Excessive Fines and Strange Bedfellows

Geraldine gets her cash.

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With a 9-0 frown, the Supreme Court rejects the EPA’s expansive definition of “wetlands.” David and Sarah also discuss the growing Jackson-Gorsuch alliance, Ken Paxton’s impeachment, and the art of due diligence via ChatGPT.

Show notes-

–Tyler v. Hennepen County

–Sackett v. Environmental Protection Agency

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  1. Avatar photo
    Runriverrun

    I have a question about this Environmental Law Institute post on the Sackett decision that comes at the very end of this piece:
    https://www.eli.org/vibrant-environment-blog/what-comes-next-clean-water-six-consequences-sackett-v-epa

    The sentences in question are this: "In her separate opinion concurring in the judgment, Justice Kagan called this “a judicially manufactured clear-statement rule,” putting a “thumb on the scales.” Such rules of interpretation will likely proliferate in their application to other laws and other regulations."

    Is a "judicially manufactured clear-statement rule" SCOTUS speak for "Congress do your job"? Can someone explain what Kagan means by putting a "thumb on the scales". Is the ELI author worried that SCOTUS will have more rulings telling Congress to write more laws that are clear? Any assistance in interpreting these closing lines would be greatly appreciated.

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  2. Kat.C.Kirkpatrick

    As an avid AO listener it’s hard to make the case to my Remnant devoted husband that Advisory Opinions is the flagship podcast when he is drinking coffee out of a brand new Remnant Treats mug. Where’s the AO swag??

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  3. Aaron H Frank

    Not every case is on the Internet or even in West Law or Lexus. Does anyone know how many states and municipalities do not make cases available except through a visit to a courthouse?

    The ChatGPT phenomenon of making up things is not new. In an IEEE article about AI hallucinations Google wrote about this in 2018. Find the article here: https://spectrum.ieee.org/ai-hallucination#toggle-gdpr

    Pretty interesting and pretty scary.

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  4. Aaron Priest

    I suggest Randy Barnett as a guest

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  5. Avatar photo
    Bill Dyer (aka Beldar)

    I was very surprised to learn that mall fancier and twice-impeached-and-removed Alabama Supreme Court Chief Justice Roy Moore was permitted to practice, indeed, to argue, before the United States Court of Appeals for the Fifth Circuit.

    I was not surprised that he made a stupid, malpractice-laden, and wildly incompetent argument that caused his client to lose. Independent of the merits of the case, ANY client would deserve to lose based simply on being stupid enough to hire, or even accept pro bono representation from, Roy Stewart Moore.

    But this discussion prompted me to phone the clerks offices for the Fifth and Eleventh Circuits respectively — the Eleventh being a split-off from the "Old Fifth" that included Moore's home state of Alabama — to inquire about his admission status.

    And I was surprised, and gravely disappointed, to be told that he is shown in the records of both circuit clerks' offices to have been admitted and to be in good standing. However:

    VERY strangely for lawyer born in 1947, he's listed as having been admitted by the Fifth Circuit on June 2, 2020, and in the Eleventh on January 6, 2021 (a date that lives in infamy for other reasons).

    Neither clerk's records were able to reveal whether he'd previously been admitted and had his membership lapsed or revoked. Nor did they indicate whether he'd had any temporary or "pro hac vice" (nonresident admissions for a single case) admissions.

    Of course, any member of the panel before whom he committed this client-immolation could, sua sponte, raise his fitness to continue as a member of the bar of the Fifth Circuit. If there are any friends of the pod who read these comments and who clerk for, or indeed are themselves, judges on the Fifth Circuit, I encourage them to give that matter due consideration.

    Roy Moore and Ken Paxton should found a new law firm in hell, devoted to the full-time representation of Donald Trump.

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  6. Kevingray671

    Regarding Roy Moore from an Alabama attorney, the fact that he was twice de-frocked as the Chief Judge of the Alabama Supreme Court should have been enough to prevent a serious run for senate. Sadly, it was not.

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  7. Avatar photo
    Runriverrun

    Here's a (mostly) non-legal take on how the Sackett decision is affecting the US Army Corps of Engineers. https://www.wetlands.com/federal-jurisdiction-reduced-sackett/

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  8. Sjrubert

    I look forward to the follow-up about pistol-braces and bump-stocks (as compared with "wetlands"). One would assume it would note the shared absurdity that firms may ask ATF (as compared with "EPA") for a ruling about their product, but ATF reserves the ability to just change their mind later. It may even note that this harms not only the firms, but their customers.

    I'll just be over here, waiting patiently.

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  9. Avatar photo
    Witt Case

    About those AI discussions. Guys we made skynet. In simulation an AI drone tried to kill its operator and the comms tower directing the operator’s direction.

    https://taskandpurpose.com/news/air-force-artificial-intelligence-drone/?fbclid=IwAR1a2ghXicLfH_q2BKDWY3770kEdo7M7yfQax2PEXcyx3PeWA2_JQneYdQs_aem_th_AaDLjAzp2b8jB77-6aVWnnpvtsORG4YlOifoHs10wUu9EKeKhM8vuHjcwhPVLxfdpd4&mibextid=Zxz2cZ

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    1. Aaron H Frank

      This is also the basic plot of "I, Robot".

      That said, might want to read about AI Hallucinations.

      https://spectrum.ieee.org/ai-hallucination

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    2. BenP

      That's a sobering story. Important to note, however, that it's not a story about AI becoming too intelligent, but about it being mindless, like a golem that destroys what it's supposed to protect.

      https://en.m.wikipedia.org/wiki/Golem

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      1. Avatar photo
        Bill Dyer (aka Beldar)

        Indeed. There's less to this story than meets the eye.

        The first news stories I read about this weren't clear in saying that the drone operator was only killed IN SIMULATION, and their headlines affirmatively suggested that there had been a literal, actual, flesh-and-blood execution.

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  10. Avatar photo
    PB3

    Uh-oh—heads up!

    Sarah, your discussion of the ChatGPT case filing is now the second time I’ve heard you channel Buzz-from-Home-Alone energy is listing out verbal bullet points “(A) . . . (2) . . . (3). . . .”

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