Letters from Our Readers

Letters: AI chat

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Andrew and Lauren Hackney

Andrew and Lauren Hackney are trying to regain custody of their daughter. AP Photo/Jessie Wardarski

AI chat

Laurel-Ann Dooley’s “Holes in the Screen?” (December-January, page 30) was an excellent and timely story. Agencies do their best to investigate cases of possible abuse, and they do an important service. But state overreach is also a big problem. Required reporters must report everything a child says, even when they objectively know it’s a low-risk situation, there’s no physical evidence of abuse, the kids are healthy and well-fed, and small children are notorious for saying anything they want without worrying if it’s true or could be misunderstood.

Too many kids are taken away that should not be, and too many are not when they should. Either way, the child welfare system needs a lot of work, and artificial intelligence tools are not the end-all answer.

Rebecca Sczepanski
Visalia, California

Regarding “Law schools may try to prohibit AI technology in writing, but enforcement would likely be difficult” (ABAJournal.com, Aug. 31): I have been practicing law for 40 years. The letters, brief and memoranda I have read from the pens of other lawyers persuade me that lawyers, despite being so-called professionals, simply do not know how to write persuasively, and many do not know how to write a sentence that is grammatically correct.

But once a lawyer passes the bar exam, there is little that anyone can do to force that lawyer to learn to write correctly and persuasively—except hope that that lawyer is open to criticism.

When I was told that my writing stinks, I took that criticism in good faith and started on a path to change my ways. I purchased Richard M. Weaver’s A Concise Handbook. Immediately afterward, I purchased and read Henry Weihofen’s Legal Writing Style. And finally, I purchased and read Girvan Peck’s Writing Persuasive Briefs. Thereafter, I put a lot of hard work into implementing into my own writing the good advice provided in these books.

I realize that the younger generation is impressed with—in my view, overly impressed to the point of becoming stupid about—artificial intelligence and committed to taking shortcuts. Maybe it would be a good idea to force young students to read Aristotle’s Posterior Analytics and the Aristotelian John Oesterle’s Logic: The Art of Defining and Reasoning.

Bag this AI stuff. Learn to become a true professional. Learn to think. Learn to write. Get back to basics.

Joseph Cascarelli
Chester County, Pennsylvania

‘Wolf Hall’ lessons

What ‘Wolf Hall’ taught me about practicing law” (ABAJournal.com, Nov. 30) is brilliant. As the communications manager for the New Jersey Lawyers Assistance Program, I am always looking for fascinating and different articles to link to in our Law Students Corner section of our Balance e‐newsletter. This article excited me so much, I almost just sent out the link in an otherwise empty newsletter today. Law students face a lot of stress, uncertainty and doubt. Stories like this that show a current lawyer’s law school journey and the tools they discover that shape the kind of lawyer they will become are priceless. Keep up the good work.

Noreen Braman
New York City

Qualified immunity

Police are not, to use professor Joanna Schwartz’s word, “untouchable” (“Shielded,” October-November, page 26). She claims that because of the qualified immunity defense, a person can obtain “no relief” against “an officer [who] acted maliciously [or] intentionally violated the Constitution.”

But both the merits and the qualified immunity defense depend on an objective standard. For the merits (on use of force), it is whether the conduct was “objectively reasonable … without regard to [the officer’s] underlying intent or motivation.” (Graham v. Connor.) Similarly, the qualified immunity standard is an objective one: “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” (Saucier v. Katz.) Although an officer’s “evil motive or intent” is relevant on punitive damages (Smith v. Wade), as an author and practitioner, I have never seen a case where a jury awarded punitive damages but the court granted an officer qualified immunity.

Schwartz points out that officers are indemnified (she claims 99.98% of the time) by local governments or their insurers, but that actually benefits plaintiffs. Witness huge settlements in high-profile cases: George Floyd, $27 million (positional asphyxia/neck restraint); Walter Scott, $6.5 million (shot in the back as he was running from motor vehicle stop); Tamir Rice, $6 million (12-year-old playing with toy gun fatally shot); and Laquan McDonald, $5 million (teenager with knife fatally shot while walking away from police officer). None of the officers involved in those incidents would have been entitled to qualified immunity. And none could have paid those settlements.

Because officers do not pay settlements or judgments, that does not mean, as Schwartz suggests, they are “untouchable.” They can be prosecuted criminally (think of the Floyd case), or more often disciplined, including termination of their employment, for violating their operating procedures, which are often more stringent than constitutional standards.

I agree with Schwartz and others who opine that the U.S. Supreme Court should decide “what precedents—other than [its] own—qualify as controlling authority for purposes of qualified immunity.” (District of Columbia v. Wesby.) Yet the reality is that officers in dynamic situations do not stop to survey existing law to see if it is “clearly established.” They follow their training.

Finally, Schwartz, other liberals and even libertarians have advocated amending 42 U.S.C. § 1983 to eliminate qualified immunity. The George Floyd Justice in Policing Act of 2020 was passed by the U.S. House but failed in the Senate. It would have eliminated qualified immunity for federal, state and municipal police.

But if qualified immunity is an impediment to recovery, so is the requirement that a plaintiff prove a municipal policy or custom was a cause of the constitutional violation. (Monell v. Department of Social Services of the City of New York.)

If one wants to eliminate barriers to a plaintiff’s recovery, it is not to hold individual officers personally liable for damages but to impose vicarious liability on their municipal employers. After all, as Schwartz notes, the employers pay anyway.

Wayne C. Beyer
North Conway, New Hampshire

A word on Garner

I find myself once again disagreeing with Bryan Garner’s column (“Legal Interpretation,” August-September, page 20).

In Situation 1, the court’s decision as to what animals to which to apply the modifier “and their offspring” was closer and much more intricate than the column implies. My practice is to use numbers and indentations to make it clear visually what modifies what.

In Situation 2, I would like to have seen Garner explain the canons of ejusdem generis and noscitur a sociis.

In Situation 3, I see nothing unreasonable, let alone absurd, in applying the statute by its terms—as the court refused to apply it—to a person possessing drugs with intent to distribute while a passenger in a car stopped at a red light within 100 feet of a public park. Courts are not supposed to second-guess what the legislature actually wrote in response to its findings as to what poses a danger to the community. I can see not applying the 100-foot trigger to a person passing at speed on a limited-access highway or cruising overhead in a zeppelin, but the legislature surely wanted to cover a dealer stopped on a local street who could easily decide to commit a crime of opportunity.

Robert Kantowitz
Lawrence, New York

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