Should We Replace Judges with AI?

It isn't just college students and journalists that AI is making lazy and stupid, but the problem may be even worse than you think

There’s a remarkable story out today about a federal district court judge in Mississippi, Henry T. Wingate, who recently issued an AI-enhanced ruling that included fictitious cases, fake quotations, factual errors, misstatements of the law, and including as plaintiffs several organizations that were not parties to the lawsuit. He subsequently issued a new, corrected ruling, blaming “clerical errors referencing improper parties and factual allegations.” Clerical errors. That’s apparently what we’re going to call foolish reliance on AI now. Judge Wingate has declined to explain further, despite a request of Mississippi’s attorney general.

This is not an isolated incident. The same thing has happened in a New Jersey case.

Judge Wingate’s ruling was politically sensitive because it involved blocking a new Mississippi law than banned DEI programs in state institutions.

It isn’t just judicial opinions where such AI travesties are appearing. My pal Ted Frank, the bane of class action trial lawyers for his intrepid interventions against their pocket-lining settlements through his Hamilton-Lincoln Law Institute (which everyone should support), filed a class action lawsuit against pro-Hamas protestors who blocked roads in Washington DC back in 2024 (because DC declined to prosecute, naturally, because they are pro-Hamas). You can read Ted’s complete Twitter thread about this case here, but here are a couple of relevant highlights:

Another lawyer chimed in with a similar experience:

But these examples of AI not being ready for prime time aren’t the only examples of extremely sloppy judicial craftsmanship by federal judges. Seth Barrett Tillman, who teaches law at Maynooth University in Ireland, shared with me a draft article that ought to provoke a minor scandal when it is finally published. It requires some background, however.

Anyone remember the publishing scandal of Michael Bellesiles 2000 book Arming America: The Origins of a National Gun Culture? It was a sensational “history” that purported to demonstrate that peacetime gun ownership at the time of the American Founding was much more limited than previously supposed. The book won the prestigious Bancroft Prize, and was lavishly reviewed in the mainstream media as well as embraced by the gun control lobby, as it seemed to knock the props out of our understanding of the Second Amendment for some reason. It was a clear case of “confirmation bias,” as the Wikipedia entry about Bellesiles attests:

Roger Lane's review in the Journal of American History said that the book's research was “meticulous and thorough.” He wrote that Bellesiles had "attacked the central myth behind the National Rifle Association's interpretation of the Second Amendment." Lane declared Bellesiles’ evidence so formidable that "if the subject were open to rational argument," the debate would be over. Peter S. Onuf called the book "a myth-busting tour-de-force."

There was only one problem: Bellesiles fabricated his data. Among other things, Bellesiles was discovered to have cited findings about gun ownership from 100 colonial era will that did not exist. Researchers counted up hundreds of fabrications or grotesquely distorted claims in Bellesiles’ book. He was fired from his faculty position at Emory University after claiming, during a formal investigation, that a flood had destroyed all of his notes and materials. He had to find work as a bartender. Columbia University revoked his Bancroft Prize. Garry Wills, who had lavishly praised the book when it came out, admitted: “I was took. The book is a fraud." The book almost completely disappeared from libraries and is out of print, likely forever. By 2003 the book disappeared from academic publications, and also from judicial opinions. In fact, in 2003 the famously liberal Ninth Circuit issued an order to remove citations to Bellesiles’ publications from a 2002 full-length Ninth Circuit opinion.

So it came as a surprise to Prof. Tillman to discover recently that several federal judges have cited Bellesiles in court opinions:

Between 2003 and 2021, inclusive, [Bellesiles] was not cited in any federal appellate opinions (that is, those available on Westlaw or LexisNexis). Since 2021, he was cited in SEVEN federal appellate opinions (including concurrences and dissents). The SEVEN opinions include: one Ninth Circuit opinion by BEA; two Ninth Circuit opinions by VANDYKE; one Third Circuit opinion by ROTH;3 two Eighth Circuit opinions by COLLOTON; and one Third Circuit per curiam opinion. All four of the judges listed here were appointed by Republican presidents.

It gets worse as you go down the judicial food chain:

Between 2000 and 2020, inclusive, Bellesiles was not cited in any federal district court opinions (that is, those available on Westlaw or LexisNexis). Since 2020, he was cited in TWENTY-TWO federal district court opinions.

The TWENTY-TWO opinions include:

two opinions from BROWNING, D.N.M., a Republican appointee;

one opinion from REEVES, S.D. Miss., a Democratic appointee;

one opinion from DELGADO-COLON, D.P.R., a Republican appointee;

one opinion from ARIAS-MARXUACH, D.P.R., a Republican appointee;

two opinions from SCHOFELD, S.D.N.Y., a Democratic appointee;

one opinion from CARTER Jr., S.D.N.Y., a Democratic appointee;

two opinions from ROMAN, S.D.N.Y., a Democratic appointee;

one opinion from RAKOFF, S.D.N.Y., a Democratic appointee;

one opinion from ENGELMAYER, S.D.N.Y., a Democratic appointee;

three opinions from AYCOCK, N.D. Miss., a Democratic appointee;

one opinion from ESTUDILLO, W.D. Wash., a Democratic appointee;

one opinion from BURGESS, D. Alaska, a Republican appointee;

two opinions from BRANN, M.D. Penn., a Democratic appointee;

one opinion from DORSEY, D. Nevada, a Democratic appointee;

one opinion from McGLYNN, S.D. Illinois, a Republican appointee; and,

one opinion from BENITEZ, S.D. Calif., a Republican appointee.

There are sixteen judges listed here. Six of the judges were appointed by Republican presidents. Ten of the judges were appointed by Democratic presidents. . . I see no evidence that any of these citations were critical of Bellesiles’ scholarship.

And when you proceed from here to state court opinions, guess what? Yup—lot’s more of this nonsense.

This is simply astounding. What next—judges citing Clifford Irving’s fabricated “autobiography” of Howard Hughes in any lingering legacy litigation over the Hughes business empire? Who is responsible for these citations? Likely clerks, whose legal education and diligence are pretty suspect. When you see incompetent citation practices like this, you might think maybe replacing judges (and/or their clerks) with AI isn’t such a bad idea after all (assuming AI gets better, which is a pretty safe assumption).

This problem is connected to the ridiculous style of law review article writing, which is going to be a topic in an episode of the Three Whisky Happy Hour some time very soon.