Law Review v. AI

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PG had too much time on his hands, so he decided to use ChatGPT to write an essay about the same topic as a law review article he came upon.

For a bit of background, most law schools have law reviews. A law review is a periodical that includes articles that often discuss recent appellate court decisions on the state or federal level. The author of the law review article analyzes the decision to determine if the decision may indicate a new development in the US or state. In some cases, the article may point out that a decision conflicts with other decisions on the same or similar topic.

As you might have already gathered, most law review articles linger in the darkness, but, on occasion, a law review article may be a forerunner for a new analysis of the law and cases decided under it.

A law school’s law review typically has student editors and staff. One or more faculty members provide overall supervision, mostly looking for wrong-headed articles that could embarrass the institution.

Being an editor or member of the law review staff is a significant plus factor in being hired by a quality law firm or other employer. Typically, it is accompanied by sterling grades.

Below is an abstract of a law review article The Yale Law Journal. Yale is a very prestigious US law school.

The title of the law review article is The Perils and Promise of Public Nuisance. In this case, the article is written by a professor employed at the University of Virginia School of Law, another law school with an excellent reputation.

[NOTE: PG apologizes for the varying font sizes. His copy of WordPress lost its mind for awhile during the creation of this post and PG can’t figure out an easy way to fix it.)

ABSTRACT. Public nuisance has lived many lives. A centuries-old doctrine defined as an unreasonable interference with a right common to the public, it is currently the backbone of thousands of opioid and climate-change suits across the United States. It was a major force behind the landmark 1998 tobacco settlements and has figured in litigation over issues as diverse as gun sales, lead contamination, water pollution, Confederate monuments, and COVID-19 safety standards. Although this common-law oddity has shaped the face of modern tort law, it is unfamiliar to the public and typically ignored, even in law schools. When discussed, it often provokes anxiety: Is it a tort at all? Whatever it is, will it swallow tort law? The regulatory state? Or separation of powers as we know it?

This Article utilizes the current opioid litigation to explore the three most common sets of objections to public nuisance: traditionalist, formalist, and institutionalist. Public nuisance can seem unusual, even outlandish. At worst, it is a potentially capacious mechanism that allows executive-branch actors to employ the judicial process to address legislative and regulatory problems. Nevertheless, its perils are easily overstated and its promise often overlooked. Historically, public nuisance has long addressed problems such as harmful products. Doctrinally, it accords better with tort law than is commonly recognized. And institutionally, it functions as a response to nonideal conditions—specifically, where regulatory mechanisms underperform.

Drawing on long-standing tort principles of duties generated by risk creation, I propose a conception of public nuisance that highlights its coherence with familiar aspects of tort law and its consistency across past and present. Public nuisance is an object lesson in the common law’s balance of stability and evolution, across time and within varying regulatory contexts.

End of legal jargon and on to artificial intelligence.

PG took the title of the Law Review article, The Perils and Promise of Public Nuisance, and asked ChatGPT to write an article on the same topic.

Following is PG’s prompt for the Ai and what the AI produced:

Prompt: Write a 500-word essay about The Perils and Promise of Public Nuisance

Public nuisance is a legal concept that refers to actions or conditions that interfere with the enjoyment of life or property of a community as a whole. It can take many forms, including noise, air pollution, littering, or blocking public access to roads and sidewalks. While public nuisance laws can provide a way to address these problems, they also present some perils and promises.

One of the perils of public nuisance is the potential for abuse by the government. For example, in some cases, public nuisance laws have been used to justify crackdowns on political demonstrations or to target marginalized communities. In these situations, the law may be used as a tool of oppression, rather than a means of protecting the public welfare.

Another peril is the difficulty of defining what constitutes a public nuisance. The line between what is acceptable and what is not can be blurry, and what may be considered a nuisance by one person may not be seen as such by another. This can lead to confusion and disputes, and it may be difficult for courts to determine what actions or conditions are truly harmful to the public.

Despite these perils, public nuisance laws also offer many promises. One of the main benefits is that they provide a way for communities to address problems that affect the quality of life for all residents. For example, if a factory is emitting toxic pollutants into the air, public nuisance laws may provide a way for neighbors to seek relief and hold the company accountable.

Additionally, public nuisance laws can serve as a deterrent to potential wrongdoers. If individuals and organizations know that they may be held responsible for the harm they cause to the community, they may be more likely to take steps to prevent or mitigate that harm. This can lead to a more livable community, and it can encourage responsible behavior by all members of society.

