The enTalkenator Podcast

Curtis Bradley and Neil Siegel, The Supreme Court Under Threat: Early Lessons in Judicial Self-Protection.

Solum’s Download of the Week for July 19, 2025. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5325857.

This is a synthetic academic workshop generated using enTalkenator (variation of the Workshop template, using Gemini 2.5 Pro).

Abstract: “This Essay explores how the U.S. Supreme Court, despite being vulnerable to defiance of its decisions and political retaliation, has developed tools of judicial self-protection to preserve its institutional authority as well as the Constitution and the rule of law. Arguing that the Court performs not only a legal role that requires interpretation of the law but also a political one that demands institutional preservation, the Essay examines how the Court has historically navigated political threats by using a range of tools—including avoidance, delay, narrow rulings, strategic dicta, and rhetorical appeals. The Essay focuses on three nineteenth-century episodes: the Jeffersonian backlash following the election of 1800, Georgia’s defiance in the Cherokee Cases in the 1830s, and controversies over military trials during Reconstruction. In each instance, the Court adjusted its behavior in response to political threats from the Executive, states, or Congress, and it used the tools of self-protection to avoid direct confrontation while maintaining or even enhancing its authority. The Essay acknowledges the risks and imperfections of such an approach including compromised legal reasoning and potential long-term concessions but it contends that the Court must be politically attentive to be effective. It also cautions against formalist critiques of such judicial behavior that overlook the political foundations of judicial power.”

Joel Becker, Nate Rush, Elizabeth Barnes, David Rein, Measuring the Impact of Early-2025 AI on Experienced Open-Source Developer Productivity.

Available at https://arxiv.org/abs/2507.09089.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using the Google Gemini 2.5 Pro).

Abstract: “Despite widespread adoption, the impact of AI tools on software development in the wild remains understudied. We conduct a randomized controlled trial (RCT) to understand how AI tools at the February-June 2025 frontier affect the productivity of experienced open-source developers. 16 developers with moderate AI experience complete 246 tasks in mature projects on which they have an average of 5 years of prior experience. Each task is randomly assigned to allow or disallow usage of early 2025 AI tools. When AI tools are allowed, developers primarily use Cursor Pro, a popular code editor, and Claude 3.5/3.7 Sonnet. Before starting tasks, developers forecast that allowing AI will reduce completion time by 24%. After completing the study, developers estimate that allowing AI reduced completion time by 20%. Surprisingly, we find that allowing AI actually increases completion time by 19%--AI tooling slowed developers down. This slowdown also contradicts predictions from experts in economics (39% shorter) and ML (38% shorter). To understand this result, we collect and evaluate evidence for 20 properties of our setting that a priori could contribute to the observed slowdown effect--for example, the size and quality standards of projects, or prior developer experience with AI tooling. Although the influence of experimental artifacts cannot be entirely ruled out, the robustness of the slowdown effect across our analyses suggests it is unlikely to primarily be a function of our experimental design.”

James Toomey, Personhood as Participation.

Solum’s Download of the Week for July 12, 2025. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5334704.

This is a synthetic academic workshop generated using enTalkenator (variation of the Workshop template, using Gemini 2.5 Pro).

Abstract: “‘Legal personhood’ is thought to be a concept of foundational and systemic importance to the legal system, encompassing all living human beings, born alive, and certain collectivities called corporations. The problem is that the more one tries to square these uncontroversial intuitions with one another, the less the concept hangs together. Many things that we do not call ‘legal persons’ are treated in legally identical ways to entities that we do call ‘legal persons’—and entities within the class of ‘legal persons’ are treated in radically different ways among themselves. To be sure, we can call anything we want ‘legal persons’—but not without trivializing the concept.

This Chapter makes two claims. First, I argue that the concept of legal personhood, as currently understood, is not doing the work it is widely thought to. There is no account of why some entities are called ‘legal persons’ and others are not—at least not one consistent with the intuition that legal personhood is a systemically significant concept. Second, I argue that there is an organizationally foundational concept at the heart of our notion of legal personhood—the class of entities capable of participating in the law on their own terms. This class, comprised—at the moment and as far as we know—of only roughly cognitively healthy human adults, is narrower than the way in which the term ‘legal person’ is used. But it is a category that captures the foundational organizational role we have long presumed of the concept.”

