that is going to hang over AI development generally, but it's also quite relevant to this discussion because this is not like, sort of say, getting a second opinion from another lawyer, which would be privileged, right? If you called another lawyer and you said, I've got this contract, please take a look at it. Or my attorney has given me some advice that I think is not quite right. Will you take a look at it? Absolutely, that would be privileged, getting that second legal opinion. But this is going to essentially Google on steroids and HGH and everything else. It's obviously much more capable than Google, but it's still fundamentally a bunch of code. It's not a lawyer. But under that theory, okay, so right, like AI is no different than Google. Why is that any different than email? Like if only product that I literally say to my lawyer can be protected, then how come any electronic communication isn't vitiating privilege? But if I email – so if I'm your lawyer and you're my client again sticking with this, if I give you some information and you're not quite sure about it and you email your cousin who's an engineer but listens to advisory opinions to get their take on it, that's not privileged. Of course, but that's the third person that has now been introduced to the conversation. The email itself is an electronic sharing of the information. What if the email had AI built into it? Like, how would that be any different? The email itself is a bunch of code. Google is a bunch of code. AI is a bunch of code. We're not introducing a third person that could break privilege. But you are communicating with a third. So Google right now, your Google search history, that's not communicating with a person. It's communicating with code. And you're getting a response with code back. And that communication is not privilege. When I misspell a word in my email, it tells me I misspelled it. And it suggests a different spelling. That is a very primitive form of AI. Sure. I misspell a lot of words. I have no idea how to spell the word guarantee, fun fact, or bureaucrat. I know what they start with. Literally the first letter. I don't know the second letter. There are some words that's taken. I still don't. When I teach, I write on the board, and then sometimes I will literally pause mid-word. That would be my nightmare. And then I switch the word quickly because, yeah, anyway. It's very hard for me to see a scenario where they're going to pull this out of the Google search type context. And Google searches, by the way, are getting heavily AI influenced because your opening response now is AI. But so is email. It's suggesting what I write back as well. So two interesting points from Rakoff. One, he really highlighted the fact that this was the open Claude, as in Claude could use these questions to train. And so you had no, you know, you weren't doing this in a closed circuit. So in that sense, it's not like email. It was more like putting it on like a bulletin board outside and being like, it's attorney-client privilege. And you're like, why is it on the bulletin board? Second, expectation of privacy, which is related to the first point. But he was like, this is all about whether the client had an expectation of privacy. One could imagine a different AI-involved scenario where you really do have an expectation of privacy. You thought that you were doing something that was privileged and that that itself could potentially factor in. But when you're putting it into the publicly learning Claude, you didn't have an expectation of privacy. You're not a total idiot. You know how Claude works. Therefore, it was in that sense more like having not just a third person in the room, but like a gazillion people in the room because now anyone else using Claude in the sort of most remote theory of how AI works has, quote, access to whatever you asked it. Yeah, and so I think it's going to actually be incumbent on attorneys to start to say to clients, hey, when you're walking through what is privileged, what is not privileged, whatever you put in Google, your Google searches are not going to be privileged. And you need to add in the chat bots as well. You're going to have to look. Be careful with what you're going to ask chat GPT about what I tell you. Because clients do double check you. They are often skeptical, especially if you tell them something they don't want to hear. They're going to run around and try to fact check you. And normally if they're fact checking a legal opinion that they've gotten, they're going to often try to fact check it through another attorney. in the same way that you get a second opinion from a doctor. But in this case, if they're trying to fact check you, evaluate you, whatever, through chat, through Gemini, through Claude, all of them, I mean, I would be, if I was still practicing right now, as soon as I saw that, I popped it right into our slack. And I said, I think we could spend a whole hour actually on this and the way in which AI is influencing the legal profession. And I think we do need to spend more time on it, on AO, as the uses of it are evolving. But for right now, guys, don't use ChatGBT as your backup attorney and expect it to be privileged. Especially when the FBI comes the next day and arrests you and seizes all your electronics. That is more like Googling, how do I dispose of a 117-pound body? How much acid do I need? Those are all real Google searches, by the way. Oh, for sure. There was a guy who was testifying yesterday, like an FBI agent, who's like, you know, you have to authenticate the stuff. So he literally has to sit there and read the Google searches. And yeah, it was like, how do I dispose of the body? How deep do I have to bury it? You're like, gee, did he kill his wife? I don't know. Yeah, who knows? Yeah, hard to say. David, before we go to questions, let's do some boneless chicken wings. Now, the last time we talked about this, it was in Ohio State Supreme Court, and they said that labeling something boneless chicken wings on your menu was not in fact a promise that it was boneless in this case however in the ohio case the guy ate a boneless chicken wing that we all expect to be a saucy nug and there was a bone it got stuck in his throat got super infected like he's in the icu he needs surgery it's like the worst case scenario, BW3 gone bad. It's awful. This is like American litigious society a la de Tocqueville at its worst. Oh yeah. This is a defendant, apparently. Let me just begin with the introduction. What's in a name? If we call a wing by any other name, would it smell as sweet? The plaintiff, Eamon Halim, says no. The defendant, Buffalo Wild Wings, sells a product it calls