Workshop on Kadri and West’s “Deepfake Torts”

Thomas Kadri and Sonja West, Deepfake Torts: Emerging Tort Frameworks in U.S. Deepfake Regulation.

Solum’s Download of the Week for September 6, 2025. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5325857.

This is a synthetic academic workshop generated using enTalkenator (variation of the Workshop template, using Gemini 2.5 Pro).

Abstract: “As deepfake technology becomes increasingly sophisticated and accessible, American lawmakers are responding with a flurry of urgent legislative action to address its potential harms. Our 50-state survey of proposed and enacted deepfake legislation reveals a complex regulatory landscape in which jurisdictions are adopting a range of legal approaches, including criminal punishments, civil remedies, or a combination of methods. We also find that legislators are frequently turning to tort-law frameworks to address the harms of deepfakes.

This article explores the current landscape of tort-based regulations of deepfakes. In addition to providing an overview of the most recent legislative developments, we unpack and compare the various tort-law methods arising at the state and federal level. We further consider how lawmakers are modifying existing tort laws to address the unique concerns raised by deepfakes. While individualistic tort remedies allow victims of deepfakes to seek direct recourse through familiar private rights of action, our analysis also identifies practical and conceptual limitations with this approach. Traditional tort frameworks struggle to address key challenges posed by deepfakes, including anonymous creation, viral distribution at technological scale, and harms affecting both individuals and society broadly.

In light of these limitations, legislators are innovatively adapting traditional tort concepts—such as standing, mental states, causation, immunities, and remedies—to address deepfakes’ unique characteristics. Yet the very need for these adaptations reveals some of tort law’s shortcomings and suggests a space for complementary regulatory approaches. We consider some potential approaches that could provide this more complete framework, like tort liability for entities that enable deepfake creation and circulation, and civil enforcement mechanisms that empower state actors to vindicate both individual and societal interests. Ultimately, our findings suggest that while tort law provides a valuable foundation for addressing deepfake injuries, comprehensive protection will require additional regulatory frameworks beyond traditional tort remedies.”

Workshop on Bradley and Siegel’s “The Supreme Court Under Threat”

Curtis Bradley and Neil Siegel, The Supreme Court Under Threat: Early Lessons in Judicial Self-Protection.

Solum’s Download of the Week for July 19, 2025. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5325857.

This is a synthetic academic workshop generated using enTalkenator (variation of the Workshop template, using Gemini 2.5 Pro).

Abstract: “This Essay explores how the U.S. Supreme Court, despite being vulnerable to defiance of its decisions and political retaliation, has developed tools of judicial self-protection to preserve its institutional authority as well as the Constitution and the rule of law. Arguing that the Court performs not only a legal role that requires interpretation of the law but also a political one that demands institutional preservation, the Essay examines how the Court has historically navigated political threats by using a range of tools—including avoidance, delay, narrow rulings, strategic dicta, and rhetorical appeals. The Essay focuses on three nineteenth-century episodes: the Jeffersonian backlash following the election of 1800, Georgia’s defiance in the Cherokee Cases in the 1830s, and controversies over military trials during Reconstruction. In each instance, the Court adjusted its behavior in response to political threats from the Executive, states, or Congress, and it used the tools of self-protection to avoid direct confrontation while maintaining or even enhancing its authority. The Essay acknowledges the risks and imperfections of such an approach including compromised legal reasoning and potential long-term concessions but it contends that the Court must be politically attentive to be effective. It also cautions against formalist critiques of such judicial behavior that overlook the political foundations of judicial power.”

Workshop on surprising findings in “Impact of Early-2025 AI on Experienced Open-Source Developer Productivity”

Joel Becker, Nate Rush, Elizabeth Barnes, David Rein, Measuring the Impact of Early-2025 AI on Experienced Open-Source Developer Productivity.

Available at https://arxiv.org/abs/2507.09089.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using the Google Gemini 2.5 Pro).

