PrawfsBlawg

I’m confused. If you read current judicial opinions, you will see that some refer to the “Department of Defense” and others refer to the “Department of War.” I don’t know what criteria these courts are using, because as far as I tell they do not explain their terminology choice.

You might think that an opinion that refers to the Department of War in a challenge to an action by that Department might be more likely to reject the challenge and vice versa. That’s an empirical question, of course, though I would note that the DC Circuit’s new opinion denying Anthropic a stay chose “Department of War.”

Thanks to the participants in our Book Symposium on Elizabeth Chamblee Burch’s The Pain Brokers: How Con Men, Call Centers, and Rogue Doctors Fuel America’s Lawsuit Factor.

Below are links to every contribution:

Myriam Gilles

Brooke Coleman

Anthony Sebok

Brad Wendel

Renee Knake Jefferson

Beth Burch

I also will link to JOTWELL reviews of Beth’s book from Anthony and Seth Endo later this month.

The final word in our Book Symposium on Beth Burch’s The Pain Brokers goes to, its author, Elizabeth Chamblee Burch (Georgia). I will put up a post later today collecting everything from the symposium.

I have been writing about multidistrict litigation since before I graduated from law school in 2004. When I reached midlife, I began to wonder about the point of my efforts—what, if anything, has changed? The answer: not much. Maybe not anything.

Most stakeholders in mass torts—plaintiffs’ attorneys, defense attorneys, and MDL judges—have a vested interest in the status quo. Lawyers on both sides are mostly repeat players who have grown rich from MDLs. Judges (with some notable exceptions) favor settlements and lack incentives to look too deeply under the procedural hood. These are the people I have been writing to for over two decades.

The thought that one more law review article might do the trick was laughable.

So I did what academics do and went back to school to get an MFA in narrative nonfiction from UGA’s Grady School of Journalism. Over the course of two years, I shed legalese and learned how to interview and write for story. I met with pelvic-mesh plaintiffs in forlorn long-term stay motels, former kingpins in upscale Italian restaurants, insiders in Las Vegas’s Mass Torts Made Perfect, and felons in Brooklyn’s federal courthouse. They recounted the kind of stories that do not appear in polite small talk or law reviews. Those true tales became The Pain Brokers.

At its heart, the book is about misplaced trust, systemic failings, and American greed. So much greed. It centers on a scheme to lure women with pelvic mesh to south Florida to have it removed at seedy chiropractors’ offices to jack up the value of their settlement and benefit the plaintiffs’ lawyers, doctors, and medical funders—but not the women. Had women used insurance and a real hospital, it would have cost them somewhere between $600 and $1,000. A spin through the removal mill ran $69,000 to $120,000.

Why might women do such a thing? A data breach in India gave callers their most intimate medical details, and they used that to convince mesh patients they had a ticking time bomb in them, had to fly to Florida immediately to have it removed (or they would die), and wouldn’t have to pay a dime. Some women even thought the calls were from the mesh manufacturers themselves.

The book is also about two unlikely allies: Barbara Binis, who grew up in blue-collar Buffalo as the oldest of five children in a strict Catholic home, is a seasoned Philadelphia defense attorney hired to do financial damage control for a mesh manufacturer. J.R. Baxter, a newly minted small-town Arkansas lawyer who shunned big law to join his dad’s solo practice, is trying to achieve justice for the three women at the center of the book—Jerri Plummer, Barb Shepard, and Sharon Gore—along with over 180 others.

There are lots of other colorful characters too, like a 6ft plus hulking figure with a flamingo pink goatee, a call center salesman in Versace with gold-rimmed, rose-colored aviator glasses, and a former Marine Corps company commander with arm-sleeve tattoos of the grim reaper and the angel of justice. They used their ill-gotten gains on fleets of luxury cars, ox-blood red alligator-skin boots, and platinum toe-rings for their mistresses.

So many failings enabled these shenanigans: medical device companies placed pelvic mesh on the market without testing it for that use beforehand. The FDA approved mesh through a loophole: the 510(k) submission process. And as the mesh began to unravel in women across the globe, lawyers, doctors, litigation/medical funders, call centers, and middlemen swarmed to milk every cent possible from injured women. Add to that the growing number of states that allow nonlawyers to form law firms with lawyers, and Hippocratic oaths, professional ethics, and morality be damned.