boneless wings, which are essentially chicken nuggets, pieces of chicken breast, deep fried and tossed in whatever sauce or dry seasoning the customer wants. Halim apparently found this confusing. He claims that he thought boneless wings were real chicken wings with the bones removed. So he wanting wing meat in the boneless wing He says a Buffalo Wild Wings product should be called something different something like chicken peppers No poppers Sorry chicken poppers Sorry 57 eyes Okay. Halim sued Buffalo Wild Wings over his confusion, but his complaint has no meat on its bones. Okay. So there's two things about this. One, which is Mr. Halim had some bad facts. All So one of the bad facts was that Halim says the fact that the restaurant is called Buffalo Wild Wings and that boneless wings are presented as an alternative to traditional wings means that reasonable consumers would think boneless wings are made from wing meat. But Halim's arguments apply equally to cauliflower wings. Cauliflower wings are sold at Buffalo Wild Wings under the wings section of the menu and are presented as an alternative to chicken wings. If Halim is right, reasonable consumers should think that cauliflower wings are made, at least in part, from wing meat. But they don't. A reasonable consumer would not think that buffalo wild wings, boneless wings, were truly deboned chicken wings, reconstituted into some sort of frankenwing. And by the way, I mention this line not only because it's delightful, because also some clerk had to sit there and decide how you're going to put frankenwing in the opinion. And this clerk, shout out to whoever you are, went capital F-R-A-N-K-E-N hyphen wing. No, that's incorrect spelling. How many drafts did they go through? And they got it wrong. It's lowercase f, one word. But anyway, so I bring this up because it's funny for a main reason. But the second reason is there's actually an interesting question here, Sarah, that I want to ask you. because it's actually related to something we wanted to talk about but haven't. And this was – there was recently a decision written in joining – or I can't remember if it was in joining a Trump practice or a habeas decision, but it was where a district court judge was very upset with Trump administration actions, and he wrote an opinion that was a lot of – it was a lot of sort of founding rhetoric and very little law. We had an opinion like this during the COVID on the other side where a more conservative judge wrote an opinion very laced with a lot of rhetoric and very little law. And so people are critiquing this by saying you can't – you shouldn't be having – if you're going to be writing a judicial opinion, play it straight. Take it seriously. Play it straight. Do it in the normal professional manner. And so my question is, when do you think – so I'm all about this. Like I'm – I think it's a frivolous lawsuit. I think the reasoning is sound, dismissing it, and having a little bit of fun with it, I'm good with it. But I also at the same time did not like those other two judicial opinions that were very, very heavy on rhetoric and very sort of light on legal reasoning. Where do you draw that line? How much creative flexibility are you willing to sort of – do you think is appropriate? taking joy in humble cases is a good thing yeah snark and sarcasm are a bad thing now like what's in between those two like there's some judicial temperament and judgment to be had what if i'm just really pissed and i want to put down the entire text of the declaration of independence what i think is actually not included in either of those really is sort of high dudgeon self righteousness about something that has clear political overtones, implications, etc., which is far more, I think, what you're talking about. I mean, I was annoyed by that opinion. There's biblical citations at the end. The New York Times republishes it in a full-page annotated thing, which I'm like, you're not doing that because you think this is an interesting legal opinion or even a correct legal opinion. You like it because it's owning the right or owning Trump or whatever, I think judges should avoid being used in that way. Yeah, I don't like those kinds of opinions. I love me some Declaration of Independence. I love me some scripture. Using them in the appropriate place, in the appropriate time, I love that as well. But essentially, using it as almost as if it's like, the best way to describe it would be a furious, angry speech on the House floor or the Senate floor. And that's, leave that for the House and the Senate. And to be clear, I think you can cite the Declaration of Independence, quote the Declaration and all sorts of judicial opinions. I think you could have done it in the saucy nug case. Totally. Not, I mean, maybe like grievances, like this isn't why we broke from King George that you could dictate to Buffalo Wild Wings what they call their wings. Something like that. Yeah. Yeah. You guys know I have real beef with King George still. Okay, we're going to questions. Hi, thank you all for being here. I'm Kasdan. I wanted to ask about the Judge Rakoff opinion and how you think the analysis might differ if it was the attorney who put the information into some sort of open source AI. And I know attorneys typically can't, they don't own the privilege, so they can't break it. But when you have an attorney doing the same thing, I mean, I often turn to Google as at least one stop along the way of my own legal analysis. Why should the rules be different? Do you think the rules would be different? How would you anticipate that doctrine would develop differently, if at all, if it was the attorney as opposed to the client who was sharing the information? So I think attorney-client privilege is a far less interesting part of that analysis compared to work product and the principle behind work product, which is to allow the attorney to have a thought process and be able to think, for instance. So if you were sitting on the Amtrak and someone was behind you looking at your screen and saw what you were writing, I think that would still be protected by work product privilege, even though you should have known that someone was sitting behind you. By the way, don't do that, lawyers. You should have screen protectors and not let that happen. But I don't think it becomes unprivileged. I think you're just like a bad lawyer. Although I will say it's annoying to fly with husband of the pod and he has the screen protector, so I can't tell if he's working or just playing a video game. So I don't know when to interrupt. but yeah get a screen protector so what's interesting about attorney client privilege or work product stuff