Abstract: “Despite widespread adoption, the impact of AI tools on software development in the wild remains understudied. We conduct a randomized controlled trial (RCT) to understand how AI tools at the February-June 2025 frontier affect the productivity of experienced open-source developers. 16 developers with moderate AI experience complete 246 tasks in mature projects on which they have an average of 5 years of prior experience. Each task is randomly assigned to allow or disallow usage of early 2025 AI tools. When AI tools are allowed, developers primarily use Cursor Pro, a popular code editor, and Claude 3.5/3.7 Sonnet. Before starting tasks, developers forecast that allowing AI will reduce completion time by 24%. After completing the study, developers estimate that allowing AI reduced completion time by 20%. Surprisingly, we find that allowing AI actually increases completion time by 19%--AI tooling slowed developers down. This slowdown also contradicts predictions from experts in economics (39% shorter) and ML (38% shorter). To understand this result, we collect and evaluate evidence for 20 properties of our setting that a priori could contribute to the observed slowdown effect--for example, the size and quality standards of projects, or prior developer experience with AI tooling. Although the influence of experimental artifacts cannot be entirely ruled out, the robustness of the slowdown effect across our analyses suggests it is unlikely to primarily be a function of our experimental design.”

Workshop on Toomey’s “Personhood as Participation”

James Toomey, Personhood as Participation.

Solum’s Download of the Week for July 12, 2025. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5334704.

This is a synthetic academic workshop generated using enTalkenator (variation of the Workshop template, using Gemini 2.5 Pro).

Abstract: “‘Legal personhood’ is thought to be a concept of foundational and systemic importance to the legal system, encompassing all living human beings, born alive, and certain collectivities called corporations. The problem is that the more one tries to square these uncontroversial intuitions with one another, the less the concept hangs together. Many things that we do not call ‘legal persons’ are treated in legally identical ways to entities that we do call ‘legal persons’—and entities within the class of ‘legal persons’ are treated in radically different ways among themselves. To be sure, we can call anything we want ‘legal persons’—but not without trivializing the concept.

This Chapter makes two claims. First, I argue that the concept of legal personhood, as currently understood, is not doing the work it is widely thought to. There is no account of why some entities are called ‘legal persons’ and others are not—at least not one consistent with the intuition that legal personhood is a systemically significant concept. Second, I argue that there is an organizationally foundational concept at the heart of our notion of legal personhood—the class of entities capable of participating in the law on their own terms. This class, comprised—at the moment and as far as we know—of only roughly cognitively healthy human adults, is narrower than the way in which the term ‘legal person’ is used. But it is a category that captures the foundational organizational role we have long presumed of the concept.”

Workshop on West’s “Taming the Shadow Docket”

E. Garrett West, Taming the Shadow Docket.

Solum’s Download of the Week for July 5, 2025. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5329091.

This is a synthetic academic workshop generated using enTalkenator (Workshop Hot Bench template, using Gemini 2.5 Pro).

Abstract: “The Supreme Court's shadow docket is causing a supposed legitimacy crisis. The conventional response is that the Court should change how it processes emergency applications to improve transparency and accountability. But the causes of the shadow docket are structural: various jurisdictional and remedial rules permit lower courts to issue orders of national significance that require the Court either to intervene on the emergency docket or to abandon its supremacy over the federal courts. This paper identifies comprehensive structural reforms, all within the Court's control, that would constrain the power of the lower courts to block national and statewide policies. I discuss ways to limit suits by associations, States, and the United States; constraints on claims brought under Ex parte Young, § 1983, and the APA; and restrictions on the scope of injunctions, preliminary injunctions, APA remedies, and declaratory relief. And I consider the reforms systematically, with different solutions working as complements to reduce the salience of matters that reach the shadow docket. The assessment of structural causes and solutions also suggests the real source of the supposed problem of emergencies at the Supreme Court. Taming the shadow docket requires reducing the power of the federal courts over the political branches. And if disempowering the lower courts would be a solution worse than the problem, then maybe the shadow docket is not even a problem after all. Instead, retaining the power of the courts might mean embracing the shadow docket.”

Workshop on Aditi Bagchi’s “In Search of the Wrongdoer Behind Unjust Pricing”

Aditi Bagchi, In Search of the Wrongdoer Behind Unjust Pricing.

Solum’s Download of the Week for June 28, 2025. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5310507.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using Claude Sonnet 4).

