Happy Nothanksgiving! | Courthouse News Service
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Happy Nothanksgiving!

November 20, 2023

It's that time of year when we appreciate all things we're not thankful for. The Supreme Court has a Code of Conduct it can ignore and a legal AI company got one over on the press.

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

It’s that time of year again. Are you ready to celebrate Nothanksgiving?

As you should recall, one of the most important traditions of any Nothanksgiving celebration is telling everyone what you’re not thankful for.

There’s the obvious stuff — war, famine, racism, poverty, destruction of the planet — but we’re all already depressed about those things. Dig a little deeper to share horrors your guests may not be aware of.

Last week, for example, those of us in the law world got a special and unexpected Nothanksgiving treat: A Supreme Court “Code of Conduct” that includes no enforcement and no penalties.

No thanks.

It’s bad enough that some of these justices act the way they do. Now they’re claiming they’ve been misunderstood.

The news coverage of this has been fascinating.

Pretty much everyone quickly pointed to this sentence: “The absence of a code … has led in recent years to the misunderstanding that the justices of this court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.”

Hmm. How could this have happened?

The news stories then usually supply comments from experts — or people who say they’re experts — strangely similar to the encouragement you give to a toddler attempting a first step.

“Look at you! You’re trying so hard!”

I’m not impressed. The Code is more in the category of saying you’re sorry when you’re not but you got caught.

What I’m particularly nothankful for is journalism that only scratches the surface of a story. We’ve read about the new Code. We’ve read reactions to the new Code. But how many reports have you read that got into what the Code actually says?

We need to hone in on the specifics of the Code to properly misunderstand it. Like these:

Code sentence: “A justice should not be swayed by partisan interest, public clamor, or fear of criticism.”

This comes in a code gifted to us after public clamor. They’ve already violated it!

Code sentence: “The rule of necessity may override the rule of disqualification.”

No, there’s no further explanation for this. I think it means that if you need a vacation or a new camper van, that can’t be a reason to disqualify you from a case involving someone supplying these necessities.

Code sentence: “A justice should keep informed about the justice’s personal and fiduciary financial interests and make a reasonable effort to keep informed about the personal financial interests of the justice’s spouse and minor children residing in the justice’s household.”

That doesn’t mean they should keep anyone else informed.

Code sentence: “In deciding whether to speak or appear before any group, a justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public.”

Unfortunately, most members of the public are unreasonable.

Code sentence: “A justice may accept reasonable compensation and reimbursement of expenses for permitted activities if the source of the payments does not give the appearance of influencing the justice’s official duties or otherwise appear improper.”

Umm. I think I see the source of our misunderstanding — it’s the title of the document.

It’s not a “Code of Conduct.” It’s ”A History of Stuff Some of Us Did But Shouldn’t Have.”

Maybe what we really need is some public clamor for a Code of Honesty. We shouldn’t be treating our justices like toddlers.

More analysis. We should also be nonthankful for the shallow news reports last week about a study allegedly showing that artificial intelligence did better on bar exam ethics tests than humans.

This was dutifully reported even though the study came from a company peddling legal AI and the test the AI took was created just for the study!

And then, if we can believe what the company’s study says, they “estimated” how humans would have done on their made-up exam.

This isn’t news. This is marketing.

After all, what’s the point of this? Are AI going to take bar exams? Maybe eventually, but not now.

And will computers who know about ethics actually be ethical? Will this prevent them from taking over the world?

Seems unlikely.

The study report (which isn’t very long) reads like an ad for the company — which, of course, it is. There’s stuff in there, for example, about “dynamic collaboration between attorneys and their AI assistants.”

Sounds kinky. Don’t think too much about it.

Anyway, Happy Nothanksgiving everyone! Enjoy your Velveeta and cream of mushroom!

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