Backend enforcement gaps add to these failings: state and federal prosecutors have only so much time, criminal statutes of limitation can inhibit charges, and there is no federal anti-kickback statute that covers medical liens.

It’d be nice if we could chalk these failings up to a perfect storm that is unlikely to occur again, but that’s simply not the case. Just a few weeks ago, a telehealth company (GuardDog Telehealth) admitted to accessing patients’ medical records to sell them to mass tort plaintiffs’ lawyers.

As I speak about The Pain Brokers to audiences across the United States, I’m asked what we can do to fix it. If only I had a thirty second salve.

I have written extensively about the ways we might improve MDLs. Here are a few:

• Judges should consider conflicts of interest and adequate representation in selecting lead lawyers and then ask plaintiffs to evaluate leaders as their case winds down. They can also nudge lead lawyers by tying their common-benefit fees explicitly to the benefit that those attorneys confer on the plaintiffs as opposed to the sticker price of the settlement fund. And by regularly remanding cases that are not served by centralization as well as plaintiffs who do not want to settle, judges can dislodge the omnipotence lead lawyers exercise, encourage lawyers to take only those cases they’d be willing to litigate, and give plaintiff the freedom to have their day in court.
• Open courts to plaintiffs by allowing them to watch proceedings online.
• Lawyers or courts should setup online groups or forums where plaintiffs can exchange information with one another and communicate with lead lawyers without endangering attorney-client privilege.
• Increase jurisdictional redundancy and access to appellate courts to increase reviewability, test creative procedural mechanisms, and develop substantive law.
• Require lawyers to take their contingency fees out of the net fees (after costs) rather than the gross, to encourage fiscal responsibility.
• State bars and MDL judges should take plaintiffs’ complaints about their attorneys’ ethical failings seriously and sanction, discipline, and disbar individual lawyers as appropriate.

To be sure, none of these proposals touch many of the failings identified above, including the lack of universal healthcare and whether professions like law and medicine should be allowed to self-enforce.

I have many thoughts, but few easy answers, which makes me exceedingly grateful to have all-star academics like Brooke Coleman, Myriam Gilles, Renee Knake Jefferson, Tony Sebok, and Brad Wendel weigh in. I hope this is the start of critically important discussions that lead to actual reforms to improve every aspect of these widespread failures without impeding Americans’ access not just to the courts, but to actual justice.

Steven Lubet has a new essay on  Slate about the connection between birthright citizenship and John Brown. Here is the beginning:

Within the first moments of his argument before the Supreme Court, U.S. Solicitor General John Sauer asserted that birthright citizenship extends only to children whose parents owe “direct and immediate allegiance” to the United States, a phrase that is not found in the relevant passage of the 14^th Amendment.

As it happens, however, there is a direct precedent under U.S. law, well known to the drafters of the 14^th Amendment, explaining that the demands of allegiance attach even to temporary or unlawful entrants.

On the night of Oct. 16, 1859, John Brown led a small army of 22 men from Maryland into Virginia, where he intended to free the slaves. 

Brown himself was captured alive and indicted for the capital crimes of murder, insurrection, and treason against the Commonwealth of Virginia. 

Brown’s attorneys repeatedly moved to dismiss the treason count, noting that conviction required a “breach of allegiance, and can be committed by him only who owes allegiance either perpetual or temporary.”

The prosecution responded that Brown’s very presence in Virginia imposed an obligation of temporary allegiance.

Judge Richard Parker agreed with the prosecutors.

By the time the 14^th Amendment was drafted, in 1866, every member of Congress would have been acutely aware of Brown’s trial, which had been held only seven years earlier. If they considered the history and tradition of allegiance, as the Trump administration maintains, Brown’s execution for treason, based on his imputed allegiance to Virginia, which evidently attached the moment he crossed the state line, would have come immediately to mind.

The question of whether a President can withdraw the United States from the NATO Treaty contrary to an Act of Congress saying that he cannot without a two-thirds vote from the Senate is fascinating but probably not justiciable.

Who would have standing to challenge the abrogation of a mutual defense treaty? No private rights are impaired. The foreign sovereigns cannot bring an action in the domestic courts of the treaty-breaking sovereign and expect a remedy. Even if they could, what would the remedy be?

As a political question, though, the Act of Congress would give a future President a strong ground to say that the prior President’s abrogation was unlawful. In this sense, treaty abrogations (at least in this context) can be viewed as a non-justiciable executive order that cannot bind successors.

