At Least The Robots In The Coming War Against Humans Will Understand War Crimes

0:11Hello, welcome to another edition of Thank You Like a Lawyer. I'm Joe Patrice from Above the Law. I'm joined by a couple of the other above the law editors. I've got Catherine of Bino and Chris Williams both here. Hey. What's up? And we are here to talk about the big stories from the week that was in legal. We will first, of course, begin with a little bit of small talk. Small talk. Yeah. How's everybody doing? Good. I feel pretty jolly in the spirit, et cetera, et cetera. Went to my cousin's works Christmas party, and they had both Santa Claus and the Grinch. The Grinch, he's a firefighter. And so the Grinch came down the pole in the firehouse, stole Santa's presence.

0:58The kids chased the Grinch around. Eventually he apologized and was allowed to celebrate with us. It was really cute and adorable, but it made me feel so excited. The Grinch is my daughter's actual, I think, literal favorite being right now. She's a little finicky. We used to be Daisy Duck before that. I think it was Moana. Listen, we're working through them. But right now it's the Grinch. And her sheer excitement to see the Grinch was actually super adorable. Although she squeezed my hand so tight because she was so excited and maybe a little bit scared. I couldn't really tell that she actually had a little bit of an injury from her squeezing me so tight when she first saw the Grinch.

1:37It was really adorable. That's cute. Speaking of holidays, happy Hanukkah to folks listening and celebrate. this is a good weekend i finished two shows at least the animated portions there's one show is called smiling friends and it is ridiculous like it is it is nonsense um i highly recommend it um to people that need to do better things with their lives and uh the second one i finished is called a record of ragnarok which is like a mashup of all these different gods from different religions uh who are fighting to determine if humans will get to continue living or not and it's really cool it's really cool no uh well we don't know yet we don't know yet but yeah it was it was a nice uh it was a nice stay inside um weekend it was going to be that anyway but the snow helped me uh you know justify the not leaving the house at all that's fair yeah you know it's it's interesting you say uh the smiling friends i just totally randomly last night i went down a rabbit hole of revisiting the frighteningly long history of Aqua Teen Hunger Force, which I hadn't quite.

2:45Are those things related? Well, I mean, they were both on Adult Swim. They're Adult Swim things. Yeah, I didn't, I was unfamiliar. I mean, I am familiar with Aqua Teen Hunger Force because, you know, that was a moment in time. But you went on a rabbit hole? Well, yeah, just I hadn't really been clocking that it's been 25 years since. Stop it. since Aqua Teen Hunger Force premiered. I refuse to believe that. That is false news. Next. Yeah, no. So I was just kind of revisiting. The Vice City diet plan episode where the dude was just eating tapeworms takes up a larger amount of real estate in my mind than I'd like to admit.

3:22My favorite line, I think, that I still use to this day from Aqua Teen Hunger Force is I put two and two together and I figure you're pissing me off. Yeah, yeah. You've got a lot of Carl in you. we're both Giants fans there you go you don't actually that is really good lawyer math by the way what it inspired it was I was thinking of the do you remember the cybernetic ghost of Christmas past from the future it was that no it was like a robot ghost thing that like bugged it showed up and bugged the the gang but it was just over the top and completely ridiculous i thought of it because of it was inspired by the whole rabbit hole was because of a christmas thing and i thought about ghosts of christmas past there's like wasn't there like what was the thing on aqua teen hunk force and then that took me down the whole rabbit hole of youtube videos and everything to remember some of the that's fine yeah so times well let's move on from that and begin some of our actual conversation uh what do we want to start with i guess we should probably start with uh an artificial intelligence story i mean you are leading the show you did so good in small talk i think you've earned to talk about ai i'm proud of you has upgraded to main talk yeah our well in this instance it is a ai story that It was the most read story of the week for us at Above the Law, which is that last week the Defense Department, which calls itself the War Department, though, that is not actually a name change that they're allowed to do without congressional action.

5:09I mean, they're doing a lot of things without congressional action. Well, that actually comes up here. Wait, is it dead naming if you still refer to them as the Department of Defense? Well, that is very much a joke that people are making online. Like, oh, now you understand that you want to be called by – Now you know chosen names. Now you've decided. But the – yeah, no. So the Defense Department unveiled its new AI tool for members of the military. It allows them to have kind of an instance of mostly – it seems like it's mostly Google Gemini driven, although it seems like there might be some secret sauce involved.

