Minimum Competence - Daily Legal News Podcast
Minimum Competence
Legal News for Mon 4/8 - AI Task Force of NY Bar, Court Takes Stand on 'Judge Shopping' and Judge Pauline Newman Continues to Fight

Legal News for Mon 4/8 - AI Task Force of NY Bar, Court Takes Stand on 'Judge Shopping' and Judge Pauline Newman Continues to Fight

We cover NY Bar's AI task force on attorney risks, a court's stand on 'judge shopping', and Judge Newman's legal battle.
A robot lawyer in court, pencil sketch

This Day in Legal History: Seventeenth Amendment Ratified 

On April 8, 1913, a significant transformation in American democracy was cemented with the ratification of the Seventeenth Amendment to the U.S. Constitution, fundamentally altering the process for selecting U.S. Senators. Prior to this amendment, senators were chosen by state legislatures, a practice established by the original Constitution that aimed to ensure states' power within the federal system. However, this method was increasingly seen as flawed, particularly due to issues like corruption and deadlock within state legislatures, which often led to Senate seats remaining vacant for extended periods.

The push for reform gained momentum in the late 19th and early 20th centuries, as Progressive Era advocates argued for more direct democratic control over government. The Seventeenth Amendment represented a pivotal victory for these reformers, as it mandated the direct election of senators by the voting public of each state. This change was intended to make the Senate more responsive to the electorate's will, reduce corruption, and enhance the democratic principles upon which the nation was founded.

The amendment's journey to ratification was a testament to the growing demand for political reform. After being passed by Congress in 1912, it was swiftly ratified by the necessary three-fourths of the states, reflecting widespread public support for greater democratic involvement in federal government. This process also showcased the amendment mechanism outlined in the Constitution as a powerful tool for evolving the nation's governance structures in response to calls for change.

The ratification of the Seventeenth Amendment marked a fundamental shift in the balance of power between state legislatures and the general electorate. By empowering citizens with the ability to directly elect their senators, it significantly expanded American democratic practices. This change not only reshaped the Senate but also had lasting implications for American politics, ensuring that senators would be more directly accountable to the people they represent.

Today, the Seventeenth Amendment stands as a critical milestone in the ongoing development of American democracy, embodying the Progressive Era's ideals of increasing public participation and reducing undue influence in the legislative process. Its anniversary serves as a reminder of the enduring importance of democratic reform and the impact of constitutional amendments in shaping the trajectory of the United States.

The New York State Bar Association's AI task force recently emphasized the privacy and confidentiality risks attorneys face when using artificial intelligence, urging them to be cautious with client data to prevent breaches. Approved guidelines advise lawyers on AI usage and advocate for educational efforts and comprehensive legislation to address regulatory gaps. While AI offers significant benefits like reducing errors and enhancing efficiency, it also poses privacy and cybersecurity threats. The task force highlighted the potential for AI to improve access to justice but warned against exacerbating the burden on the already overwhelmed court system through its increased use.

Confidentiality issues are particularly concerning when information shared with AI, like chatbots, is used for AI training, suggesting that lawyers obtain client consent and ensure data protection. Attorneys are advised against relying solely on AI-generated content without verifying its accuracy and completeness. The report recommends using closed AI systems to mitigate privacy concerns and emphasizes the necessity for attorneys to understand the technology they use or seek assistance to fulfill their duty of competence.

The task force pointed out that laws and regulations lag behind AI advancements, with unresolved questions about liability and intellectual property disputes involving AI training data. It calls for education on AI's legal applications and legislative attention to AI-related risks not covered by current laws. The report cautions against viewing AI as a panacea for access to justice issues, highlighting the risk of creating a two-tiered legal system where only the well-resourced benefit, potentially leaving underserved communities at a disadvantage.

NY Bar Warns Attorneys of Privacy Risks Posed by AI Tools

A federal appeals court recently addressed a contentious issue of "judge shopping" by ruling against the transfer of a lawsuit challenging a Consumer Financial Protection Bureau (CFPB) rule on credit card late fees from Texas to Washington, D.C. This lawsuit, initiated by business and banking groups in Fort Worth, Texas, aimed to contest the CFPB's regulation that sought to cap "excessive" late fees, which the agency believes cost consumers approximately $12 billion annually. 

The CFPB's rule limits charges for late payments to $8 for credit card issuers with over 1 million open accounts, a significant decrease from the previously allowable charges of up to $30 or $41 for subsequent late payments. The New Orleans-based 5th U.S. Circuit of Appeals, on a 2-1 vote, sided with the plaintiffs, emphasizing the broader debate over the practice of selecting courts for their sympathetic judges. The dissenting opinion raised concerns about the impact of the ruling on district court discretion and the management of forum shopping. The case's transfer, prompted by a newly announced policy to curb "judge shopping," was nullified, underscoring the ongoing challenges in addressing this legal strategy.

US court rejects transfer of credit card fees rule case amid focus on 'judge shopping' | Reuters

Federal Circuit Judge Pauline Newman is making a determined effort to keep her lawsuit active, which contests her suspension from hearing cases under the Judicial Conduct and Disability Act. At 97 years old, Newman, the oldest active federal judge in the U.S. and the longest-serving member of the court that specializes in patent appeals, argues that the Act's provisions are unconstitutionally vague and improperly allowed her peers to suspend her without legitimate grounds. Her suspension came after she declined to undergo medical testing amid an investigation into her capability to serve, instigated by her colleagues at the US Court of Appeals for the Federal Circuit.

In her recent legal filings, Newman challenges not only her suspension but also the broader legal framework that enabled it, specifically criticizing the statute's provision for demanding medical records or psychiatric exams without adequate legal justification. She contends that the process used against her amounts to an unconstitutional delegation of Congress's sole authority to remove her from office and criticizes the vague criteria used to define a disqualifying mental disability.

The legal battle has seen parts of Newman's lawsuit dismissed by Judge Christopher R. Cooper, though claims challenging the constitutionality of certain aspects of the Act remain under consideration. In response to a motion to dismiss these remaining claims, Newman and her legal team, represented by the New Civil Liberties Alliance, argue that the Act's vague definitions and lack of provisions for judicial review of decisions, including those authorizing access to private medical information, undermine its constitutionality.

Newman's case, positioned against Chief Judge Kimberly A. Moore and other members of the Judicial Council, emphasizes a significant legal debate over the standards and procedures for evaluating the fitness of federal judges and the balance of power between judicial and legislative authorities.

Newman Urges Judge Not to Dismiss Lawsuit Challenging Suspension

Minimum Competence - Daily Legal News Podcast
Minimum Competence
The idea is that this podcast can accompany you on your commute home and will render you minimally competent on the major legal news stories of the day. The transcript is available in the form of a newsletter at