E. Garrett West, Taming the Shadow Docket.

Solum’s Download of the Week for July 5, 2025. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5329091.

This is a synthetic academic workshop generated using enTalkenator (Workshop Hot Bench template, using Gemini 2.5 Pro).

Abstract: “The Supreme Court's shadow docket is causing a supposed legitimacy crisis. The conventional response is that the Court should change how it processes emergency applications to improve transparency and accountability. But the causes of the shadow docket are structural: various jurisdictional and remedial rules permit lower courts to issue orders of national significance that require the Court either to intervene on the emergency docket or to abandon its supremacy over the federal courts. This paper identifies comprehensive structural reforms, all within the Court's control, that would constrain the power of the lower courts to block national and statewide policies. I discuss ways to limit suits by associations, States, and the United States; constraints on claims brought under Ex parte Young, § 1983, and the APA; and restrictions on the scope of injunctions, preliminary injunctions, APA remedies, and declaratory relief. And I consider the reforms systematically, with different solutions working as complements to reduce the salience of matters that reach the shadow docket. The assessment of structural causes and solutions also suggests the real source of the supposed problem of emergencies at the Supreme Court. Taming the shadow docket requires reducing the power of the federal courts over the political branches. And if disempowering the lower courts would be a solution worse than the problem, then maybe the shadow docket is not even a problem after all. Instead, retaining the power of the courts might mean embracing the shadow docket.”

Aditi Bagchi, In Search of the Wrongdoer Behind Unjust Pricing.

Solum’s Download of the Week for June 28, 2025. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5310507.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using Claude Sonnet 4).

Abstract: “This chapter argues that a price can be unjust because it is the product of wrongful conduct by one of the parties to the sale, or because it is the product of an unjust market. In both cases, it is sensible to refer to the price itself as unjust not unlike the way we speak of unjust enrichment. But while the legal concept of unjust enrichment tends to refer only to enrichment that is the product of inequity between two parties, unjust prices should be understood to encompass prices that are the result of both bilateral and systemic wrongs. Some unjust prices are the result of either a bilateral or systemic wrong, but not the other. Some prices reflect both kinds of wrong, and the systemic wrong makes the bilateral wrong possible; in these cases, the background injustice is necessary to characterize the private conduct of a contracting party as wrongful. In other cases, market dysfunction, which may or may not be unjust, partially redeems a price that is prima facie unjust. While the morality of private pricing cannot be assessed without reference to the justice of the background market, because the wrongdoing—and the wrongdoers—behind bilateral and systemic wrongs are distinguishable, the wrongs call for different institutional responses within and outside of contract law.”

Žiga Avsec et al., AlphaGenome: advancing regulatory variant effect prediction with a unified DNA sequence model.

Available at https://storage.googleapis.com/deepmind-media/papers/alphagenome.pdf.

Something special this week: a synthetic introductory class (at 00:00:00) and a synthetic academic workshop (at 00:24:51), both generated using enTalkenator (using Google Gemini 2.5 Pro). The intro class is generally accessible, but the workshop is a bit more challenging for a lay person.

Abstract: “Deep learning models that predict functional genomic measurements from DNA sequence are powerful tools for deciphering the genetic regulatory code. Existing methods trade off between input sequence length and prediction resolution, thereby limiting their modality scope and performance. We present AlphaGenome, which takes as input 1 megabase of DNA sequence and predicts thousands of functional genomic tracks up to single base pair resolution across diverse modalities – including gene expression, transcription initiation, chromatin accessibility, histone modifications, transcription factor binding, chromatin contact maps, splice site usage, and splice junction coordinates and strength. Trained on human and mouse genomes, AlphaGenome matches or exceeds the strongest respective available external models on 24 out of 26 evaluations on variant effect prediction. AlphaGenome’s ability to simultaneously score variant effects across all modalities accurately recapitulates the mechanisms of clinically-relevant variants near the TAL1 oncogene. To facilitate broader use, we provide tools for making genome track and variant effect predictions from sequence.”