5:47But anyway, it's a military-grade AI tool that exists just for them, cordoned off, involves the privacy and security aspects that they need. So this gets unveiled. The Pentagon is very excited about it. Pete Hegseth is very excited about the power that this new AI tool can bring. And then by my count, within, I don't know, like five or six hours of it going live, someone apparently with the Air Force, we're guessing just because they posted it on Reddit's R Air Force, posted a screenshot of asking the thing some questions. in particular questions about hypothetically if I were given an order to circle back and double tap a boat that had been blown up in the Caribbean that'd be kind of a war crime or something as it turns out the AI is very good at pointing out the yes the yes that would be So, yeah, so they now have an AI that performs better than the senior human commanders involved.

7:01I mean, I don't like to give you tons of compliments, Joe, but two of my favorite jokes. Okay. Two of my favorite lines of this article I think should go really down in on some list of yours. But G.I. Gemini. Yeah. That was a pretty good one. and chat j-a-g j-a-g yeah jag uh yeah no well you joe probably will end up on a list from writing this article there's no question um it's fair yeah my he's got bumped up on a list yeah yeah my thoughts are i wonder how many weeks away we are from mecca trump you know like with the like with the mecca hitler sort of thing yeah with the ai because um my my given hexethic responses i'm I'm surprised we didn't get immediate, oh, we're going to work out the woke kinks from the AI program.

7:55Well, I think that's a great transition because I think that while they haven't said that out loud, and hopefully, theoretically, well, I guess I was going to say they wouldn't say that out loud because professionally they would want to keep that inside. But then I remember the White House that we're talking about. I think at some point he did. I think he was like – there was some clip where Hexeth was like, we're going to move towards common sense, goals of engagement, maximum lethality. And it did so in a way where people were like, wait, this doesn't sound like it's in line with – Sure, sure, sure.

8:30I think we have already crossed the Rubicon in that regard. Yeah, I was talking about responding to this instance. But yes, no, that makes sense. The segue I was going to get into is the attempt to put one's thumb on the scale of these language models, which has been very interesting and remains one of the more serious questions about this technology, right? It is folly to think of it as a magic thinking device that is fully conscious or anything like that. Like both weirdly its biggest cheerleaders and its biggest detractors seem to. That said, it has exhibited that it is very difficult to put your thumb on the scale of these.

9:12And you kind of raised the Mecha Hitler issue. We've had Elon attempt to make Grok do things that make him happier. and it tends to fall back on him. Grok tends to not respond to these efforts or to overcome them fairly quickly. This is relevant to the AI conversation as a whole because when you're trying, like in legal, you aren't trying to change the way it necessarily acts, but you are putting yourself in a position where you want to put your finger on the scale to have it not hallucinate stuff, to have it not invade confidential information and send it out. And even though these are still programs and still can be controlled, it is worth understanding that there's just the nature of how large the language model gets and the nature of its kind of stochastically guessing what the next word is.

10:12It makes it hard for you to build the correct guardrails because as it gets larger and larger, it has more access to information that it can, that it will, in its attempt to be more efficient, get around those guardrails. That is the, that is a concern. My thing, I don't see how this wouldn't happen. It was, I just imagined some war game scenario, but instead of the, like the computer making rational, assured mutual destruction calculations, there's just some like hardwired jingoism, America first axiomatic reasoning to where it's just like, oh, we'll always win nuclear wars because we're America.

10:46and it just leads to people making bad decisions militarily. I mean, the only correct strategy is not to play. Is anybody old enough? Oh, anybody? Is Catherine laughed, but I don't push her again. I started the War Games reference. Okay, okay. It's literally the thing I said, Joe. Well, no, that's what I, no, I mean, but you were taught, yes, but War Games are a real thing that, like, exists generally. So I didn't know if you were referencing the movie about War Games or War Games as a concept. No, the War Games supercomputer movie with the supercomputer. So you're the one who's old enough to get it.

11:20Yeah, yeah, yeah. Okay. Yes, yes, yes. So you are very much old enough to get the reference. Good. Okay. Which I know from Patrice O 'Neill's stand-up, not because of the movie proper. I did go back and then watch the movie, but shout out to Patrice O 'Neill. Fair, fair. Well, so while we're on this subject, I guess to have a mini story within the same story, since we're talking about AI, and I don't get these opportunities often. We also last week had the administration issue its executive order banning states from passing their own AI regulations, which is not how the law works. The constitution is pretty clear, actually.