Abstract: “This chapter argues that a price can be unjust because it is the product of wrongful conduct by one of the parties to the sale, or because it is the product of an unjust market. In both cases, it is sensible to refer to the price itself as unjust not unlike the way we speak of unjust enrichment. But while the legal concept of unjust enrichment tends to refer only to enrichment that is the product of inequity between two parties, unjust prices should be understood to encompass prices that are the result of both bilateral and systemic wrongs. Some unjust prices are the result of either a bilateral or systemic wrong, but not the other. Some prices reflect both kinds of wrong, and the systemic wrong makes the bilateral wrong possible; in these cases, the background injustice is necessary to characterize the private conduct of a contracting party as wrongful. In other cases, market dysfunction, which may or may not be unjust, partially redeems a price that is prima facie unjust. While the morality of private pricing cannot be assessed without reference to the justice of the background market, because the wrongdoing—and the wrongdoers—behind bilateral and systemic wrongs are distinguishable, the wrongs call for different institutional responses within and outside of contract law.”

Intro Class AND Workshop on “AlphaGenome”

Žiga Avsec et al., AlphaGenome: advancing regulatory variant effect prediction with a unified DNA sequence model.

Available at https://storage.googleapis.com/deepmind-media/papers/alphagenome.pdf.

Something special this week: a synthetic introductory class (at 00:00:00) and a synthetic academic workshop (at 00:24:51), both generated using enTalkenator (using Google Gemini 2.5 Pro). The intro class is generally accessible, but the workshop is a bit more challenging for a lay person.

Abstract: “Deep learning models that predict functional genomic measurements from DNA sequence are powerful tools for deciphering the genetic regulatory code. Existing methods trade off between input sequence length and prediction resolution, thereby limiting their modality scope and performance. We present AlphaGenome, which takes as input 1 megabase of DNA sequence and predicts thousands of functional genomic tracks up to single base pair resolution across diverse modalities – including gene expression, transcription initiation, chromatin accessibility, histone modifications, transcription factor binding, chromatin contact maps, splice site usage, and splice junction coordinates and strength. Trained on human and mouse genomes, AlphaGenome matches or exceeds the strongest respective available external models on 24 out of 26 evaluations on variant effect prediction. AlphaGenome’s ability to simultaneously score variant effects across all modalities accurately recapitulates the mechanisms of clinically-relevant variants near the TAL1 oncogene. To facilitate broader use, we provide tools for making genome track and variant effect predictions from sequence.”

Workshop on “Unwarranted Warrants”

Miguel F.P. de Figueiredo, Brett Hashimoto, and Dane Thorley, Unwarranted Warrants? An Empirical Analysis of Judicial Review in Search and Seizure.

Solum’s Download of the Week for June 21, 2025. Available here at the Harvard Law Review.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using the Google Gemini 2.5 Pro).

Abstract: “Every year, police perform searches governed by the Fourth Amendment on hundreds of thousands of individuals and their property throughout the United States. Many of the academy’s most decorated scholars have focused on the genesis and jurisprudential nature of the Fourth Amendment’s warrant requirement. Surprisingly, we know almost nothing about how the Fourth Amendment regulates searches and how searches actually work in practice. In this Article, we pull back the curtain on the search and seizure process by presenting the largest quantitative study of warrants of any kind. We analyze over 33,000 warrant applications filed through Utah’s “e-Warrants” system over a three-year period. By utilizing the full texts of the warrant affidavits, along with digital timestamp metadata, we categorize warrants by type, length, and complexity and establish when and for how long judges review warrants. Our key findings demonstrate that the warrant review process is fast and nearly always results in approval. Ninety-eight percent of warrant reviews eventually result in an approval, and over 93% are approved on first submission. Further, we find that the median time for review is only three minutes, and that one out of every ten warrants is opened, reviewed, and approved in sixty seconds or less. Our analyses that account for warrant complexity and length also suggest that many approved warrants are either not read carefully or not read in full (or both). We also perform a qualitative analysis of a randomly selected subsample of warrants and find cases where the review process has clearly failed. Taken together, our results have critical implications regarding the warrant review process that force us to reconsider the constitutional nature of probable cause and the role that judicial review plays as a “check” on police searches. In light of these implications, we explore the political, economic, and logistical constraints that judges face when reviewing warrants and consider pathways to reform that are mindful of these factors.”