Finally, public nuisance laws can help to level the playing field between ordinary citizens and those with greater economic or political power. By providing a means for communities to address problems that affect them as a whole, public nuisance laws empower people to take action even in the face of opposition from those who may be better positioned to resist change.

In conclusion, public nuisance laws offer both perils and promises. While they can be misused and may be difficult to define, they also provide a way for communities to address problems and protect the public welfare. To ensure that public nuisance laws are used effectively, it is important for governments to strike a balance between protecting public health and safety and safeguarding individual rights and freedoms. Ultimately, this will help to create a more livable and equitable society for all.

PG thought the AI did quite a nice job of summarizing the topic in a very readable manner.

Below are the first few paragraphs of the law review article with footnotes omitted.

(PG notes that the intended audience for the law review article is much smaller and more specialized than the algorithm powering CHATGPT is built to address. However, there’s nothing stopping anyone from building an AI that creates documents that are written in the same manner that law review articles are.)

From the Yale Law Review article:

Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common [s]cold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so “become hurtful to the place by overpestering it with poor.” All are, or at some time have been said to be, a common (alias public) nuisance.


Public nuisance has lived many lives. A centuries-old doctrine generally defined as “an unreasonable interference with a right common to the general public,” it has recently served as the backbone for more than three thousand opioid lawsuits across the country, as well as hundreds more seeking to hold producers of greenhouse gases accountable for climate change. Twenty-five years ago, it provided the architecture for the lawsuits that impelled the tobacco industry to historic settlements of $246 billion with all fifty states. It has also spurred hundreds of mostly unsuccessful actions across the nation involving, among other things, handguns, lead contamination, water pollution,and predatory lending. Decades earlier, at the turn of the last century, officials used it to abate sewage discharge into rivers, to “repress the nuisance of bawdyhouses,” and to shut down a high-profile labor strike.

All of this and more stems from a single cause of action developed in medieval England to allow the Crown to remove impediments from public roads and waterways. In the past decades, this common-law oddity has generated thousands of lawsuits in which state officials have sued private companies for the negative impact of their products or activities on public health and welfare. Through these actions, public nuisance has influenced American tort litigation and exerted an undeniable regulatory impact.

The opioid lawsuits highlight the two ways in which public nuisance is central to modern mass-tort litigation. First, the opioid lawsuits invariably contain public-nuisance claims. The plaintiff state, local, and tribal governments claim that the opioid products made or distributed by the defendants are a public nuisance under relevant state law—that is, that they constitute an unreasonable interference with a right held by the general public, in this case by jeopardizing public health and welfare. The plaintiffs make other claims too, such as state-law claims for fraud, deceptive marketing, corrupt practices, and unjust enrichment. Nevertheless, public-nuisance claims are a central feature of the litigation and a key to its momentum.

Second, no matter what the specific claims, public nuisance provides the template for the structure of opioid litigation and other suits like it. One striking feature of public nuisance is that it permits state officials to sue parens patriae—literally as “parent of the nation,” on behalf of the people of a jurisdiction—for an infringement on public rights by a private actor. Other types of parens patriae claims exist, but public nuisance was an early example (and an inspiration to other types of suits), which provides public actors with a ready and familiar template. In modern instances, such as tobacco, opioid, and climate-change litigation, the litigation adopts the architecture of a public-nuisance suit, with an official (such as a state’s attorney general or a locality’s district attorney) suing on behalf of the public. That these suits involve a variety of other claims should not lead us to assume that they would exist in the same manner absent the public-nuisance template. To the extent that such suits are now common, the structure of public nuisance has made a lasting imprint on American tort law.

Although its substance and structure are embedded in modern American tort law, public nuisance occupies an uncertain, somewhat liminal position. It is virtually unknown to the general public, little discussed outside of litigation circles, and often ignored even in torts class. When it is discussed, it raises fraught questions. Is it even a tort? If not, what is it? Does its very existence threaten tort law? The regulatory state? Separation of powers as we know it? All in all, public nuisance exerts potentially powerful, but highly variable, real-world force, while provoking equally variable reactions from courts and commentators.

End of law review excerpt.

Feel free to compare/contrast/comment to your heart’s desire.

20 thoughts on “Law Review v. AI”

    • Here’s a response to your concern from ChatGPT, DM:

      Prompt: Explain why it’s a bad idea to use the word, “utilizes” under most circumstances

      ChatGPT response: The word “utilizes” is often seen as a pompous or formal substitute for the simple and more commonly used word “uses.” Its overuse or misuse can make the language seem unnecessarily complex and detract from the clear and direct communication of ideas. In most cases, it’s better to use more straightforward, concise, and easily understood language, rather than obscure or technical words like “utilizes.”