11:57Yeah, you cannot just – well, first of all, the executive order function cannot be used to legislate. And then on top of that, you can't then use the hypothetical legislation that you just wrote about to trigger the supremacy clause to prevent – to preempt state laws. So it is a document entirely without any legal function, any serious legal function. But it was interesting to the extent that there is afoot an effort to kill any and all attempts at regulating AI, which is problematic. and it is one of the points that the administration really aimed at in this executive order is that they want to take some action to prevent the AI from issuing false results, which one, it does not need any of your help to issue false results.

12:52It's willing to do that on its own. But the argument of the administration is that any effort to put guardrails on AI to prevent it from exhibiting baked-in, garbage-in, garbage-out bias and to put out discriminatory outcomes, that that is not true, in air quotes, not true answers because there's been action taken to stop it, which, of course, is not true. The falseness was what was already baked in, and the guardrails are there to correct it. But the administration is taking the stance that if implicit bias is shown, that is what truth is. Yeah, I mean, I think it's I think you're right about sort of the constitutional and legal impact of the executive order.

13:42But as a thought experiment, I think it is kind of interesting because obviously I think that it was written as it applies to consumer facing AI. But, you know, you write a lot about AI that it's for a specific industry and a lot of thought and money is put into constructing the exact sort of guardrails that is very inarticulately kind of talked about in the executive order. Sure. Now, obviously, those are more to meet the market as opposed to a state regulation. But it is true that, you know, in the criminal context that we have a lot of these sorts of state regulations are aimed at applications such as facial recognition, where we have seen the AI act upon bias that's programmed into it.

14:30And it's also true, and this gets to the whole difficult question of how you regulate AI long term and who's to blame for it. Is the underlying language model to blame for an act like this, an act of discrimination? Or is it whoever pumped training data into that LLM that then went out and acted? because if you can take a perfectly good language bottle and shove a bunch of garbage in it, and it's going to give you garbage answers because it's attempting to match the two together. Who's liable in these situations and how do you effectively regulate that market? Now, we've talked a little, I think we've even mentioned on the show, I know we've mentioned in articles that we think there's some pretty cool ideas going on with insurance proposals to kind of make that an insurance-based market.

15:24But yeah, it's interesting. How do you do that? Because it's not OpenAI's fault if you've pumped the model full of a bunch of garbage. Oh, yeah. So this is an aside, but I think it'll still be worth talking about. I think it's going to blow up at some point. To this point about liability, it looks like, what is it, Section 230 is about to blow up? Or isn't it talking about not being a thing anymore? and the for the people who aren't aware like the the reason we have the internet is because the websites aren't always necessarily responsible for the things people post to them so just because like say facebook a person post makes a post that has like say terroristic intent or have you facebook isn't necessarily on the hook because it was out there and they may have uh you know even shared it to some degree but getting rid of section 230 would uh put uh make the make the guardrails for holding websites accountable for the things that people post much weaker.

16:24I mean, non-existent. Yeah, no. And they would. Yeah, it would it would definitely end social media. It would have a deleterious effect on the Internet as a whole, but it would definitely end social media. Now, I will say we've we've been there's been an effort to kill Section 234 at least a decade at this point. Like we we worried about it at here at Above the Law years ago. It was part of why we stopped hosting comments directly on the website because we were concerned that Congress might take that action. They have not. But yeah, what's really whipping people up is Sheldon Whitehouse. Senator Whitehouse has made the comment that there's a bipartisan effort that he's involved in to get rid of it.

17:08Normally, I like a lot of the work that Senator Whitehouse does. This is a horrible, horrible, horrible mistake. But yeah, if Section 230 goes, it would be real bad for a lot of companies. Anyway, well, let's take a break here and come back to another topic. Imagine getting a free marketing consultation or workshop for your law firm every month without ever booking a meeting or paying it done. Sounds too good to be true, right? They don't have to imagine it, Conrad, because they can actually experience it. Our podcast, Lunch Hour Legal Marketing, which you can watch right now on YouTube, has dozens of episodes explaining how to update your Google business profile, what kinds of campaigns are working for lawyers, and what SEO strategies you should implement.

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19:03All right. Well, there was we had the arguments in the slaughter case, the effort by the the challenge to the Trump administration's stance that they can just fire whoever they want. The FTC has statutorily imposed limitations on the president's ability to fire people who are appointed to the FTC. It's kind of a bipartisan group. They are supposed to serve terms. They are not supposed to be removed except because the administration has just been firing people at all of these sorts of agencies willy-nilly and making the claim that they have – the Constitution gives them power to fire anybody who executes any kind of executive authority.

