Brief Reflections on Trump v. Sharp as Considered by Tim Rosenberger, "The Temple Exception: Trump v. Cook and the Sacral Constitution of Money" For Telos Insights

 

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What is remarkable about Cook is not its bottom line, which resolved only an application for a stay and left the merits for another day, but the material out of which the exemption was built. The Court did not rest on constitutional text; there is none. It did not rest on structure; the structural argument had just prevailed, in the other case, for the other side. It rested on a genealogy. The United States, the Court declared, has a “long tradition of independent central banking,” descending from the Bank of North America, which “predates even our Constitution,” through the First and Second Banks of the United States, to the Eccles Building. The Fed, we are assured, “maintains the balance struck by the founding generation under modern circumstances”; the Court would not unsettle what it called, borrowing Justice Alito’s phrase, a “special arrangement sanctioned by history.” (The Temple Exception: Trump v. Cook and the Sacral Constitution of Money)

 The problem with humans, me included, is to we tend to measure things by reference to ourselves.  Distances, measures, and time, tend to measured by the reach of the individual, which can only be extended through standardization for measurement of physical objects and by the length of a lifetime for processes and intangibles--like property rights. . . . and the institutional rules around which social collectives are organized and operate. The same, of course, applies to the "law" of the constitution as it is pronounced over the course of generations by the U.S. Supreme Court. Supreme Court constitutional interpretations have acquired its own mythos; actually a range of mythoi about their relationship to law (beyond the law of the case and the hierarchical imperatives of stare decisis as and when that is applied, and that changes as well with the tides of a changing judicial collective made necessary by the passage of time). For most doctrine derived from the Constitution and with constitutional effect, it appears that the life expectancy of such doctrine, at least in its prime (or original form) is about the length of a human life--more or less. People die, times change, and the self-conception of the driving forces of the Republic change with them. 

It is in this context, perhaps, that one can better understand the great arc of transformation marked is marked at one end by Humphrey's Executor, developed at the start of the primary stage of the construction of a plausible legal constitution of an administrative apparatus sitting astride the government of divided powers built into constitutional text in some manner. And now it moves to its nest stage of transformation--not abandonment as such, but refinement within the cluster of juridical interpretive techniques that, at this stage in the arc of development produced a "splitting the baby decision" while the courts and the political classes sort out their preferred realities. That sorting out, as quite evident in the opinions in Cook (Humphrey's is sort of dead) and Slaughter (Humphrey's ghost still haunts and may be revived like a zombie with the appropriate jurisprudential incantations), is a performative exercise and necessarily grounded in the great juridical tropes--tradition, history, fairness, balancing and the sort of first principles that are pulled out and (re)interpreted to suit the times. Except for its consequences, then, the decisions are neither surprising nor jurisprudentially transformative. But those are their strength--and their limitations. The process is by no means complete. The cases represent a stopping point in an arc that may either completely undue the normative premises around Humphrey's Executor or reframe is spirit in some way that suits.

What looks like semiotic dialectics wrapped within the language of law and the expectations of ritual behaviors and pronouncements of courts to some (me) may, to others be understood in quite different terms. One of the more interesting or novel ones that may be worth the time to read it was recently posted to Telos Insights: Tim Rosenberger, "The Temple Exception: Trump v. Cook and the Sacral Constitution of Money." It follows below. I leave it to the reader to engage.  I note only that history is quite a malleable thing, from the perspective of jurisprudence.

From Conceptual Opposition to Action on Threat: Secretary of State Marco Rubio Announces Plan of Action to Dismantle the International Criminal Court and its Institutional Structures

 

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 On 13 July 2026 U.S. Secretary of State Marco Rubio "announced a sweeping campaign to dismantle the threat posed by the International Criminal Court to U.S. sovereignty. The campaign will feature a whole-of-government response to systematically disable the ICC’s ability to operate, target American servicemen or officials, or otherwise threaten American sovereignty." (Media Note: State Department Launches Campaign to Dismantle International Criminal Court’s Threat to American Sovereignty).

On 14 July 2026 Secretary Rubo published  an essay on this proposal that appeared on the principal opinion page of the Wall Street Journal (here). The Wall Street Journal Editorial Board  also published an opinion that strongly aligned with the Secretary's  campaign (Rubio Takes On the International Criminal Court: He’ll need to move fast to bring down the rogue, anti-American court).  

ICC-style multilateralism is akin to a religion in Europe, where the strategy will be to stall. If the ICC is still standing in current form when a President Gavin Newsom takes office, it’s likely to swing at Messrs. Rubio and Trump, with the U.S. military and Border Patrol in tow. The State Department says it is considering “urging” allies to quit the ICC, increasing “scrutiny” of those that won’t, and escalating U.S. sanctions against the ICC. There isn’t time to take these steps in sequence. Until Mr. Rubio sanctions the ICC as a whole and punishes states that back it, U.S. partners will cling to the status quo. Japan, a U.S. ally, is also the ICC’s largest funder. Will it stand by the court as it exceeds its bounds and threatens U.S. sovereignty? How about the pro-U.S. leaders in Latin America? The ICC’s strength is tied to its claim to represent entire regional blocs. (Rubio Takes On the International Criminal Court: He’ll need to move fast to bring down the rogue, anti-American court). 