Workshop on Kosmyna et al. “Your Brain on ChatGPT: Accumulation of Cognitive Debt when Using an AI Assistant for Essay Writing Task”

Nataliya Kosmyna, Eugene Hauptmann, Ye Tong Yuan, Jessica Situ, Xian-Hao Liao, Ashly Vivian Beresnitzky, Iris Braunstein, Pattie Maes, Your Brain on ChatGPT: Accumulation of Cognitive Debt when Using an AI Assistant for Essay Writing Task.

Available at https://arxiv.org/abs/2506.08872.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using the Google Gemini 2.5 Pro).

Abstract: “This study explores the neural and behavioral consequences of LLM-assisted essay writing. Participants were divided into three groups: LLM, Search Engine, and Brain-only (no tools). Each completed three sessions under the same condition. In a fourth session, LLM users were reassigned to Brain-only group (LLM-to-Brain), and Brain-only users were reassigned to LLM condition (Brain-to-LLM). A total of 54 participants took part in Sessions 1-3, with 18 completing session 4. We used electroencephalography (EEG) to assess cognitive load during essay writing, and analyzed essays using NLP, as well as scoring essays with the help from human teachers and an AI judge. Across groups, NERs, n-gram patterns, and topic ontology showed within-group homogeneity. EEG revealed significant differences in brain connectivity: Brain-only participants exhibited the strongest, most distributed networks; Search Engine users showed moderate engagement; and LLM users displayed the weakest connectivity. Cognitive activity scaled down in relation to external tool use. In session 4, LLM-to-Brain participants showed reduced alpha and beta connectivity, indicating under-engagement. Brain-to-LLM users exhibited higher memory recall and activation of occipito-parietal and prefrontal areas, similar to Search Engine users. Self-reported ownership of essays was the lowest in the LLM group and the highest in the Brain-only group. LLM users also struggled to accurately quote their own work. While LLMs offer immediate convenience, our findings highlight potential cognitive costs. Over four months, LLM users consistently underperformed at neural, linguistic, and behavioral levels. These results raise concerns about the long-term educational implications of LLM reliance and underscore the need for deeper inquiry into AI's role in learning.”

Workshop on Dinovelli’s “The Federal Reserve Exception”

Benjamin Dinovelli, The Federal Reserve Exception.

Solum’s Download of the Week for June 14, 2025. Available on SSRN.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using the Google Gemini 2.5 Pro). Another interesting and erroneous wrinkle this week. The workshop speaker refers to the Supreme Court’s (very real) recent decision granting a stay in Trump v. Wilcox as “fictional but all-too-plausible.” I’ve again chosen to share this workshop, warts and all. This one is interesting, because the decision came well after the model’s training cut-off. And so it’s of course unaware of the decision. But it’s funny that it inferred “fictional” despite the article’s citations to the stay and discussion indicating the opinions were very much real. I could easily have just made another workshop, adding to the beginning of the article a note that the date is June 14 and that the Supreme Court had recently issued divided opinions in the Wilcox case as described in the article. But this little curiosity was worth leaving as an artifact. Perhaps the model was making a hash of the article’s discussion elsewhere of what the Court “will” do in the future to resolve Wilcox on the merits combined with its lack of knowledge of any such case.

Abstract: “The Federal Reserve is arguably the most powerful administrative agency that has ever existed in the United States.  Its administrative actions influence every facet of life: The cost to buy a new home or car, attend school, and build houses and infrastructure.  Given its significant powers and responsibilities, the Federal Reserve has long had policy independence from the Executive branch—mainly because the Federal Reserve Act prevents the President from firing Federal Reserve officers at will.  But President Trump has fired officers with similar removal protections across the government.  His Administration argues that these removal protections are unconstitutional.  And it appears the Court may agree based on its view of Article II of the Constitution.  If the Court does so, it raises a natural follow-up question: What about the Federal Reserve and its independence?  