19:52That is not what the Constitution says and not what anyone thought the Constitution said until like the mid-1970s. But nonetheless, the originalists out there have decided that the mid-1970s is the beginning of history in their mind, and they are now making the stance that they can fire folks. So in this challenge that Slaughter is making after being told that she was removed from the FTC, the oral argument happened. It went poorly for her case, but that was to be expected. The majority has not really made it seem like they had any intention of following 100 years of precedent and even longer of the Constitution and the Anglo judicial tradition to the extent that the executive power stuff stems largely from the English Civil War.

20:45Yeah, I mean, and sort of the irony there, we kind of like spill a little out for the death of irony too, right? Because folks who call themselves originalist undoing that original actual understanding, you know, it's barely a footnote at this point, but it is worth it. Yeah, the oral argument was hilarious because it's just like, well, so we have this precedent. You're ignoring it? Yeah. Okay. Well, what about this constitution? Well, we've decided the constitution says this. Oh, interesting because we have multiple agencies that were created at the time that were created by congresses that the actual framers were serving in, and they didn't think it meant that.

21:19Yeah, but all of this is a reaction to basically – there was a tweet that I wish I could remember who wrote it that sums it up. It is frightening how much of the current conservative legal movement effort is just based on retroactively making Watergate legal. All of this is just kind of like an extension of that Nixon era. They felt like they got chastised, and now it's all retroactively. We were right all along. But the reason – the story that we wrote – also a quick look ahead, of course, is there's about to be a similar case about the president's ability to fire somebody off the Federal Reserve.

22:01There's no real – if the theory that the conservative justices articulate in the slaughter case is true, then obviously the Federal Reserve is the exact same situation. But that actually, in fact, infects their personal stock portfolios and those of the very rich people who give them luxury vacations they don't disclose. So they're trying desperately to come up with some reason why that's different. They have not come up with a coherent one, but they keep – they're trying. But that's coming up in the next few weeks. meanwhile what i wanted to talk about was just in the the the story that was written that we uh talked about last week is that there was a moment in the hearing that i thought was of some you know moment uh which was justice sotomayor was asking some questions about how often do we look at hundred-year-old precedents and go worth tossing that one especially in particular ones that change the whole way the government functions.

23:03And there was the response of the Solicitor General to this was, you know, well, you know, Pannoyer v. Neff was, you know, we also, I mean, Erie Railroad, a couple of really infamous cases that we all talk about a lot more than probably deserves in our first years of law school. And a lot of folks started dunking on Sotomayor about this, like, oh, you know, she asked his question instantly he had examples but you know he had two very infamous examples that as i pointed out relate to very momentous changes god i keep going back to moment but still uh big changes i mean we we changed the way in which jurisdiction works because you know we have airplanes now you know like the the world changed in a way where it didn't make sense to limit jurisdiction the way that it was.

23:59There's nothing that has changed about the FTC. Indeed, it is the case that they're trying to overturn is about the exact same agency. It is also about the FTC. There's no justification for any of this change. And so rather than this being an instance of Sotomayor seeming wrong, the fact that he could only come up with a couple of answers like this will kind of prove the point. But unfortunately, and this is what the article focuses on, unfortunately, she pivots from this rather than focus on the it's actually kind of ridiculous that you're only coming up with a couple of examples here, pivoted to focusing on this, it changes the structure of government, and that's what makes it different, which I thought was problematic because you've got a situation where you've kind of got them on the ropes.

24:47But she's changed, and I tried to think, now why is she changing the pivoting here? And I think the argument is she sees little value in pursuing the hypocrisy because whatever, it's not going to persuade. Well, that kind of ship, the hypocrisy ship has tails, I think. Well, that's the issue, that she sees little interest in pushing the hypocrisy and thinks that if she pivots to this other thing, she's going to convince somebody. And I think that spoke to me as a fundamental problem with where we are with the liberal justices as a group. The time of persuading the majority is past. There is no persuading them.

25:30You are now building a record for extrajudicial reform. Yeah, that's what I'm thinking. I feel like putting hypocrisy doesn't matter as much as just pointing out for posterity. because like I feel like there's going to be a point where somebody's like whatever whatever amount of the republic survives it's like what were people doing because because I remember whenever you know that's that's the for reasons that is fresh in my mind to think about like when I went to the holocaust museum whenever I went to the holocaust museum there'll be like these sections there'll be these uh the areas where they ask like well what were lures doing during uh the the rule of crisis the rule of law crisis what have you or like when all the you know protections got eroded and I think this is going to be one of those things that ends up in history book I think it's unfortunate the way it played out though like just at a level of like rhetoric and sophistry the exact question that she asked that she asked this got played up as a um a gotcha moment and understandably so like if I was on the right I would do this I think I do I do I do think that it was good that she took the time to like point out that the global context of why she was asking the question that got erased and that is the huge thing and it's like it's one of those things where it's like i've never i've never had a moment i was like damn i wish the judge had better media training you know because that's that's the i think the the big issue here is that the the poor response will also get remembered for posterity yeah it's uh yeah so that was uh that was the takeaway on that i mean i think that the other kind of part of that though is that only legal nerds are really following this oral argument that closely.