is that unlike so many other parts of the law where we're going back to some specific text those you really do go back to why we have them and are we sort of protecting the principles that concept it's almost like a common law doctrine so I think work product would be much closer there if the attorney were doing it and I think it would be fine, even if the attorney screwed up and put it into the public clod versus the closed universe clod. Where I think it would get hard potentially is that they intentionally, like, knowingly put it into public clod, knowing that it would train on it, and there was some maybe benefit to the attorney in doing so because they could draw on, you know, other attorney work that way. That you might have a problem with. And that's not really an equivalent to Google in that sense. but I don't have another equivalent. Yeah, I mean, I think that would be very much work product. Back in the day, are you all old enough at least to know about the Who song Pinball Wizard? I could do it all right now. Oh, excellent. Well, back in the day, I don't like to brag, but I was a Westlaw wizard. But you would never think to somebody try to discover my Westlaw searches, which would actually be quite illuminating about my strategy. They would be quite illuminating about how I was thinking about the case. But it's what I'm doing in my office as an attorney to represent my client. But if you sent the client the memo citing a case and then the client put that case into Westlaw, is that protected? The client's search in Westlaw of a case that they only learned about because of the memo the lawyer wrote them? No, I don't think so. I don't think so. I could do this all day long with this question. It's absolutely fascinating. David, you were afire. What are your views about instances of censorship that we see coming from Europe on freedom of speech, freedom of religion, and do you expect that it may ultimately impact Americans and their ability to say what they think while transferring at Heathrow Airport or somewhere else in Europe? So are you talking about the investigation of foreign students and things like this? Is that what you're referring to? No. I'm talking about European government's efforts to censor... Oh, okay. I was thinking about campuses. I'm sorry. Yeah. So I am really not in love with the European framework of free speech. I think that I would have to probably retroactively quit from FIRE, even though I've already resigned from FIRE years ago. I'd have to re-resign from FIRE if I approved of European free speech rules. sadly I think we're moving in this country we're moving more towards that regime at the moment and it's very distressing to me I saw a very interesting graph the other day and it was taking FIRE's data and FIRE has a whenever someone demands that a scholar be fired and they have a scholars under FIRE database they will ask the question does the attempt to censor the scholar come from the left of the scholar or come from the right of the scholar. And for years and years and years and years, it was overwhelmingly the case that attempts to censor people on campus came from the left of the speaker, which makes a lot of sense. Campuses tend to be well to the left of the average American institution. Around 2021, 2022, that's changed and changed dramatically. So now the large majority of efforts to fire or censor on campus come from the right. And it's actually a very interesting phenomenon because back when I was president of fire and we were first interacting with college administrators, one of the arguments we made to them consistently is why do you assume that you and your ideological allies will always be in charge? That the censors are not always going to be the people you want to be censoring. And they would look at us like we landed from the planet Mars. Like, what are you talking about? You know, there was this sense that we will always be in control. We will always be in charge. We can shape and define and set the course of the institution according to our values and our mores. And we should have the power and authority to do that, even if we are a state institution. And they were just completely not hearing the idea that the tables could turn. Well, the tables have turned in a very, very big way. And so now you're in this position of, for example, I wrote in the Times not long ago about the efforts, the Trump administration's efforts to forcibly reform a number of Harvard University's policies. And some of the efforts are completely legal and completely fine. Some of them go way beyond and violate the First Amendment. And I remember her writing, I have a complicated relationship with this school because it is both the worst school in America at that time for free speech and also still had its own free speech rights. And this is one of the things that if you do free speech law, you're constantly interacting with, is the idea that I am supporting the free speech rights of people who, if they gained power, would happily censor. But they still possess free speech rights. And so I think what we're seeing is a European model of state-centered value shaping really intruding into the American public square. And you see it from the left. I've seen it from the left for years on college campuses. We're now seeing it from the right, this idea that the power of the state really should prioritize shaping the fundamental values of the citizens. And whenever you take that as an approach, the temptation to censor, especially a temptation to censor on matters of faith, on matters of fundamental worldview and ideology, becomes overwhelming. Because when you send to the state that kind of idea and assign to the state that kind of role and responsibility, the temptation towards authoritarianism is overwhelming. All right. That's the end of our advisory opinions episode. thank you guys so much for joining us and congrats to whoever has won a preview copy of my book. That's terrifying because you'll be like the first person to read it basically. So please like it. Also shout out to husband of the pod and judge star who are both currently at their respective homes, almost certainly cleaning up kid vomit. So thank you. You dedicated dads out there, All of you vomit-cleaning dads, we love you. And thank you to SMU Law. Really appreciate you guys having us. Thank you very much. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of The Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up at thedispatch.com slash join. And if you use promo code AO, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership at thedispatch.com slash premium. 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