In response, many have argued that such concerns are overblown: The Court can create an exception for the Federal Reserve.  Indeed, the Court in Trump v. Wilcox recently indicated it may do so.  It claimed that the Federal Reserve was “a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”  This Article argues that such an exception is illogical.  No historical basis exists: The Federal Reserve is not sufficiently analogous to any Founding-era entity, including the First or Second Banks of the United States or the Sinking Fund Commission.  None of them conducted discretionary monetary policy.  No functional basis exists either: The Federal Reserve exercises executive power.  And no other constitutional provision clearly justifies its independence.  It is ultimately not meaningfully different than any other administrative agency.  The Court should tread carefully before growing the removal power further. Reducing agency independence exposes the Federal Reserve to material risk.”

Workshop on Yvette Butler’s “Epistemic Appropriation, Critical Defanging, and Lessons for a Responsive New Reconstruction”

Yvette Butler, Epistemic Appropriation, Critical Defanging, and Lessons for a Responsive New Reconstruction.

Solum’s Download of the Week for June 7, 2025. Available on SSRN.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using the Google Gemini 2.5 Pro). Somewhat hilariously, the text to speech, using OpenAI’s tts models. often pronounces “defanging” as “de-FANGE-ing.” I used one Google Gemini voice this time, and it gets it right (even though it otherwise doesn’t sound as good to my ears). But I’m sharing with you all the workshop it made, warts and all.

Abstract: “This essay examines how epistemic appropriation undermines collective liberation and perpetuates a Cycle of Epistemic Oppression in law. Drawing on metaphors from Dragon Age Inquisition, a fantasy role-playing video game, I illustrate how values like Wisdom, Purpose, and Justice can be corrupted when detached and misdirected from their essential natures. Similarly, the concept of epistemic appropriation is apparent when marginalized knowers’ contributions are detached from their original context and misdirected to serve dominant interests. This concept is introduced through two case studies: Black women hair braiders whose narratives are used by advocacy groups to advance deregulatory agendas, and the Supreme Court's appropriation of Critical Race Theory critiques of racial categories in college admissions cases. Ultimately, the transformative potential of marginalized knowers’ contributions is neutralized through ‘critical defanging.’ The essay concludes by proposing that achieving collective liberation requires genuine curiosity, epistemic responsibility, and the recognition of knowledge contributions from marginalized communities without extracting them from their critical and resistant elements. This approach would help bridge divides between academics, institutions, communities, and individuals in co-creating liberatory futures.”

Intro class on using airborne eDNA for “rapid assessment of whole biomes, population genetics and genomic variation”

Orestis Nousias, Mark McCauley, Maximilian R. Stammnitz, Jessica A. Farrell, Samantha A. Koda, Victoria Summers, Catherine B. Eastman, Fiona G. Duffy, Isabelle J. Duffy, Jenny Whilde & David J. Duffy, Shotgun sequencing of airborne eDNA achieves rapid assessment of whole biomes, population genetics and genomic variation, available at https://www.nature.com/articles/s41559-025-02711-w.

This is a synthetic introductory class (no expertise assumed!) generated using enTalkenator (selecting Gemini 2.5 Pro).

Abstract: “Biodiversity and its associated genetic diversity are being lost at an unprecedented rate. Simultaneously, the distributions of flora, fauna, fungi, microbes and pathogens are rapidly changing. Novel technology can help to capture and record genetic diversity before it is lost and to measure population shifts and pathogen distributions. Here we report the rapid application of shotgun long-read environmental DNA (eDNA) analysis for non-invasive biodiversity, genetic diversity and pathogen assessments from air. We also compared air eDNA with water and soil eDNA. Coupling long-read sequencing with established cloud-based biodiversity pipelines enabled a 2-day turnaround from airborne sample collection to completed analysis by a single investigator. To determine the full utility of airborne eDNA, we also conducted a local bioinformatic analysis and deep short-read shotgun sequencing. From outdoor air eDNA alone, comprehensive genetic analysis was performed, including population genetics (phylogenetic placement) of a charismatic mammal (bobcat, Lynx rufus) and a venomous spider (golden silk orb weaver, Trichonephila clavipes), and haplotyping humans (Homo sapiens) from natural complex community settings, such as subtropical forests and temperate locations. The rich datasets also enabled deeper analysis of specific species and genomic regions of interest, including viral variant calling, human variant analysis and antimicrobial resistance gene surveillance from airborne DNA. Our results highlight the speed, versatility and specificity of pan-biodiversity monitoring via non-invasive eDNA sampling using current benchtop/portable and cloud-based approaches. Furthermore, they reveal the future feasibility of scaling down (equipment and temporally) these approaches for near real-time analysis. Together these approaches can enable rapid simultaneous detection of all life and its genetic diversity from air, water and sediment samples for unbiased non-targeted information-rich genomics-empowered (1) biodiversity monitoring, (2) population genetics, (3) pathogen and disease-vector genomic surveillance, (4) allergen and narcotic surveillance, (5) antimicrobial resistance surveillance and (6) bioprospecting.”