27:06Even I think people who are plugged in may, when the decision comes out, look at the decision. But I think that when in terms of how the history will get written, I think we should also look to what the conservative side has done, right? Which is take these little snippets and contextualize them into future academic articles that will then kind of set the tone and make the points that you're making about, you know, what sort of may are quite a, you know, the kind of hypocrisy element to it as well as the whole. And you're changing the structure of government elements and kind of combine both of them in a kind of unlimited amount of words that you can put into academic papers as opposed to a timed oral argument that, you know, is a little bit just a harder, I think, to make a bunch of points for history's sake.

27:48Yeah, I just think that the history, yeah, as we said, and this goes back to how we're doing all this based off of law review articles from the 70s. History is not really history in any of this. Sure. But it is – but you do raise a good point that there is – and this was something that came out of this year's Law Librarians Conference, a good panel that I went to. There's a massive surge in secondary quote unquote history being written by former conservative law clerks who will then go be professors and write quote unquote history of the world that does not actually meet any of the standards that any historian would have.

28:27often skips over and just blankly asserts primary sources that don't really exist. But then this secondary source that they've written then gets cited as, hey, see, look at the history. That is an issue. And I think you're right that the existence of that is proof that we're in a post-persuasion universe. and that is what's necessary now is you're talking to the better angels of the American public's nature about getting behind broad-based reform, whether it's term limits or court expansion or whatever it is. You now need to be setting a record for that. It is no longer valuable to waste your time in these arguments pretending like you're going to change one of the colleagues' minds because they are not good faith actors.

29:21It is clear that with the exception of a few fringe issues, and actually, I mean, put aside, most Supreme Court cases are non-controversial and they all agree. But on these controversial ones, with the exception of a few fringe issues like Gorsuch on his commitment to Native American rights, other than that, you are not trying to persuade anybody. They are bad faith actors. They are people who were actively political lawyers who pushed bad faith arguments as advocates and have come to the court for the purpose of institutionalizing bad faith arguments with zero effort. And this Fed carve out to this insane new theory they're creating is just even more proof of it.

30:03They're pushing a theory that they know doesn't make any sense based on the Fed. And rather than this being proof that it makes no sense, they're creating a new carve out to the fake theory they're coming up with. They're making it all up as they go along. Anyway, well, let's take a break here and close out real quick with some law firm news. All right. So we have, you know, in a world of mergers, we have a divorce. In a world. In a world. Yeah. We have a divorce, which is the King and Wood Malisons is, I think that's how you pronounce Malisons. Malashians. I don't know. But they are going to be splitting up.

30:41Breaking up is hard to do, especially when you're a major international law firm. Yeah. But apparently from pretty much jump, there were some tensions between the two firms. And after over, what was it, a decade, decade and a half, they've decided to peace out of their arrangement. Have they tried any marriage counseling or? I mean. Court mandated counseling proved unsuccessful. They're blaming the associates. Yeah, they're blaming the associates. No, so I just thought this was interesting. You know, like I said, in a world, we have multiple international mergers going on or being speculated about right now.

31:26It seems as though that is the path to growth. Growth is kind of – we talked about this a decade ago. I guess the Adam Smith book pointed this out a decade or so ago. But growth is dead in legal, the only – what now? And what now has been largely mergers, transatlantic mergers mostly. Yeah, the most recent of which we also wrote about last week, right, which is the one that's being pursued between Winston and Straughn and Taylor Wessing is talking. But, you know, at terms of your point about the only way to grow is to merge, you know, that combined firm is looking at somewhere in the neighborhood of$1.75 billion, right?

32:11Like that's the kind of – the only way to get to those numbers is by putting – put two and two together and you figure – Yeah, there we go, Carl. Oh, good. Bring it back around. One of the reasons why you look to international mergers is there's fewer redundancies if one firm operates largely in Europe and the other in America and they merge. It works out. There's fewer redundancies, fewer people to lay off. Fewer conflicts. Fewer conflicts of interest probably. Yeah. So that's what made this really interesting because what we're dealing with are – is a largely Asia-based firm initially, Asia-Pacific initially.