Miguel F.P. de Figueiredo, Brett Hashimoto, and Dane Thorley, Unwarranted Warrants? An Empirical Analysis of Judicial Review in Search and Seizure.

Solum’s Download of the Week for June 21, 2025. Available here at the Harvard Law Review.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using the Google Gemini 2.5 Pro).

Abstract: “Every year, police perform searches governed by the Fourth Amendment on hundreds of thousands of individuals and their property throughout the United States. Many of the academy’s most decorated scholars have focused on the genesis and jurisprudential nature of the Fourth Amendment’s warrant requirement. Surprisingly, we know almost nothing about how the Fourth Amendment regulates searches and how searches actually work in practice. In this Article, we pull back the curtain on the search and seizure process by presenting the largest quantitative study of warrants of any kind. We analyze over 33,000 warrant applications filed through Utah’s “e-Warrants” system over a three-year period. By utilizing the full texts of the warrant affidavits, along with digital timestamp metadata, we categorize warrants by type, length, and complexity and establish when and for how long judges review warrants. Our key findings demonstrate that the warrant review process is fast and nearly always results in approval. Ninety-eight percent of warrant reviews eventually result in an approval, and over 93% are approved on first submission. Further, we find that the median time for review is only three minutes, and that one out of every ten warrants is opened, reviewed, and approved in sixty seconds or less. Our analyses that account for warrant complexity and length also suggest that many approved warrants are either not read carefully or not read in full (or both). We also perform a qualitative analysis of a randomly selected subsample of warrants and find cases where the review process has clearly failed. Taken together, our results have critical implications regarding the warrant review process that force us to reconsider the constitutional nature of probable cause and the role that judicial review plays as a “check” on police searches. In light of these implications, we explore the political, economic, and logistical constraints that judges face when reviewing warrants and consider pathways to reform that are mindful of these factors.”

Nataliya Kosmyna, Eugene Hauptmann, Ye Tong Yuan, Jessica Situ, Xian-Hao Liao, Ashly Vivian Beresnitzky, Iris Braunstein, Pattie Maes, Your Brain on ChatGPT: Accumulation of Cognitive Debt when Using an AI Assistant for Essay Writing Task.

Available at https://arxiv.org/abs/2506.08872.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using the Google Gemini 2.5 Pro).

Abstract: “This study explores the neural and behavioral consequences of LLM-assisted essay writing. Participants were divided into three groups: LLM, Search Engine, and Brain-only (no tools). Each completed three sessions under the same condition. In a fourth session, LLM users were reassigned to Brain-only group (LLM-to-Brain), and Brain-only users were reassigned to LLM condition (Brain-to-LLM). A total of 54 participants took part in Sessions 1-3, with 18 completing session 4. We used electroencephalography (EEG) to assess cognitive load during essay writing, and analyzed essays using NLP, as well as scoring essays with the help from human teachers and an AI judge. Across groups, NERs, n-gram patterns, and topic ontology showed within-group homogeneity. EEG revealed significant differences in brain connectivity: Brain-only participants exhibited the strongest, most distributed networks; Search Engine users showed moderate engagement; and LLM users displayed the weakest connectivity. Cognitive activity scaled down in relation to external tool use. In session 4, LLM-to-Brain participants showed reduced alpha and beta connectivity, indicating under-engagement. Brain-to-LLM users exhibited higher memory recall and activation of occipito-parietal and prefrontal areas, similar to Search Engine users. Self-reported ownership of essays was the lowest in the LLM group and the highest in the Brain-only group. LLM users also struggled to accurately quote their own work. While LLMs offer immediate convenience, our findings highlight potential cognitive costs. Over four months, LLM users consistently underperformed at neural, linguistic, and behavioral levels. These results raise concerns about the long-term educational implications of LLM reliance and underscore the need for deeper inquiry into AI's role in learning.”