I’m not an expert on treaty practice. Has any treaty even been repealed by a two-thirds vote of the Senate? We did enter into new treaties that repealed or superseded old ones (with Native American Tribes, for instance), but there are no outright repeals that come to mind.

Judge Richard Leon is now known for opinions that use a lot of exclamation points. You may think that this is only a modern turn driven by social media. But you would be wrong! There is precedent for this in the Supreme Court.

It appears (pending further research) that Justice McReynolds invented the judicial exclamation point. Here are parts of his Nebbia dissent in 1934:

“Demand at low prices being wholly insufficient, tlie proposed plan is to raise and fix higher minimum prices at stores and thereby aid -the producer whose output and prices remain unrestrained!”

“You cannot procure a quart of milk from the grocer although he is anxious to accept what you can pay and the demands of your household are urgent!”

“The fanciful scheme is to protect the farmer against undue exactions by prescribing the price at which milk disposed of by him at will may be resold!”

UPDATE: I was wrong! John Marshall used an exclamation point in Marbury!

Some questions.

• What is the hypothetical viewpoint-neutral-but-content-based regulation of talk therapy that she has in mind?

• Could a client injured by conversion talk-therapy win a med mal case under the majority opinion or under Kagan’s approach? So this case becomes about a state’s specific restriction on some therapist speech, while leaving room for liability under content-neutral med mal laws?

• My trans-but-free-speech-maximalist son was livid about this, especially Kagan and Sotomayor. The ordinary defense of the Court’s insistence on viewpoint neutrality–this means Texas or Florida attempts to ban gender-affirming talk therapy also fail–did not mollify him. Not because the Court’s conservatives will reverse course when the political valence goes the other way, although that is possible (and certain with at least two of them). But because the harm of allowing conversion therapy outweighs the harm of losing gender-affirming therapy (which happens more in the shadows in any event). Not sure if this is empirically true; it instinctually makes some sense.

Scott Dodson (UC-San Francisco) shared the following with me. Note that I think AI (as everyone is attempting to use it) is categorically evil. But Scott is a friend, so I will offer him a forum to share his handiwork:

In yesterday’s oral argument of Jules, Justice Alito asked, I assume jokingly, “Well, just out of curiosity, do you think we should ask Claude to decide this case?”:

Well, I did just that. Here’s the prompt I gave to Claude, and here’s the result. If you think it might be of interest to Prawfs readers, feel free to post about it.

Prompt:

Write an opinion for the Court by Justice Kagan, in the style of Justice Kagan, resolving the case of Jules v. Andre Balazs Properties. Use the following sources: Lower-court opinion: https://www.scotusblog.com/wp-content/uploads/2025/10/USSC-Petition-for-Writ-of-Certiorari_Jules_v_Andre-Balazs-Properties.pdf#page=39 Oral argument: https://www.supremecourt.gov/oral_arguments/audio/2025/25-83   Petitioner’s brief: https://www.supremecourt.gov/DocketPDF/25/25-83/391951/20260116122533610_25-83%20Brief%20for%20Petitioner.pdf   Respondent’s brief: https://www.supremecourt.gov/DocketPDF/25/25-83/396498/20260217162302726_25-83%20bs.pdf

Here is the opinion Claude produced.

Essay # 5 in our Book Symposium on Beth Burch’s The Pain Brokers, by Renee Knake Jefferson (Houston).

If you’ve been following the essays in this symposium on Elizabeth Chamblee Burch’s compelling new book, The Pain Brokers: How Con Men, Call Centers, and Rogue Doctors Fuel America’s Lawsuit Factory, by now you should be convinced it is a must-read.

Burch, a University of Georgia law professor and nationally recognized expert on mass tort litigation, spent two years conducting more than 150 interviews in motels, law offices, and roadside diners across the country (p. xi). The result is a work of narrative nonfiction that reads more like a crime thriller than a legal treatise.

It is worth taking a moment to appreciate how this book came to be. It is a product of Burch’s decision, as a tenured law professor, to enroll in the MFA Program in nonfiction at the University of Georgia’s Grady School of Journalism. Her commitment, in her words, “to turn the injustices of mass tort litigation into a story for general readers” (p. 291) is impressive. We might benefit from more academics investing time and energy into making their work accessible to readers beyond the so-called ivory tower. Burch is a gifted writer. Her book will keep you up late and haunt you long after you read the last page. I can already see it being made into a miniseries (think Jonathan Harr’s A Civil Action meets Apple TV’s Palm Royale set in 2015 instead of 1969—much of the action happens in Florida).