Workshop on Bradley and Gordon Smith’s “Must Jurors Know the Stakes of Conviction?

Colin Bradley & Eleanor Gordon-Smith, Must Jurors Know the Stakes of Conviction? Sentencing, Encroachment, and Legal Proof.

Solum’s Download of the Week for May 31, 2025. Available on SSRN.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using the Google Gemini 2.5 Pro).

Abstract: “A recent view in legal epistemology holds that since knowledge is the standard for proof of criminal guilt, and since there is pragmatic encroachment on knowledge, contrary to current trial practice juries should be told the sentence a defendant would receive if convicted. We argue against this view. First, pragmatic encroachment on legal proof would produce distorted and unjust trial practice. Second, even granting pragmatic encroachment on legal proof would not of itself undermine the basic justification for withholding sentencing evidence from juries. We close on the false allure of epistemology-first arguments for legal reform.”

Intro class on “The emergence and demise of giant sloths”

Hao-Ping (Hank) Lee, Advait Sarka, Lev Tankelevitch, Ian Drosos, Sean Rintel, Richard Banks, and Nicholas Wilson, The emergence and demise of giant sloths, available at https://www.science.org/doi/10.1126/science.adu0704.

This is a synthetic introductory class (no expertise assumed!) generated using enTalkenator (selecting Claude 4 Sonnet).

Abstract: “The emergence of multi-tonne herbivores is a recurrent aspect of the Cenozoic mammalian radiation. Several of these giants have vanished within the past 130,000 years, but the timing and macroevolutionary drivers behind this pattern of rise and collapse remain unclear for some megaherbivore lineages. Using trait modeling that combines total-evidence evolutionary trees and a comprehensive size dataset, we show that sloth body mass evolved with major lifestyle shifts and that most terrestrial lineages reached their largest sizes through slower evolutionary rates compared with extant arboreal forms. Size disparity increased during the late Cenozoic climatic cooling, but paleoclimatic changes do not explain the rapid extinction of ground sloths that started approximately 15,000 years ago. Their abrupt demise suggests human-driven factors in the decline and extinction of ground sloths.”

Workshop on Bradley and Siegel’s “Court-Stripping, Court-Packing, And Court-Defying”

Curtis Bradley and Neil Siegel, Court-Stripping, Court-Packing, And Court-Defying: Revisiting The Essential Functions Of The U.S. Supreme Court.

Solum’s Download of the Week for May 24, 2025. Available on SSRN.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using the new Claude 4 Sonnet).

Abstract: “The ‘essential functions thesis’ is one of the most famous structural arguments in the field of federal courts. The thesis, which has been endorsed by a number of prominent scholars and the executive branch, posits that there are implicit, structural limits on Congress's authority to ‘strip’ the Supreme Court of its appellate jurisdiction. Court-stripping, the thesis contends, is not allowed if it would undermine the essential functions of the Court-in particular, maintaining the supremacy and uniformity of federal law. In this Article, we revisit that thesis with three goals in mind. First, we aim to show that the structural arguments underlying the essential functions thesis are relevant to the debate over whether Congress can permissibly ‘pack’ the Court-that is, add Justices to seize ideological control of the institution. Supporters of the essential functions thesis have tended to assume that packing the Court must be constitutionally permissible. In making that assumption, they have mostly resorted to a formalist, textualist frame, a posture that seems puzzling because they do not adopt such a frame in addressing Courtstripping. Second, we contend that the literature has defined the Court's essential functions too narrowly. As we show, the structural rationales that explain why the supremacy and uniformity of federal law are essential functions also suggest other essential functions. Those additional functions, in turn, provide yet another ground for questioning the permissibility of Court-packing. Third, we use the example of the essential functions thesis to invite deeper consideration of the nature of structural constitutional reasoning and how it should be done, subjects that have received insufficient attention both on the Supreme Court and in the literature. For several reasons, including newfound anxiety over executive branch compliance with adverse judicial decisions, the issues analyzed here are vitally important today.”

