Jordan Singer

Georgia legislature advances bill to keep judges’ private information out of public records

The Georgia House Judiciary Committee had advanced a bill that would shield personal information of state judges. The bill would allow judges to submit certain forms through the state Administrative Office of the Courts. The AOC would then forward information to the relevant local authorities, which would be charged with removing the judges’ personal information from public records.

The bill comes in response to ongoing threats to the judiciary across the United States. Keeping judicial addresses and phone numbers confidential is a small way to prevent harassment by dissatisfied litigants or others.

Arkansas Chief Justice digs in on scope of administrative powers

In early January, newly elected Arkansas Chief Justice Karen Baker caused a commotion by attempting to fire several senior court system administrators, including the Director of the state’s Administrative Office of the Courts. Baker was swiftly rebuked by five of her Supreme Court colleagues, who issued an order clarifying that such employees can only by fired by a majority of the Court. The Arkansas Judicial Council later issued a formal resolution — an apology of sorts — which recognized the targeted employees’ service to the judiciary.

But Chief Justice Baker is not done fighting about the scope of her authority. Last week she met with the Arkansas House Judiciary Committee. As the local press reports:

“There are differences of opinion about whether I have the same authority that chief justices have always had in Arkansas, and I am unwilling to accept that I don’t have the same authority to hire the Administrative Office of the Courts executive director, which is the area of contention,” Baker told lawmakers. “If we can’t work that out, we’ll probably be litigating that issue.”

Whatever the evenutal outcome, this fight will undoubtedly cause distraction and bad blood in the workplace. Ugh.

Is Delaware losing its grip as the preferred state of incorporation?

For more than a century, Delaware has been the go-to state of incorporation for American businesses. Even though a business may file Articles of Incorporation in any state (even if the state bears no relation to where it is actually doing business), more than two-thirds of corporations choose Delaware.

There are a number of reasons why Delaware has become the favored location for business, many of them related to litigation. Delaware has a reputation for having somewhat corporate-friendly laws, and has a specialized business court–the Delaware Court of Chancery–whose judges are sophisticated in business litigation. Moreover, current laws governing personal jurisdiction make it easier for corporations to funnel cases against them into the state in which they are incorporated, again making it more likely that they will benefit from business-friendly laws and business-savvy judges.

But times may be changing. The Wall Street Journal reported yesterday that Meta is exploring the possibility of leaving Delaware and reincorporating in Texas or another state. The story explains:

Executives and controlling shareholders of public companies have long expressed frustration with the Delaware Court of Chancery, which has become home to a thriving shareholder plaintiffs’ bar. The big companies that have reincorporated elsewhere have tended to have a dominant owner potentially affected by the recent Delaware decisions.

Meta is not alone. Earlier this week Dropbox formally announced its intent to reincorporate in Nevada, and yesterday Pershing Square CEO Bill Ackman announced that his his management company would also be reincorporating in Nevada.

To be sure, Delaware remains the dominant state for incoporation, at least for now. But with nearly half the state establishing their own specialized business courts and certain states (like Nevada and Texas) actively courting businesses, it would not be surprising to see a very different corporate litigation landscape in the coming years.

Will the OpenAI case put pressure on US courts to resolve internet jurisdiction?

Artificial intelligence behemoth OpenAI is currently defending a lawsuit in India, brought by that country’s domestic news agency ANI. The primary allegation is that OpenAI improperly used ANI’s copyrighted material to train its generative AI programs.

Open AI has raised a number of defenses, including that the courts of India have no personal jurisdiction over it. As every first-year law student learns, courts must have personal jurisdiction over a defendant before they can issue any binding order. For centuries, personal jurisdiction required that the defendant be physically present where the court was located. However, as 20th-century advances in transportation and communciation made it easier for people to cross state and national boundaries, courts adjusted the doctrine. It is now widely recognized that someone who enters a state or foreign country (even virtually) and causes mischief can be subject to that state or country’s jurisdiction, even if the defendant is not physically located there.

But there are still limits. The United States Supreme Court has insisted that a defendant must “purposefully avail” itself of the state where the lawsuit is filed, meaning that it must engage with the state in some intentional and deliberate way. An accidental or unforeseen connection to the forum will not do.

And thus human interaction through the internet–so wide-ranging and ubiquitous in modern life–poses a problem. An e-commerce giant like Amazon or eBay might be said to purposefully avail itself of a forum by offering goods for sale in that forum through the internet. The interaction is knowing, willful, and intentional, and the case for jurisdiction is easy. But what about a third-party seller who puts a product on eBay without thinking about a particular market or location? Is that purposeful availment? Or what if someone posts allegedly infringing or defamatory material on social media or a blog? Is that person subject to personal jurisdiction anywhere the site can be accessed?

The U.S. Supreme Court has never answered that question, at least not directly. It seems to want to answer the question, if the Justices’ questions during oral argument for other personal jurisdiction cases are any indication. But the Court seems unable to articulate a coherent and workable set of jurisdictional rules for the internet, and instead keeps deferring the issue. (Meanwhile, lower courts in the United States are doing the best they can to articulate meaningful principles of internet jurisdiction, with a common approach being to allow the exercise of jurisdiction when the defendant “directed electronic activity into a forum” with the “manifest intent of engaging with persons in that forum.” That captures the Amazons of the world who know where they are selling and shipping products, but probably not the ordinary Instagrammer who just posts something online.)

But the Supreme Court may not be able to wait much longer. The outcome of the OpenAI case in India may force its hand, or at least put greater pressure on it to reach a resolution applicable to American courts.