Burch exposes how the legal system facilitated a profitable market fueled by the pain of women injured with defective transvaginal mesh. What makes Burch’s analysis especially disturbing is the vivid portrayal of women who face life-threatening medical conditions with increasingly less ability to make informed, safe choices for their reproductive health. It is yet another example of how the legal system in many jurisdictions denies women full bodily autonomy.

Along the way we meet Sharon Gore, Jerri Plummer, and Barbara Shepard, three women who were each victimized twice: first by the unnecessary removal of their pelvic mesh and again by the legal system which should have compensated them, but instead rewarded those who took advantage of their suffering. These women, many poor and in chronic pain, were recruited through predatory telemarketing, transported to a fly-by-night pseudo-surgical center set up in a Florida office park, subjected to unnecessary or botched procedures, unwittingly saddled with high-interest loans when their insurance would have covered treatment, and then funneled into mass tort cases where the primary beneficiaries were not the victims but the lawyers and middlemen who had assembled the “inventory” of women in the first place (p. 49).

The scheme involved a network of con men, rogue doctors, and call-center operators who exploited tens of thousands of women. At the heart of the enterprise was what Burch labels a “LINO”—a law firm in name only (p. 8). According to Burch, Alpha Law, LLC “took no depositions, tried no trials, and sued nobody” (p. 8). Instead, the Florida-based entity was a “marketing firm that funneled clients to real lawyers in a manner that was illegal in Florida and everywhere else except Washington, DC” (p. 8). The “DC loophole,” as Burch calls it, is actually a rule of professional conduct. Most jurisdictions follow ABA Model Rule 5.4, which prohibits individuals without law licenses from owning or investing in law firms. DC has an exception in its version of 5.4 exploited by Alpha Law. (Notably, Arizona completely eliminated its Rule 5.4 in 2021, with recent mixed reviews both documenting positive innovations in the delivery of legal services and harms to consumers. No other state has followed Arizona’s lead.)

I want to situate The Pain Brokers in the context of other market failures in the legal system. In my own book Law Democratized: A Blueprint for Solving the Justice Crisis, I argue that the American legal profession faces a profound access-to-justice crisis. Every year, millions of individuals confront serious legal problems—eviction, debt collection, family disputes, consumer fraud, medical issues, and more—without meaningful access to legal representation. Civil courts across the country routinely see litigants navigating complicated legal procedures on their own. Many never even recognize their problems as something that could be resolved through the legal system.

The void in legal help is not merely the product of information asymmetries and limited financial resources; it is also the result of institutional design. Burch’s book paints a dramatic portrait of what can rush in to fill this void and the picture is not pretty. Where Law Democratized diagnoses a civil justice system plagued by scarcity, The Pain Brokers shows how predators exploit that desperation.

The parallels to Law Democratized are instructive and troubling. My book documents how 87 percent of American households facing civil legal problems never even seek legal help, a statistic that reflects not indifference but a market that does not reach ordinary people (p. xii). The women Burch profiles did not suffer from a lack of legal contact. They were inundated with it. Call centers found them, lawyers signed them up via electronic sleight-of-hand, and surgeons cashed in before the legal machinery had even begun to grind. What Burch reveals is that when the formal legal services market fails ordinary people, an informal and predatory one may fill the gap.

As I learned more about the market for pain facilitated by the “LINO” Alpha Law, it caused me to rethink my own recommendations in Law Democratized for reform of Model Rule 5.4 to allow individuals without law licenses to participate in law firm ownership (p. 145-46). While I still favor reforms to expand who may be authorized to provide legal help and how they may do so, The Pain Brokers is a cautionary tale that must guide any such reform efforts.

Burch is particularly incisive on the structural features of multidistrict litigation, or MDL, that enable this predation. In MDL proceedings, thousands of individual cases are consolidated before a single federal judge (p. 1). A small group of insider plaintiffs’ attorneys—chosen through a “good-ol’-boy network,” as Burch describes it—controls the litigation, sets the settlement terms, and collects the fees (p. 4). Traditional legal markets tend to serve those with full information who can afford to pay; in The Pain Brokers, Burch shows how MDL structures similarly concentrate profit and information at the top of the plaintiffs’ bar, even in litigation nominally waged on behalf of the powerless.