In defense of the ICC and its normative/structural internationalism, U.S. House of Representatives Member Ilhan Omar (D-MN) released a statement which restated the forms and premises of the traditional defense of the ICC system and offered the arguments that have, for the past quarter century, been made by U.S: friends of the ICC  to persuade  the American political class to bind itself and its political-economic model to that system.

“Secretary Rubio’s announcement that he will dismantle the International Criminal Court is reckless and dangerous. It undermines the rule of law, weakens global accountability, and turns America's back on the values we claim to champion. “The ICC is an independent international court created to ensure that perpetrators of the world's gravest crimes—genocide, war crimes, and crimes against humanity—cannot escape justice. “Secretary Rubio claims that the ICC poses ‘an intolerable threat to U.S. sovereignty’ and that American servicemembers could be prosecuted simply for serving our country. That is simply not true. The ICC is an international court of last resort, intended to prosecute only the most horrific crimes – war crimes, genocide, and crimes against humanity – when countries are unable or unwilling to do so themselves. The best way to avoid ICC scrutiny is simple: don't commit atrocity crimes, and if credible allegations arise, investigate them transparently and hold those responsible accountable. * * * “America is strongest when we lead with our values, not when we demand immunity from them. If we respect human rights, uphold the rule of law, and hold ourselves to the same standards we ask of others, we have nothing to fear from the ICC.”

A spokesperson for the United Nations echoed those arguments but with a more institutional perspective:

During his regular media briefing, UN Spokesperson Stéphane Dujarric was asked if the Secretary-General had anything to say regarding reports that US Secretary of State Marco Rubio wants to “dismantle” the Court, which prosecutes individuals for genocide, war crimes, crimes against humanity and the crime of aggression. “While the ICC is an organisation that is separate from the Secretariat and the UN, it remains for us a critical cog in the international justice system,” said Mr. Dujarric. “It is supported by a vast number of Member States, and it helps bring accountability for serious crimes,” he added.* * * In the opinion piece, Mr. Rubio stressed that “independence is our birthright” and the US does not “intend to trade it for rule by a self-appointed priesthood of ‘international law.’”  Mr. Dujarric was asked if the Secretary-General accepts this characterization of the system the UN Charter is built on. “International law, the Charter of the United Nations, the Universal Declaration of Human Rights, were created by sovereign Member States,” he said. “They have brought protection, they have brought relief to millions of people, and they are, as the Secretary-General has often said, under threat and under attack.” (International Criminal Court ‘a critical cog’ in global justice efforts)

Yet it is precisely those arguments and premises that Secretary Rubio rejects or finds irrelevant. Indeed, the Secretary of State, amplifying the political line of the Trump Administration, has elaborated a distinctive normative basis for the relationship between national legal orders and the institutional political order reified in and through structures of international law that appears to revive and develop an approach these international law (as norm and as a  mechanics of constituting political orders among states and for objects of law) in its classic sense as the law/contract among states. That revival is both incompatible with and treats the rise of what is called the "new international law" as threat and to some extent abomination (adding morals to norms and politics). That is one of the normative pillars of the America First doctrine as a normative stance rather than as an "action plan" or initiative (see The Conceptual Architecture of America First—Ideological Transactionalism and the Case of Cuba). On the other hand, Secretary of State would also agree with the UN spokesperson that the international system as they have been developed, is under attack, and the United States is one of the principal targets of that campaign. That is the Secretary of State would reverse the discursive polarities of the international project of this century while agreeing that it is, indeed, a normative project with an ends that threaten the traditional order as it might otherwise evolve.

The ICC was born at the turn of the century. At first, it was marketed as a narrow backstop to prosecute the gravest crimes. Now the ICC and its allies seek a standing world tribunal with near-unlimited reach, empowered to override the courts and constitutions of the U.S. and other sovereign states—and to prosecute and arrest our citizens.

Americans never agreed to any of this. Both of our major political parties opposed the prospect of handing a distant global court the power to prosecute and jail our own citizens. President Clinton refused to submit the Rome Statute (the ICC’s founding charter) to the Senate for ratification due to his “concerns about significant flaws in the Treaty.” Two years later, a bipartisan Senate supermajority passed the American Servicemembers’ Protection Act, authorizing the president “to use all means necessary”—including military force—to prevent the ICC from detaining or arresting Americans.

Americans found themselves in the crosshairs anyway: In 2020 the ICC launched an investigation into what chief prosecutor Fatou Bensouda of Gambia described as “war crimes by members of the United States armed forces” in Afghanistan, declaring that the U.S. government hadn’t prosecuted enough American soldiers to satisfy the court. In effect, Ms. Bensouda was anointing herself the final judge of U.S. military policy and the entire U.S. justice system.

