This Day in Legal History: Felix Frankfurter Dies
On this day in legal history, February 22, 1965, the legal community and the United States at large lost one of its most influential and intellectually formidable figures, Supreme Court Justice Felix Frankfurter, who passed away in Washington, DC. Born in Vienna, Austria, in 1882, Frankfurter emigrated to the U.S. with his family, rising from humble beginnings to become a professor at Harvard Law School, and eventually, in 1939, a Supreme Court Justice nominated by President Franklin D. Roosevelt. His tenure on the court was marked by a strong adherence to judicial restraint, a philosophy advocating for the courts to avoid deciding more than what was necessary for the resolution of a case.
Frankfurter's notable achievements include his influential opinions on civil rights and liberties, his pivotal role in the development of the doctrine of incorporation, which applied the Bill of Rights to the states, and his mentorship of several future legal scholars and justices. His majority opinions and concurring opinions are studied for their meticulous craftsmanship and deep respect for the Constitution's framers. However, his career was not without controversy; Frankfurter was often criticized for his perceived conservatism and reluctance to join the more liberal bloc of the court in expanding civil rights.
His advocacy for judicial restraint and his approach to the Constitution often put him at odds with colleagues who were more willing to interpret the Constitution as a living document. Despite these controversies, Frankfurter's impact on American law and constitutional interpretation remains indelible, making him a central figure in the history of the Supreme Court. His legacy is one of intellectual rigor, profound respect for the law, and a deep-seated belief in the power of judicial restraint to protect the democratic process.
On February 21, a federal judge in San Diego issued a ruling that temporarily prevents California's attorney general from enforcing a new law targeting the firearms industry. This law, signed by Governor Gavin Newsom in 2022, allows for legal action against manufacturers and sellers of "abnormally dangerous" guns. The judge's decision, responding to a lawsuit by the National Shooting Sports Foundation (NSSF), suggests that the law likely violates the Constitution's dormant Commerce Clause by affecting interstate commerce. Specifically, the law could impose liability on out-of-state gun manufacturers for crimes committed in California with their legally manufactured weapons. This preliminary injunction halts the state's ability to sue the firearms industry under this law while the lawsuit progresses. The ruling does not address Second Amendment concerns but focuses on the law's potential to interfere with interstate commerce. Governor Newsom's administration is reportedly consulting on next steps, emphasizing that the ruling still allows for the pursuit of "bad actors" in the gun industry for harms caused by their products. This case highlights the ongoing legal and constitutional debates surrounding gun control and state versus federal powers in the United States.
By way of very brief background, and hopefully only as a refresher if you are one of our lawyer listeners, the Dormant Commerce Clause refers to a legal doctrine derived from the Commerce Clause in the U.S. Constitution, which grants Congress the power to regulate interstate commerce. The "dormant" aspect of this doctrine implies that, in the absence of federal regulations, states cannot enact legislation that discriminates against or unduly burdens interstate commerce. Essentially, it serves as a prohibition against state protectionism, ensuring that the flow of interstate trade remains free from unnecessary restrictions imposed by individual states. This principle aims to maintain a national economic union, preventing states from enacting laws that favor in-state businesses over out-of-state competitors, thereby preserving a unified, competitive market across state lines.
Judge blocks California from suing makers of 'abnormally dangerous' guns | Reuters
Corporate legal departments are currently exploring the potential of generative artificial intelligence (AI), with a focus on its application in the legal industry, under the guidance of a new initiative called The Sense Collective. This initiative, spearheaded by Factor, aims to convene in-house lawyers from major corporations such as Adobe, Ford, Intel, and Microsoft to deliberate on the optimal use of AI tools in legal practices. Despite the enthusiasm surrounding generative AI for tasks like drafting documents, legal research, and e-discovery, many legal departments remain in the experimental phase, carefully assessing the technology's implications and applications.
Ed Sohn of Factor highlights the ongoing exploration into accessing generative AI, whether through market-available tech products or direct chat interfaces like Microsoft Copilot or OpenAI's ChatGPT Enterprise. Mike Haven from Intel noted that while his legal department has utilized AI for various tasks, generative AI represents a newer frontier, prompting a cautious and deliberate approach to its deployment.
The Sense Collective, beyond serving as a forum for discussion, is intent on identifying solutions that deliver substantial value to their organizations. This includes examining the effective use of tools such as Copilot and addressing broader questions regarding AI's impact on legal department investments, business counseling, and ethical considerations.
An interesting aspect of the collective's work will be the development of generative AI prototypes tailored for legal use cases. Additionally, the group is keen on monitoring advancements in retrieval-augmented generation (RAG) technology, which promises to enhance AI tool accuracy by leveraging an organization's institutional knowledge. Membership in The Sense Collective is limited and requires a financial commitment, with outputs from the group's discussions reserved exclusively for its members.
Top In-House Counsel Band Together to Experiment with Gen AI
US Justice Dept names first AI officer as new technology challenges law enforcement | Reuters
In anticipation of New York's pilot for mobile driver's licenses, lawmaker Michaelle Solages is spearheading legislation to establish model privacy standards amidst the national trend towards digital identification. This initiative seeks to address the security and transparency concerns that have arisen with the digitalization of IDs. Solages' proposed legislation emphasizes voluntary adoption of digital IDs, mandates state management of the wallet application, and sets strict controls on data handling and usage, including a prohibition on selling data to third parties and requiring law enforcement to obtain a warrant for data access.
The bill aims to create a framework that accommodates various uses of digital IDs, ensuring privacy, security, and cost-effectiveness. This approach contrasts with the New York DMV's current direction, which involved a $1.7 million contract with IDEMIA for a digital identity platform without extensive public discussion on privacy safeguards. Critics like Ross Schulman from the Electronic Frontier Foundation and Zachary Martin from Venable have underscored the importance of public debate and comprehensive stakeholder engagement in shaping digital ID policies.
Privacy advocates are particularly concerned about third-party partnerships and the potential for increased surveillance through digital IDs, advocating for technical protections like encryption and granular data control. Amidst these concerns, the New York DMV is still finalizing the mobile ID pilot, with no set timeline for its rollout. Solages remains optimistic about collaborating with the DMV and external groups to ensure the digital licensing initiative prioritizes the security and privacy of New Yorkers, highlighting the legislative effort to safeguard privacy alongside technological advancements.
Mobile Driver’s Licenses Face Privacy Scrutiny Ahead of NY Pilot
Legal News for Thurs 2/22 - CA Gun Law Blocked, Corporate Legal Explores AI, and NY Mobile Driver's License Hits Privacy Snag