A historic concurrence was recently handed down in the Eleventh Circuit, by Judge Kevin Newsom. We predict that it will go down in history as the first significant use of AI in judicial decision-making, even if almost all of it occurs in dictum. Especially if you’re skeptical, please read on.
Judge Newsom broke with “normal” judicial style to discuss the relative merits of using chatbots (ChatGPT, Bard, and other “large language models”) as a tool in statutory construction. The question was whether installing an in-ground trampoline in a yard amounted to “landscaping.” The chatbots performed admirably—to a stunning degree—in laying out the criteria for what constitutes “landscaping.”
Mind you, the downsides of chatbots are well known. We’ve written, for example, about their tendency to “hallucinate.” See Garner, “Chatting About ChatGPT,” National Review, 16 Mar. 2023; Garner, “Will ‘Chatbot Lawyer’ Make It into Black’s Law Dictionary?” ABA Journal, 1 June 2023. If they’re to be used, they must be used cautiously.
Newsom’s concurrence is essentially a meditation on the potential utility of chatbots in legal interpretation. Because chatbots aggregate massive amounts of data representing the full gamut of written expression, their “understanding” of ordinary meaning can be astonishingly detailed and accurate. Chatbots may well make a better “person on the street” than any one person could. That’s the kernel of Newsom’s concurrence.
We recommend his opinion as a piece of refreshingly unconventional legal writing. You’ll find it nuanced and informative. See Snell v. United Specialty Ins. Co., 102 F.4th 1208 (11th Cir. 2024). Newsom acknowledges that it’s “a little unusual” to “pull back the curtain on the process by which [he] thought through one of the issues.” Id. at 1221.
One aspect of Newsom’s style is the relaxed tone. It’s not just a matter of contractions; it’s the word choice and the frequent resort to idioms. He uses informal language that won’t please everyone. For example:
- A procedural disposition is a judicial “off-ramp.” (P. 1222.)
- Nothing in the two photos shown was “particularly ‘landscaping’-y.” (P. 1224.)
- “I definitely didn’t want to fall into the trap of embracing ChatGPT’s definition just because it aligned with my priors. (Bad.)” (P. 1225.)
- “[S]cads of people . . . use the internet.” (P. 1227.)
- “If I’m not all wet, [it might be] at least worth considering whether LLMs have a role to play in the interpretation of legal instruments.” (P. 1232.)
You might say that the opinion is a masterclass in exploring a complex, specialist concept in an approachable way that most high-school students could follow. In that way, it’s quite admirable.
Regardless of your views about informality in legal writing, you can’t help learning from what he says. Meanwhile, if you have strong views, let us know what you think about the opinion. Send us a message at info@lawprose.org.