And while Senate Judiciary Committee Chair Sen. Chuck Grassley, R-Iowa, is demanding answers, neither judge may ever explain whether the mistakes were the product of AI hallucinations, law professors said.
U.S. District Judge Julien Xavier Neals of the District of New Jersey in July withdrew his opinion declining to dismiss a securities class action after the order was flagged for containing quotes with mistaken attributions and incorrect court decisions.
That same month, an order issued by U.S. District Judge Henry T. Wingate of the Southern District of Mississippi pausing enforcement of a Mississippi law barring diversity, equity and inclusion in public schools, was found to contain nonexistent allegations, wrongly identified litigants and referenced terms that don't appear in the legislative text.
It's unclear if either of the judges — or their clerks — used AI to write the filings, as has been suggested by some.
And attorneys may never find out, since the judges can't be compelled to explain what happened and aren't likely to face disciplinary consequences if they choose not to, according to University of Miami School of Law professor Christina M. Frohock.
"It would be very nice for transparency and to prevent this sort of thing from happening again. It would be helpful if we could all learn from their mistakes, and I'm certainly curious," Frohock said. "But truth be told, we may never know what happened."
Different Judges, Similar Concerns
The two judges at the heart of the twin controversies don't seem to have much in common.
Judge Neals — who withdrew his denial of CorMedix Inc.'s motion to dismiss investors' securities class action after an attorney raised concerns about apparently invented quotes and incorrect case outcomes — is relatively new to the bench after being one of President Joe Biden's first judicial nominees in 2021.
The episode is out of character for the judge, who is "industrious, thorough, effective, and hard working," according to Ralph J. Lamparello, co-managing partner of Chasan Lamparello Mallon & Cappuzzo PC, who has known Judge Neals for 35 years starting when Lamparello hired the judge to work at his firm, formerly Chasan Leyner & Lamparello PC.
"Julian's strength is his integrity, his scholarship, his ability to learn. He has all the attributes that one would want in a judge," said Lamparello. "I can't speak more highly of an attorney and a member of our legal community than Judge Neals."
Lamparello suggested the controversy surrounding Judge Neals' allegedly AI-written order is most likely the result of a mix-up involving a draft opinion.
Judge Neals declined to comment. The attorneys for the parties involved in the securities class action didn't respond to requests for comment.
The judge, who was previously nominated to the District of New Jersey by President Barack Obama in 2015, but failed to get a vote in the Senate, spent much of his career before joining the federal bench in government service, mostly at the local level.
He served as the chief judge of the Newark Municipal Court, county counsel for Bergen County, and corporation counsel and then business administrator for the city of Newark.
He also spent a total of 15 years across two different periods at Chasan Leyner, where he handled commercial litigation and public entity representation, including civil rights actions, according to Lamparello.
Judge Wingate, on the other hand, has sat in the Southern District of Mississippi for 40 years, after being tapped for that seat by President Ronald Reagan in 1985.
The judge corrected his temporary restraining order staying parts of a state law prohibiting public schools, colleges and universities from engaging in DEI training after his original order identified the wrong parties, iterated allegations not in the lawsuit, and referenced quoted terms like "critical race theory" and "institutional bias" that don't appear in the text of the challenged law, according to Mississippi's attorney general, who requested an explanation.
The judge chose not to offer one, writing, "The court corrected the record, notified the parties, and the corrected TRO is the controlling order. No further explanation is warranted."
Attorneys for the plaintiffs in the case declined to comment. Judge Wingate and lawyers for the defendants didn't respond to requests for comment.
This isn't the first time Judge Wingate, who served as chief judge of Mississippi's Southern District from 2003 to 2010, has found himself under the microscope for his orders — or, in some cases, lack thereof.
The Fifth Circuit removed Judge Wingate in 2016 from presiding over a lawsuit accusing the electric utility Entergy Corp. of defrauding customers because the judge was taking too long to rule on pending motions. The following year, the court's chief judge barred new civil cases from being assigned to Judge Wingate because of his backlog.
The Fifth Circuit also vacated an injunction the state's attorney general labeled as "bizarre" after the judge halted an investigation into piracy on Google's services, even though the attorney general had only started a probe and not filed a lawsuit against the company.
Judge Wingate issued another unusual order in 2021 denying a motion to dismiss a suit brought by the U.S. Equal Employment Opportunity Commission against a strip club, having "overlooked" the order for two years after orally denying the motion before a 2019 trial.
Before taking the bench, Judge Wingate served as assistant U.S. attorney for the Southern District of Mississippi and assistant district attorney for the Mississippi Circuit Court's Seventh Judicial District. He also served in the U.S. Navy's Legal Services Office, where he was senior assistant defense counsel and trial counsel.
Ethics Consequences Seem Unlikely
Law professors say they're not necessarily surprised about instances in which judges may have used AI to write orders, but they were hoping it wouldn't happen.
"I do think it is important to note that judges issue an enormous number of orders and opinions, and in almost every case, judges and their clerks are not falling into this trap," said visiting University of California College of the Law, San Francisco professor Zac Henderson, who is a senior research fellow at the law school's Center for Innovation and in the AI Law & Innovation Institute.
The judges' refusal to articulate how the errors made their way into their orders — and whether AI played a role — is disappointing but not surprising given that, unlike the many attorneys being questioned by judges for filing AI-drafted pleadings riddled with hallucinations, federal judges don't have to explain themselves, according to the University of Miami's Frohock.
"Attorneys that make these mistakes are being forced to give their explanation, but that's a one-way street," Frohock said. "Attorneys can't make the same demand of judges."
Judges also are unlikely to face disciplinary consequences for their since-retracted orders or their reluctance to describe what happened, according to Frohock.
That's because while Rule 11 of the Federal Rules of Civil Procedure requires attorneys to certify that every document they sign has a basis in fact and law, there is no similar rule that applies to judges, she said.
The judicial canons and the code of conduct are ethical guidelines without a strict enforcement mechanism, according to Frohock, who called the judicial code of conduct "largely aspirational."
But judges can be disciplined for violating the Canons of Judicial Conduct, which require judges to perform their judicial work "competently and diligently," according to professor Bruce A. Green, who directs the Louis Stein Center for Law and Ethics at Fordham Law School.
"It is not competent and diligent for a judge to issue an opinion citing nonexistent decisions or facts that are untrue, whether because the judge mistakenly relied on AI or for any other reason," Green said.
But state court judges in states with bodies charged with disciplining judges for misconduct are more likely to face consequences for such mistakes. These federal judges are "highly unlikely" to be sanctioned over one such instance, Green said.
"Presumably, these judges have learned their lesson, and public embarrassment is enough to reinforce it," he added.
--Additional reporting by Courtney Bublé, Lauren Berg, Gina Kim and Craig Clough. Editing by Kelly Duncan and Emily Kokoll.
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