For scholars of legal ethics, the market harms Burch describes raise questions that extend well beyond MDL litigation. The legal profession has long framed professional responsibility primarily in terms of rules governing individual lawyers and their duties to clients. Yet the pelvic mesh litigation marketplace illustrates how profoundly lawyers shape institutions as well as individual cases. Through litigation strategies, case aggregation, and relationships with intermediaries, lawyers helped construct the very systems through which legal claims are identified and resolved.

Lawyers sit at the center of this system. They are the actors who transform personal injury into legal claims, who aggregate those claims into large-scale litigation campaigns, and who ultimately negotiate the settlements that distribute billions of dollars in compensation. Yet Burch’s account reveals how modern mass-tort practice resembles a supply chain. Potential plaintiffs may be identified through digital advertising, routed through lead-generation companies, and matched with law firms assembling vast portfolios of cases for multidistrict litigation. In such a system, the lawyer-client relationship—long understood as the ethical core of legal practice—can become attenuated as claims move through layers of intermediaries before reaching the courtroom. The “inventory” of clients may never meet their lawyer at all. Seen from that perspective, Burch’s narrative is not simply a study of mass-tort practice. It is an invitation to reconsider how professional responsibility should be understood in an era when legal markets operate on a national and increasingly digital scale.

The Pain Brokers is a rigorous indictment of a legal system that allowed financial incentives to crowd out human dignity. At times the book’s narrative momentum runs ahead of its policy analysis. Burch is a formidable legal scholar but the book’s general-audience framing keeps structural reform largely in the background or relegated to footnotes (for example p. 290). Readers learn in vivid detail what went wrong; the “Band-Aids” chapter (pp. 243-248) gestures toward solutions, but Burch leaves her audience desperate for justice. I hope The Pain Brokers inspires more to read about her scholarly proposals for reform. And I’d love to read the sequel.

There is not a significant Twenty-Sixth Amendment Supreme Court case. But I started reading the leading circuit cases and came away unimpressed.

Here’s an example. During the pandemic, some states enacted laws that gave older people special privileges with respect to mail-in voting. These laws were upheld against 26th Amendment challenges. One argument those courts made was that in 1971 (when the 26th was ratified) the “right to vote” was generally understood to mean in-person voting. Accordingly, mail-in voting rules do not implicate the “right to vote.”

But this cannot be right. If there were special mail-in rules for whites or women, those would not be upheld under the 15th or 19th Amendments even though voting in those eras was also primarily in-person.

Another argument in the recent cases was that giving some people a special privilege or waiver does not “abridge” the rights of others. Again, I don’t think that logic would work under the other suffrage amendments.

Now it could be that the pandemic was a public health emergency that justified a temporary exception to the 26th Amendment. So the holdings of the recent cases may be correct. But that would mean that the exception cannot continue.

The upshot is that there is ample room for a Twenty-Sixth Amendment originalist article that will give that text its due. Maybe I’ll turn to that after I get the current article done and try it out for Originalism-Works-In-Progress in San Diego.

There have been several interesting conversations about legal scholarship in the past couple of days. They started on blogs, but I understand they have also generated 280 characters at a time of what, given that format, must surely be rich, thoughtful discussion elsewhere. Taken together, they raise some interesting questions. Although most of the posts are about scholarship in general, some of them focus on scholarship and AI, and AI arguably figures as a complicating factor in all of them. I hope to get around to all of them, but rather than try to do it all in one gulp, let me start with just one of those posts.

It comes from Larry Solum, whose post Wednesday at the Legal Theory Blog castigated social-media commentary on recent birthright citizenship scholarship for exhibiting “a very uncharitable attitude towards scholarship with which the poster disagree[s].” He continued:

My view of the role of Legal Theory Blog is premised on the idea that scholarship ought to be viewed as a search for truth and that scholarly debate should be civil and charitable. Attempts to shame or silence scholarship are always problematic and rarely justified. Statements to the effect that the author of a piece is insincere without any evidence should be condemned and have no place in responsible scholarship. What should matter is what Jürgen  Habermas called “the unforced force of the better argument.”

