Good Morning:
I love it that #FreeDC people see carrying signs—apparently unironically—that carry the name of a law passed to free the South of federal troops and end Reconstruction. I don’t mean this snidely. I actually love it. It shows that civil liberties principles are adaptable.
Tuesday on #DogShirtTV, the estimable Mike Feinberg rescued me from a solo show. Then the Greek Chorus sent us off on a discussion of whether there is in fact a crisis of masculinity, and it all got a bit philosophical.
Wednesday on #DogShirtTV, I celebrated the release of Elizabeth Tsurkov. Then the estimable
showed up (late) to talk about how different federal judges are learning from each other’s work on Trump immigration cases:Recently On Lawfare
Compiled by the estimable Isabel Arroyo
The Judicial Learning Curve
Anna Bower details how district court judges are watching and learning from one another’s struggles with the Trump administration. Bower explains how Judge Sparkle Sooknanan—learning from Judge James Boasberg’s experience having plaintiffs deported to El Salvador despite his oral order against their removal—put her orders in writing and monitored the government’s compliance to ensure the plaintiffs in her case (unaccompanied migrant children) were not removed without her knowledge or against her objections.
This time, too, the administration’s efforts to remove these children in secret and over a weekend prompted the speedy intervention of a district court judge. But Judge Sparkle Sooknanan, who handled the case this time, had a big advantage over Judge Boasberg: She knew what had happened the last time.
And that, it turned out, made all the difference. At key moments, Sookanan—her eye clearly on what happened before Judge Boasberg—made different decisions, put things in writing, and monitored compliance with her orders to make sure the children were not removed behind her back, or over her objections. The result is that a week later, the children are still in the United States—and there is an ongoing legal process before a different judge to decide their fate.
Why Liability and Insurance Won’t Save AI: Lessons from Cyber Insurance
Daniel Schwarcz and Josephine Wolff argue that the failure of cyber insurers to incentivize best practices in cybersecurity should dissuade policymakers from leaning on liability as a tool for regulating artificial intelligence (AI). Schwarz and Wolff explain that policymakers should instead develop ex ante regulations to promote AI safety.
In a new paper, we argue that liability insurers are unlikely to price coverage for AI safety risks in ways that encourage firms to reduce those risks. Instead, as in the cyber insurance market, insurers will tend to base premiums on crude measures such as firm size and industry sector. These factors may suffice to keep insurers solvent, but they will do little to incentivize meaningful improvements in AI safety. In fact, they will signal to firms that investing in AI safety is unlikely to lower premiums.
Sharpening the Tools of a ‘National Injustice’
Alexis Loeb details the Trump Justice Department’s aggressive use of 18 U.S.C. § 231—the civil disorder statute—against immigration rights protesters in Los Angeles, despite its criticism of the Biden Justice Department’s use of the same statute in Jan. 6 prosecutions.
For all the administration’s efforts to distinguish its response to the L.A. protests from the Jan. 6 prosecutions, one additional similarity exists: the use of the civil disorder statute. After maligning those prosecutions as politically driven acts of overreach, the Trump administration used the same tool against Orellana—though, as this article explains, advancing a much more aggressive, and questionable, interpretation of it.
When the Vibes Are Off: The Security Risks of AI-Generated Code
Carolin Kemper analyzes the security risks of “vibe coding,” where users without programming experience prompt large language models (LLMs) to write code for them. Kemper argues that vibe code’s susceptibility to dangers such as code bloat and hallucinations—coupled with the weakness of artificial intelligence-automated security tools—creates cybersecurity vulnerabilities that heighten the need for rigorous manual review.
Vibe coding breaks with established software development practices in a radical way. Although AI assistants have become standard tools for software engineers, they traditionally complement rather than replace human developers. GitHub Copilot exemplifies this approach: It works like an “autocomplete” system, suggesting lines of code (although it now also offers an “agent mode” that can generate, test, and run code). Nonetheless, regardless of AI involvement, all code should be (manually) reviewed and tested prior to deployment (a rule that also applies to code copied and pasted from other sources).
The idea of vibe coding is diametrically opposed to that: Vibe coders do not directly interact with code and are consequently unable to assess—much less guarantee—code quality. This lax attitude toward software quality assurance is fraught with substantial risks.
L.G.M.L. v. Noem: A Hearing Diary
Anna Bower and Roger Parloff cover the preliminary injunction hearing in L.G.M.L. v. Noem, a suit seeking to prevent the removal of hundreds of unaccompanied migrant children to Guatemala.
During the hearing, Judge Kelly heard argument on the plaintiffs’ requests for a preliminary injunction and certification of a class. The judge has yet to issue a decision on the matter.
Podcasts
On Lawfare Daily, Renée DiResta sits down with Joan Barata, Laís Martins, and James Görgen to discuss the trial of Brazilian former President Jair Bolsonaro, legal clashes over social media regulation and platform liability, the influence of Supreme Court Justice Alexandre de Moraes, and the broader intersection of tech and geopolitics in Brazil.
Also on Lawfare Daily, Scott R. Anderson and Brandon Van Grack sit down with Adam Chan to discuss the history of the Federal Communications Commission’s (FCC) role in national security, how the agency’s priorities have shifted in an era of great power competition, and sourcing and supply chains for FCC-regulated technologies.
Today’s #BeastOfTheDay is the beaver, seen here sneaking a snack:
In honor of today’s Beast, order a charcuterie board.
Tell Me Something Interesting
I—
—am no fan at all of either professional sports or celebrity culture. But I recently stumbled upon a 2021 paper that exemplifies the best results of both, and it would be dishonest to withhold it just because I find the topic irritating.Here’s the abstract:
Can exposure to celebrities from stigmatized groups reduce prejudice? To address this question, we study the case of Mohamed Salah, a visibly Muslim, elite soccer player. Using data on hate crime reports throughout England and 15 million tweets from British soccer fans, we find that after Salah joined Liverpool F.C., hate crimes in the Liverpool area dropped by 16% compared with a synthetic control, and Liverpool F.C. fans halved their rates of posting anti-Muslim tweets relative to fans of other top-flight clubs. An original survey experiment suggests that the salience of Salah’s Muslim identity enabled positive feelings toward Salah to generalize to Muslims more broadly. Our findings provide support for the parasocial contact hypothesis—indicating that positive exposure to out-group celebrities can spark real-world behavioral changes in prejudice.
I’ll be honest with you: this paper is fascinating. I’ve always been highly skeptical of the “representation” fetishism in certain progressive circles, wherein people obsessively track which studios have portrayed a gay couple kissing for three microseconds or whatever. It’s always seemed silly to me, and it still does.
That said, this paper provides pretty robust evidence that “representation”—in the right form, anyway—can change actual behavior. And that’s pretty cool.
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