Intro class on “The Impact of Generative AI on Critical Thinking”

Boscaini et al., The Impact of Generative AI on Critical Thinking: Self-Reported Reductions in Cognitive Effort and Confidence Effects From a Survey of Knowledge Workers, available at https://www.microsoft.com/en-us/research/publication/the-impact-of-generative-ai-on-critical-thinking-self-reported-reductions-in-cognitive-effort-and-confidence-effects-from-a-survey-of-knowledge-workers.

This is a synthetic introductory class (no expertise assumed!) generated using enTalkenator (selecting Claude 3.7 Sonnet).

Abstract: “The rise of Generative AI (GenAI) in knowledge workflows raises questions about its impact on critical thinking skills and practices. We survey 319 knowledge workers to investigate 1) when and how they perceive the enaction of critical thinking when using GenAI, and 2) when and why GenAI affects their effort to do so. Participants shared 936 first-hand examples of using GenAI in work tasks. Quantitatively, when considering both task- and user-specific factors, a user’s task-specific self-confidence and confidence in GenAI are predictive of whether critical thinking is enacted and the effort of doing so in GenAI-assisted tasks. Specifically, higher confidence in GenAI is associated with less critical thinking, while higher self-confidence is associated with more critical thinking. Qualitatively, GenAI shifts the nature of critical thinking toward information verification, response integration, and task stewardship. Our insights reveal new design challenges and opportunities for developing GenAI tools for knowledge work.”

Workshop on Hannah Walser’s “Interpretive Facts: Textualism, Empiricism, and the Law-Fact Divide”

Hannah Walser, Interpretive Facts: Textualism, Empiricism, and the Law-Fact Divide.

Solum’s Download of the Week for May 17, 2025. Available on SSRN.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using Claude 3.7 Sonnet).

Abstract: “This Article offers the first systematic examination of where empirical linguistic evidence should fit in the federal court system's division of labor based on law and fact. I begin by identifying "interpretive facts": generalized empirical evidence about how a particular word or phrase has been used by a population of speakers, understood by a population of listeners, or both. Thanks to technological advances in corpus linguistics permitting the quantitative analysis of large numbers of texts, as well as methodological shifts that frame ordinary meaning as an empirical question, such facts are increasingly prominent in statutory and constitutional interpretation cases. I explain the complications that interpretive facts create for two key aspects of the law-fact division of labor: the default expectation that questions of fact be submitted to a jury, and the more deferential standard of appellate review that applies to a trial court's findings of fact. If courts continue to rely on interpretive facts to interpret statutes and constitutional provisions, I argue that they should avoid procedural incoherence by drawing on techniques developed in two other contexts: contract and patent law. Linguists offering interpretive fact evidence should present their arguments to a jury or a judge acting as fact-finder, as in contract cases; findings of interpretive fact should be reviewed for clear error by appellate courts, as in patent claim construction cases. In closing, I situate interpretive facts in the context of scholarly conversations about the increasingly dispositive role of historical facts in the Supreme Court's jurisprudence.”

Workshop on E. Garrett West, “Constitutional Private Law”

E. Garrett West, Constitutional Private Law.

Solum’s Download of the Week for May 10, 2025. Available on SSRN.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using Google Gemini 2.5 Pro).