      • Note that ChatGPT’s response assumes that the “ideas” to be “directly communicated” are not themselves complex, and don’t have any technical uses of the term use (such as, as is extremely common in technical, political, and military writing, the “use case”) such that using the term “utilizes” avoids semantic overload. Too often, “use” is the almost-right word that leads to almost communication.

        The extreme certitude of results coming from ChatGPT says a lot (none of it favorable) about the relationship between its programmers and the Dunning-Kruger Principle. Apparently, “nuance” is not one of the things programmed in…

        • How much nuance would you expect from an 8-year old? 😉
          Most kids don’t learn nuance until their late teens. Although if GPT was trained like a millenial it’ll probably never learn nuance. 😀

          Out of curiosity, I ran the response by
          Tough crowd, it gave it a D:

          Readability Grade Levels
          Flesch-Kincaid Grade Level 13.0
          Gunning Fog Index 15.4
          Coleman-Liau Index 12.9
          SMOG Index 14.1
          Automated Readability Index 13.3
          FORCAST Grade Level 11.6
          Powers Sumner Kearl Grade 6.6
          Rix Readability 11
          Raygor Readability 12
          Fry Readability 14

          On personalism, it rated “neutral”.
          On a formality scale it was rated more formal than conversational.
          On word density, it rated:

          Text Density Issues
          Characters per Word 5.1
          Syllables per Word 1.7
          Words per Sentence 21.3
          Words per Paragraph 64.0
          Sentences per Paragraph 3.0

          Meaningless, of course, but ” software rating software”…

  1. “Being an editor or member of the law review staff is a significant plus factor in being hired by a quality law firm or other employer.”

    As it happens, I have been published in a law review. I find this hilarious, as I am not a lawyer, though I can speak the language. A professor at a third tier law school published a book on baseball’s infield fly rule. By coincidence, at about the same time I published a revisionist article on the origin of the rule. The law school was so impressed by the book that the review dedicated an issue to the infield fly rule. I was asked to contribute, which I cheerfully did just so I could put it on my C.V. My interaction with the law review staff consisted entirely of obsessive attention to citation format. There was nothing about the substance.

    I have been experimenting with ChatGPT by asking it about stuff I know really well. What I have found is that it is prone to bullshitting, in the Franfurtian sense of the word, up to an including inventing nonexistent sources and mischaracterizing the content of real ones. It also can’t get perfectly straightforward factual stuff right. It tends to start off well before taking the inevitable pratfall. I asked it to explain the infield fly rule. Here is what it said:

    “The Infield Fly Rules is a rule in baseball that is used when there are runners on first and second or bases loaded, and less than two outs. In this situation, if a fair ball is hit that can be caught by an infielder with ordinary effort, the umpire calls “Infield Fly,” regardless of whether the ball is actually caught. The purpose of this rule is to prevent the defense from taking advantage of the situation to make a double or triple play by intentionally dropping the ball. When the Infield Fly is called, the batter is automatically out and runners cannot advance, even if the ball drops or is not caught.”

    This is actually quite good up to the last sentence, which is simply wrong. This is the best of the bunch. Compare this with its explanation of when a runner is forced off his base:

    “A runner is forced off his base when a fielder holding the ball steps on the base the runner is occupying before the runner reaches the next base. This is known as a force out.”

    This answer skips the starting off well part and goes straight to the pratfall. Most answers fall somewhere in between these two. None are entirely correct.

    What I take from this is that someone who knows the subject but has weak writing skills could use ChatGPT for a first draft, reviewing it carefully and editing as needed. And you know what? That is fine. If the substance is what we care about, we ought not care how the first draft was produced. But of course what we are going to see is stuff like this submitted, skipping the dreary review and editing stages. Wackiness will ensue.

    • “I am not a lawyer, though I can speak the language.”

      R. – I am not certain if this is an accomplishment or a violation of statutes prohibiting the unauthorized practice of law.

      Or an indication that a psychiatric intervention is urgently required.

      Or evidence of a misspent youth.

      • What it actually indicates is that I am a paralegal, but fell into it late enough in life that I decided that law school did not make economic sense. I have never regretted that decision. But I am sufficiently fluent that I have on more than one occasion been asked about legal matters by members of my church, followed by my pointing out that not only am I not a lawyer and therefore unable to give legal advice, but that there are in fact two actual lawyers in the congregation. Maybe they figured I would give out advice for free. In the meantime, I am an enthusiastic proponent of the idea that a paralegal is precluded from only a few activities. I can’t suit up and go talk to a judge, and I can’t put my own name on a pleading. But that doesn’t mean I can’t research and draft that pleading before passing it on the person whose name is at the bottom.