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Illinois Supreme Court issues policy on use of generative AI

The Illinois Supreme Court has issued a policy governing the use of generative AI. The policy is consistent with the ABA’s Formal Opinion on AI that came out last summer. Unsurprisingly, the Illinois policy extends an attorney’s ordinary ethical obligations to the use of generative AI, holding lawyers accountable for understanding how the technology works, as well as checking for errors and hallucinations, before filing anything with the court.

Texas expands virtual court program for criminal cases

The Texas Department of Criminal Justice has announced plans to expand remote court appearances for inmates using videoconferencing technology. Rather than being transported to county courthouses for hearings and other legal proceedings, inmates would appear before the court using secure video.

Video hearings offer much in the way of efficiency and even safety, relieving the state of the burden of having to transport parties to and from the courthouse. But they still need to provide all the constitutional guarantees of due process. If the video technology is unreliable or if there is a real sense that not being in the courthouse deprives a party of his or her day in court, the program would need to be revisited.

These types of video hearings took off during the pandemic, and some states made the hearings available for public viewing on YouTube or their own websites. I watched a few during that period (mostly from Michigan), and the prisons offered inmates with a hearing a private, quiet space for the videoconference. If Texas can continue that tradition, this seems like a meaningful advance for all involved.

Colorado judges discuss the pros and cons of AI

This is an interesting article on a recent panel discussion in Colorado, in which state and federal judges shared the courts’ emerging views on generative AI with the rest of the legal community. It is clear that, like the rest of us, courts are struggling to achieve the right balance between AI as an impermissible shortcut and AI as an efficient game-changer.

And AI can absolutely be that game-changer for written materials. Current iterations of AI tend to write in a dull and wooden style, at least for legal work. But short motions and briefs can be drafted in a matter of seconds (and polished within minutes), rather than taking hours to draft and revise. And the output is grammatically correct and readable, which is a huge plus. Thoughtful use of AI in written submissions might alleviate the problems that stem from the notable decline in younger lawyer’s writing skills.

It seems that we are headed in the direction of treating AI like a paralegal or inexperienced attorney — eventually its use will be explicitly permitted, but failure to confirm all the details will be an ethical violation in itself. Stay tuned.

Illinois courts grapple with forum shopping law

The Judicial Conference of the United States made headlines last March when it instituted a new policy designed to prevent plaintiffs from strategically choosing a particular court (and really a particular judge) to hear their cases. The move toward random case assignment was an effort to balance a plaintiff’s traditional power to choose the forum (subject to important jurisdictional and venue limitations) against the growing scourge of “judge shopping” in cases seeking nationwide injunctions against federal government policies.

The Illinois Supreme Court is now confronting a similar question about a plaintiff’s limits on the choice of forum. In 2023, the Illinois legislature passed a law that requires constitutional challenges to state laws to be filed in either Cook County (the state’s largest county) or Sangamon County (the seat of state government). The law appears to have been a reaction to a series of lawsuits challenging legislation ending cash bail, banning assault weapons, or mandating specific actions in light of COVID-19. By limiting such suits (and those like them) to two designated counties, the state can restrict plaintiffs from selecting a court elsewhere in the state whose judges might be more sympathetic to a constitutional challenge. (Remember that Illinois trial judges are elected, and their political leanings may be easier to decipher as a result.)

But what if the plaintiff’s closest and most convenient court is not one of the two designated in the law? In the case now before the Illinois Supreme Court, a gun shop located in East Alton (just across the border from St. Louis, Missouri) brought a challenge to the constitutionality of a 2023 firearms regulation. The case was filed in Madison County, the plaintiff’s home county, whose courthouse is located about half an hour away. Citing the forum shopping law, the state (as defendant) tried to move the case to Sangamon County, which is about 90 minutes away. The judge based in Madison County denied the motion, arguing that forum shopping law denied parties their due process rights by depriving them of their ability to mount their best possible case. The state appealed.

On the face of it, this case is not an obvious example of forum shopping. The Madison County court is indeed the home court of the plaintiff and the most convenient location. Moreover, if judges are randomly assigned cases within a judicial circuit, Madison County does not provide a strategic advantage over Sangamon County. The former (located in the state’s Third Judicial Circuit) has 20 circuit judges; the latter (located in the Seventh Judicial Circuit) has 21. In either case a random assignment would give a plaintiff only a 5% chance of landing a specific judge.

Underlying all of this is the state legislature’s engagement in the administrative workings of the courts. It will be interesting to see how the state supreme court untangles this issue.

State courts explore using AI for behind-the-scenes HR work

Most news about the use of AI in the legal world tends to focus on ethical slipups like relying on ChatGPT to draft briefs or do legal research. But behind the headlines, courts and law firms are becoming incresingly proficient with using generative AI to perform routine administrative and bureaucratic tasks. A good example is the use of AI to streamline human resources work for the courts. In a recent webinar hosted by the National Center for State Courts and Thompson Reuters, participants pointed out that among other things, HR managers can employ AI to more quickly craft job descriptions and performance reviews.

Of course, AI is still a new and somewhat unpredictable technology, and there are real concerns about hallucination, infringement of intellectual property, and exposure of confidential information. But the technology is rapidly improving and meaningful protocols will be in place soon enough. Court and law firm administrators would do well to see AI as another potentially time-saving tool in the tool kit, no different from word processing software or copy machines in earlier generations.

NCSC creates innovation lab to introduce new technology to courts

This is a very cool development. The National Center for State Courts (NCSC) has created an innovation lab that allows court leaders to observe and test the latest court technology. The lab grew of a recognition that courthouse space needs to be used more creatively in order to provide meaningful access to users.

The lab’s focus extends beyond the courtroom, with prototype “community access points” for public users who will be accessing court services from another location, as well as advanced conference rooms and huddle spaces.

Kudos to the NCSC for embracing the challenges of innovation. I’ll look forward to seeing how these technologies are incorporated by the courts in the coming years.