Abstract: “Constitutional private law is like ordinary private law.  It imposes relational obligations on government officials, like duties to use only reasonable force against a person or not to fire an employee for discriminatory reasons, that are analogous to the rules of tort, property, or contract.  Constitutional public law, by contrast, controls when and how governments validly change non-constitutional legal rules.  When a government violates constitutional public law, as when Congress exceeds its Article I powers, the government fails to change non-constitutional legal rules but does not breach a relational duty to anyone.  That difference should reframe both forms of constitutional law.  It explains why constitutional remedies might either under-or over-protect the interests safeguarded by constitutional public law. And it shows that the best defense of constitutional private law draws on a vision of ordinary private law as a system for redressing wrongs, and that constitutional private law should be less concerned about constitutional theory and more concerned about articulating basic norms of interpersonal justice for those with official authority.”

Interdisciplinary Workshop on “Trophic level influences larval Shortbelly Rockfish development”

Kwan et al., Trophic level influences larval Shortbelly Rockfish development, available at https://academic.oup.com/mcf/article/16/6/e10319/7959870.

This is a synthetic academic workshop generated using enTalkenator (using an AI-generated interdisciplinary workshop template and authored by Google Gemini 2.5 Pro).

Abstract: “Objective: Early life success of fishes is considered one of the most important drivers of recruitment to adult populations, and elucidating the governing mechanisms is important for management efforts. Many hypotheses over the past century have been proposed to explain recruitment fluctuation, with the recently postulated Trophic Efficiency in Early Life (TEEL) hypothesis arguing that a shorter food chain length equals greater energy transfer efficiency from primary producers to larval fishes, thereby reducing early-­ life mortality and ultimately leading to stronger recruitment. Under TEEL it would then be assumed that feeding low in the food chain would improve growth and body condition, as these are often shown to be associated with increased survival in larval fishes. The objective of this study was to test this aspect of the TEEL hypothesis by quantifying condition, growth, and trophic level of larval Shortbelly Rockfish Sebastes jordani collected by the California Cooperative Oceanic Fisheries Investigations program and archived at the Ichthyoplankton Collection.

Methods: The trophic level on larval Shortbelly Rockfish was assessed with compound-­specific isotopic analysis of amino acids. Their size at age and survival were estimated with otolith microstructure. Their diet was examined through stomach content analysis.

Result: Observations indicate that larvae consuming prey at a lower trophic level have greater body weight and exhibit faster growth rates. However, feeding at a lower trophic level did not influence body length. The ingested prey responsible for the lower trophic level within larval rockfish could not be determined.

Conclusion: Larval Shortbelly Rockfish consuming prey at a lower trophic level garnered greater body weight and exhibited faster growth rates and provides support for the TEEL hypothesis. However, further research is needed to identify the preferred prey(s) responsible for the more efficient energy transfer.”

Workshop on J. Joel Alicea, “Originalism, the Administrative State, and the Clash of Political Theories”

J. Joel Alicea, Originalism, the Administrative State, and the Clash of Political Theories.

Solum’s Download of the Week for May 3, 2025. Available on SSRN.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using Claude 3.7 Sonnet).

Abstract: “The administrative state is not just premised on a view about what the Constitution means; it is premised on a view about the nature of politics and, in turn, the nature of human beings. The forceful pushback against the administrative state that we have seen unfold over the last three months represents a quite different view about what the Constitution means, and it therefore rests on quite different premises about politics and human nature. In short, originalists’ rejection of the administrative state is not just the result of a disagreement with living constitutionalism’s understanding of our fundamental positive law; it is also a disagreement with the political theory undergirding living constitutionalism and the administrative state.

In laying out that argument, I will proceed in three parts. First, I will show how the main pillars of the administrative state reflect certain progressive politico-theoretical commitments. Second, I will describe an alternative set of politico-theoretical commitments that are often associated with opposition to the administrative state. Finally, I will show how living constitutionalism is the natural extension of the political theory supporting the administrative state and, conversely, how the politico-theoretical commitments opposed to the administrative state find a natural home in originalism as an approach to constitutional theory.

The upshot is that, if President Trump’s transformation of American government succeeds, it will be because the same principles that motivate opposition to the administrative state as a matter of political theory are consistent with the principles that will motivate an originalist Supreme Court to sustain that transformation as a matter of constitutional law. The stakes of this battle over the next few years go beyond a dispute about our positive law; they go to deep questions of political theory.”