I mostly want to focus on sincerity here, but let me say first that I’m not sure why attempts to “shame” scholarship are “always problematic and rarely justified.” Maybe Larry means that the attempts are problematic because they’re rarely justified. Scholars often overestimate the strength of their criticisms and/or the weakness of their adversaries’ views, and the error rate makes shaming problematic as a practice. I sympathize. But surely there is plenty of bad scholarship in any academic field–bad in intent, bad in design, bad in execution. The direct and indirect harms of bad scholarship are numerous. It enables error to burrow in; it muddies the waters and raises search costs; cumulatively, it devalues good and bad scholarship alike. Not least, because those who do bad scholarship “well” can end up in influential positions, it entrenches and encourages the same bad moves, especially but not exclusively by junior scholars. I would have thought, therefore, that shaming bad scholarship is often problematic but frequently justified. To take one of many possible examples, American law reviews cite plenty of work taken from other fields. Yet neither American journals nor American law professors universally run citations through Retraction Watch. I would think shaming is in order, both because this failure is literally shameful and because the shame might lend support to better individual and collective practices.

I sympathize, too, with Larry’s assertion that calling an author insincere “without any evidence” is wrong and irresponsible. Or at least I mostly sympathize with it. The problem with such accusations isn’t that they’re always wrong, and I don’t read Larry to suggest otherwise. It’s that they are thrown around too casually, given our lack of access to others’ minds.

Accusations of insincerity often rely on the fallacious proposition that one can arrive at a reliable conclusion about someone else’s motives by reasoning logically from a small number of facts and (contestable) premises–e.g., “It’s so sloppily done, or the author is so new to the discussion, that it must be insincere, conspiratorial, etc.” That sort of argument can be described as relying on “evidence.” But it’s weak evidence, and most of the real work in such an accusation is done by the questionable inferences, not the actual evidence itself. Confident accusations of insincerity often ignore mixed motives, and they ignore the reality that people are often imperfectly aware of their own motives. In practice, accusers are often cynical about the motives of their adversaries, but credulous or silent about their own motives or those of writers with whom they agree. This does not make the accuser’s charge of insincerity wrong, but it may affect the accuracy of the general picture of the debate and its participants.

One defense of accusations of insincerity is that they provide an important part of the context for understanding a debate–about scholarship, about politics, or what have you. On this view, if a prim insistence on “civility” demands the exclusion of such charges, then it is effectively legitimating and benefiting bad-faith actors and distorting reality. Against this, and even if one ignores the value of civility as such, is the possibility that the number of errors, faulty reasoning, and corrosive habits that one avoids by barring weakly evidenced charges of insincerity outweighs the epistemic value of permitting those accusations. Some bad actors will get away with their insincerity. But the gains outweigh the costs.

That’s the position I ultimately take and one that I try, with epic levels of imperfection, to apply. Nevertheless, after reading Larry’s post, I find myself perversely doubting this position. Larry confines himself to criticizing charges of insincerity made “without any evidence,” while leaving well-founded accusations of insincerity on the table. My sense is that most people, wherever they come out on the norm that should apply to speculative accusations of insincerity, would agree that criticizing insincere legal scholarship when one has strong evidence for that criticism is at least fine and perhaps obligatory. But despite my own general view, I have to wonder: Why should we care about insincerity at all? A charge of insincerity clearly carries weight in the world. If it didn’t, we wouldn’t bother to make it–or to insist that one not make it without strong evidence. But why should it matter?

Following Habermas, Larry argues, against allowing casual charges of insincerity, that all that matters is “the unforced force of the better argument.” If that’s so, why exactly should we care if an argument is made insincerely, even when there is strong evidence of this? Whether an argument is insincere is wholly distinct from the question whether it has been made shoddily, badly, illogically, without convincing evidence, and so on. Full many an honest and sincere actor has written scholarship that fails all those tests. And surely some number of rotten, corrupt, self-serving, office- or profit-seeking, cause- or ideology-driven, mercenary, and otherwise shitty individuals have written excellent articles for bad motives and without an ounce of sincerity–for fun, or politics, or profit, or tenure (which is the same thing). Whatever the writer’s motives or true beliefs, such an article has the unforced force of the better argument. The argument is not better or worse because its author happens to believe it.