        • But that doesn’t mean I can’t research and draft that pleading before passing it on the person whose name is at the bottom.

          …and who darned well should have read it before signing and submitting it. That I’m saying this indicates that there’s a nonzero probability that they didn’t (see, e.g., Avila v. Rubin, 84 F.3d 222, 225 (7th Cir. 1996); Clomon v. Jackson, 988 F.2d 1314, 1320 (2d Cir. 1993), both of which continue to be cited by necessity throughout the nation not just for “letters” but for actual pleadings).

        • God bless all paralegals.

          Excellent office staff have kept me from screwing up too many times for me to count.

          For me, paralegals were always more useful than partners. There was no comparison.

    • You may get to re-run your infield fly test.
      The New Bing website and Edge Browser both now run off GPT4 with current data access (instead of being trained solely up to 2021 like ChatGPT) and with better “hallucination” protection. (Reportedly.)

      Available today in preview on PC.

      The hype is strong in this one.
      Remains to be seen if it lives up to it.

      • Better hallucination protection, just in time for the State of the Union address and the various snide, self-serving responses (and they’re always snide and self-serving, no matter who gave the SotU and no matter who is giving the response).

        I. Can. Hardly. Wait. The forthcoming drinking game will be seeing what the “new” ChatGPT does when given a prompt like “Discuss weather balloons in the style of the official Republican response to the 2023 State of the Union address.”

          • As to the balloon, the whole sequence of “coincidences” are worthy of a spy thriller, though not a particularly good one:

            – Jan 27, USAF General’s Minihan’s memo to his command to prepare for a possible war with China in 2025 somehow got “leaked”.

            – Two days later, a “runaway weather balloon”/chinese spy balloon is spotted near the Aleutians. The Pentagon chooses to do nothing as it overflies at least three USAF bases under the General’s command tha just happen to ” coincidentally” host the transport aircraft that might be used to apply the much publicized Rapid Dragon long range missike barrages in case of war.

            – Three days after that the sighting of the giant balloon, visible from the ground, becomes news and story after story starts flowing from DC and Beijing, none particularly convincing.

            -Two days after that, a second “runaway weather balloon” coincidentally shows up over Colombia.

            – Among the retroactive narratives that come out is one of an earlier intrusion last year that overflew southernmost Texas (Boca Chica) and central Florida (LC-39A?), potential launch sites for the USSF’s proposed rocket delivery logistics project.

            Tin foil hat time, right?
            Because nobody on either side has any vested interest in derailing Blinken’s trip to a China facing five simultaneous crisis, right? Wouldn’t want to see any concessions that might lower the pressure on both sides.

            Really interesting times.

        • These days, I think you mean “the various snide, self-serving responses” to “the various snide, self-serving statements.”

          (“These days” means at least since 2008.)

          At least, there will apparently be no littering committed this time.

  2. I have to admit that I enjoyed the excerpt from the law journal article and was disappointed that it was not longer. However, it may go downhill after the introduction? I would like to know more about the cases in the first paragraph but suspect that they are just a lawyer’s version of clickbate and that no historical explanation will be forthcoming. That “building a thatched house in the borough of Blandford” is a public nuisance is obvious enough – given England’s 800+ years history of town planning laws – but what is wrong with “importing Irish cattle”?

    The ChatGPT effort was kind of bland and fluffy, useful if you’ve never heard of “public nuisance” or did not realise it was a subject of controversy but not much more. It did though read as if produced by a human (someone who was probably paraphrasing an encyclopedia article they’d just looked up).

  3. [T]here’s nothing stopping anyone from building an AI that creates documents that are written in the same manner that law review articles are.

    All that is right in the universe cries out against such an unholy creation. The entire English language — and every language it has ever assaulted in a dark alley searching for loose vocabulary — cries out against such an unholy creation. Nietzche’s void cries out against such a creation, and will not just stare back at you but recruit you for an endless cite-checking party.

    (In case it’s not excrutiatingly obvious, I was one of those law review editors. In fact, I was in charge of the slush pile… and you have no idea how horrifying that can be. Like the 600-double-spaced-page, 900-footnote “article” on legal problems relating to legal problems with generating income from Native American tribal resources submitted from a law school where at the time the major in-state resources for Native American tribes were forest products. That is not a hypothetical, and demonstrates rather well that lawyers don’t get irony.)

    • C. – I think some lawyers get irony, but few law school professors (the principal source for law review articles) get irony.

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