Benjamin Dinovelli, The Federal Reserve Exception.

Solum’s Download of the Week for June 14, 2025. Available on SSRN.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using the Google Gemini 2.5 Pro). Another interesting and erroneous wrinkle this week. The workshop speaker refers to the Supreme Court’s (very real) recent decision granting a stay in Trump v. Wilcox as “fictional but all-too-plausible.” I’ve again chosen to share this workshop, warts and all. This one is interesting, because the decision came well after the model’s training cut-off. And so it’s of course unaware of the decision. But it’s funny that it inferred “fictional” despite the article’s citations to the stay and discussion indicating the opinions were very much real. I could easily have just made another workshop, adding to the beginning of the article a note that the date is June 14 and that the Supreme Court had recently issued divided opinions in the Wilcox case as described in the article. But this little curiosity was worth leaving as an artifact. Perhaps the model was making a hash of the article’s discussion elsewhere of what the Court “will” do in the future to resolve Wilcox on the merits combined with its lack of knowledge of any such case.

Abstract: “The Federal Reserve is arguably the most powerful administrative agency that has ever existed in the United States.  Its administrative actions influence every facet of life: The cost to buy a new home or car, attend school, and build houses and infrastructure.  Given its significant powers and responsibilities, the Federal Reserve has long had policy independence from the Executive branch—mainly because the Federal Reserve Act prevents the President from firing Federal Reserve officers at will.  But President Trump has fired officers with similar removal protections across the government.  His Administration argues that these removal protections are unconstitutional.  And it appears the Court may agree based on its view of Article II of the Constitution.  If the Court does so, it raises a natural follow-up question: What about the Federal Reserve and its independence?  

In response, many have argued that such concerns are overblown: The Court can create an exception for the Federal Reserve.  Indeed, the Court in Trump v. Wilcox recently indicated it may do so.  It claimed that the Federal Reserve was “a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”  This Article argues that such an exception is illogical.  No historical basis exists: The Federal Reserve is not sufficiently analogous to any Founding-era entity, including the First or Second Banks of the United States or the Sinking Fund Commission.  None of them conducted discretionary monetary policy.  No functional basis exists either: The Federal Reserve exercises executive power.  And no other constitutional provision clearly justifies its independence.  It is ultimately not meaningfully different than any other administrative agency.  The Court should tread carefully before growing the removal power further. Reducing agency independence exposes the Federal Reserve to material risk.”

Yvette Butler, Epistemic Appropriation, Critical Defanging, and Lessons for a Responsive New Reconstruction.

Solum’s Download of the Week for June 7, 2025. Available on SSRN.

This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using the Google Gemini 2.5 Pro). Somewhat hilariously, the text to speech (using OpenAI’s tts models) often pronounces “defanging” as “de-FANGE-ing.” I used one Google Gemini voice this time, and it gets it right (even though it otherwise doesn’t sound as good to my ears). But I’m sharing with you all the workshop it made, warts and all.

Abstract: “This essay examines how epistemic appropriation undermines collective liberation and perpetuates a Cycle of Epistemic Oppression in law. Drawing on metaphors from Dragon Age Inquisition, a fantasy role-playing video game, I illustrate how values like Wisdom, Purpose, and Justice can be corrupted when detached and misdirected from their essential natures. Similarly, the concept of epistemic appropriation is apparent when marginalized knowers’ contributions are detached from their original context and misdirected to serve dominant interests. This concept is introduced through two case studies: Black women hair braiders whose narratives are used by advocacy groups to advance deregulatory agendas, and the Supreme Court's appropriation of Critical Race Theory critiques of racial categories in college admissions cases. Ultimately, the transformative potential of marginalized knowers’ contributions is neutralized through ‘critical defanging.’ The essay concludes by proposing that achieving collective liberation requires genuine curiosity, epistemic responsibility, and the recognition of knowledge contributions from marginalized communities without extracting them from their critical and resistant elements. This approach would help bridge divides between academics, institutions, communities, and individuals in co-creating liberatory futures.”