The mercenary, dishonest, insincere writer of a good argument may have written herself one step close to damnation, and the pure-hearted writer of a flawed argument may have written herself one step closer to heaven. Given those high stakes, our concern for the souls of others, and the fact that scholarship and writing are–like everything else–a moral enterprise, we should take that seriously, and maybe we should say so more often. But if our ultimate lodestar is the unforced force of the better argument, shouldn’t we assent to the persuasive argument of the damned writer and reject the flawed argument of the saved writer, and read both arguments as if the truth and persuasion of the work are all that counts and authorial sincerity is irrelevant? If a persuasive article is prefaced with a frank statement from the author that she has written the article because its argument will undermine the government’s position in the birthright citizenship case, or because it will be good for her career, or out of simple perversity, and that nothing that follows should be understood to state her own view, why should that matter if our considered conclusion is that she has given the better argument?

I appreciate that by focusing on the one phrase quoted by Larry, I’m ignoring a lot of relevant background context from Habermas–including, to quote Michael Froomkin, a “good faith commitment to honest [and “nonstrategic[ ]”] debate.” Perhaps those missing ingredients, which I am too ignorant to do justice to here, supply the answer to my question. If they do, I would have thought that we should be more willing to police the requirements of honesty and good faith, and thus less inclined to follow Larry’s restrictive rule concerning accusations of insincerity. Maybe the sheer quantity of American legal scholarship that openly or covertly fails the test of engaging in non-strategic debate makes the whole realm so non-ideal that we should treat American legal scholarship as a plague zone, a failed experiment in honest deliberation and debate. Maybe we would then see an individual’s adoption of a strong assumption against insincerity partly as an effort to model ideal deliberation, regardless of what others are actually doing, and partly as a dogged or desperate attempt to preserve one’s own soul in a sinful world. I find those possibilities interesting and admirable. But in either case, the approach would have little or nothing to do with the actual state of affairs.

The possibility and reality of AI-generated legal scholarship, it seems to me, heightens the question. Roughly put, I understand the position of advocates in this area to be that if the use of AI, in part or even in whole, to create scholarly work results in more and better scholarship, then the search for truth has been advanced and we should treat this as a positive good. To the extent that this is right, and that the AI engine itself has no motives to be sincere or insincere about, why should we care whether the originating “author” is sincere or not? Imagine that the human originator writes, in the (machine-generated) preface to an otherwise convincing article, that he asked the AI engine to find a missing argument in some existing body of literature, choose the side of that argument that is most likely to appeal to the largest number of likely readers (with a weighted emphasis on appealing to lateral hiring committees), and write the best possible version of that argument, which follows. Does the truth of that argument suffer from the multiple layers of lack of genuine feeling or belief that went into producing it? If that human generates one of these every week, sending them into the world out of what he happily admits are purely mercenary motives and with a general indifference to the positions taken, does his sincerity or insincerity matter at all?

I would like to think it does. But I’m not sure I can justify that belief. I might reject the whole enterprise on other grounds, even if it results in more and better scholarship produced more rapidly. There are good reasons to avoid lightly accusing others of insincerity, even if we are certain that some number of academic authors are in fact insincere. But the overarching question whether we should care about scholarly insincerity at all seems like a tougher question to me, and one that will increasingly have little to do with the actual quality of the scholarly work.

The most important innovation Birch Bayh introduced to the Article V process was the solicitation of state input on the drafting of amendments. Let me give you an example.

During the Twenty-Fifth Amendment discussions, a basic divide was between people who wanted the amendment to spell out the details of determining the inability of the President versus those who just wanted to empower Congress to do that later.

Senator Bayh (who preferred the detailed proposal) decided to survey state legislators on this point. A letter was sent to those leaders across the country which said, in part: “As an ex-state legislator from Indiana, it is my feeling that my State would prefer to know the exact procedure contemplated rather than giving to the Congress a ‘blank check.’ This was, of course, not a neutral survey. But Bayh then used the survey data to persuade Congress.

There are other examples. When state legislators raised questions about the 25th amendment during the ratification process, Senator Bayh and his staff gave them interpretive guidance. (This was also true for the proposed ERA.) And following the Court’s decision in Oregon v. Mitchell, Bayh surveyed state leaders (including State Secretaries of State) to jump start the process for proposing the 26th Amendment. (I’ve found one such response from Jerry Brown, then the young Secretary of State of California).

I think this sort of collaboration is a model for future Article V amendments.