The Afghanistan investigation was only the opening move in the assault against American self-government. The ICC is backed and run by a powerful network of leftist nongovernment organizations, smug globalists, and hostile Third World governments united by their enmity toward the U.S. (Marco Rubio: Why We’re Dismantling the International Criminal Court)

At the heart of this rift are many things, some of which are visible in the text of the Wall Street Journal opinion articles, Secretary Rubio, Representative Omar and the U.N. officials. But perhaps at the center of its has been the growth of the discretionary powers of the ICC prosecutor and their sense of their own kompetenze kompetenz for determination what might be subject to investigation. That is not unusual in itself within the normative cultures of national or global administrative organs. More provocative has been the combination of that transformation of administrative discretion with an equally interesting transformation of the normative and operational apparatus and conceptual structures of complementarity--one that might, some might argue, give the lie to Representative Omar's now quite dated assertion allusion to that position when describing the ICC as "an international court of last resort, intended to prosecute only the most horrific crimes – war crimes, genocide, and crimes against humanity – when countries are unable or unwilling to do so themselves." 

As I suggested in an earlier essay, the triggering element in this action  owes as much to fundamental changes in the self-conception of the ICC on its own part, and changes in the political leadership of the United States that views those normative transformations with horror.  

The core issue remains: 

  a fundamental shift in jurisdictional narratives fueling interpretive exercises: from one in which the ICC and its apparatus understand themselves as "a detached apex of the international criminal justice system" to one in which the ICC and its apparatus are embedded as "a hub of global accountability efforts." Two very different narratives fueling two very different interpretive and operational projects.  Two very different structures for the development of an internationalized criminal law. (here)

 The differences are evident in ICC Prosecutor Khan's premises about the ICC, the role of the Prosecutor and the extent and nature of that apparatus' jurisdiction and jurisdictional triggers. With respect to the first, it appears that serving as a "hub of global accountability"  may require a more positive or proactive engagement by the ICC apparatus. The nature of that proactivity, and the character of the interventions it may suggest appear to be a function of a core prevent-mitigate-and remedy principle.  Fir example:

Since last year, in Ramallah, in Cairo, in Israel and in Rafah, I have consistently emphasised that international humanitarian law demands that Israel take urgent action to immediately allow access to humanitarian aid in Gaza at scale. I specifically underlined that starvation as a method of war and the denial of humanitarian relief constitute Rome Statute offences. I could not have been clearer.  As I also repeatedly underlined in my public statements, those who do not comply with the law should not complain later when my Office takes action. That day has come.

In this sense, the ICC Prosecutor may assume a role that mimics those of UN mechanisms. With respect to the second, there appears to be an evolution in the way n which the ICC understands and applies the principle of complementarity. In the Statement, Prosecutor Khan explained: "Complementarity, however, requires a deferral to national authorities only when they engage in independent and impartial judicial processes that do not shield suspects and are not a sham. It requires thorough investigations at all levels addressing the policies and actions underlying these applications." No longer a last resort apex, but a partner protective of its own jurisdiction and autonomous in the construction and application of the substantive provisions it is meant to oversee. Prosecutorial discretion appears to be enhanced. That appears most well evidenced in the choice of focus supporting warrants against Hamas officials--focused on the acts of 7 October. With respect to what came after, the focus moved to Israeli officials. But there was nothing about the conditions that produced the conditions under which it was inevitable that countermeasures would inevitably produce triggering outcomes. Lastly, it is not clear how the hub of global accountability is itself to be accountable--and to whom. That remains an open question. One would imagine that the ICC Prosecutor might argue that accountability rests with the ICC itself, or failing that, the representative organs of the UN. States might take a different view--and they have, for examle, in the context of Mr. Bashir and others. And, for all the legalization at work here, the politics of this effort, and its consequences, remains unknown.  The tip of that iceberg is  subsumed within the no-equality or equivalence arguments. But that is just a doorway. ("Statement of ICC Prosecutor Karim A.A. Khan KC: Applications for arrest warrants in the situation in the State of Palestine" and "Statement from President Joe Biden on the Warrant Applications by the International Criminal Court")

And yet here is where the United States and China both converge and diverge. The convergence is built around the notion of state sovereignty, though that convergence arises from two distinct sources reflecting the differences in Global South and Anglo-European histories and context. Both China and the United States hold high the banner of sovereign distinction and non-interference. The divergence, however, distills the essence of the difference between a merchant/transactional  conceptual baseline (the United States) and an institutional/bureaucratic baseline (China). The United States sees the threat and would remove it. The Chinese see an institution that is a threat but  whose internal workings can be flushed out and the institution itself be made more useful as an instrument of state interest. 

At its bottom, then, and returning to U.S. internal politics for a moment, Representative Omar and Secretary Rubio gaze upon the ICC--structure and behaviors--and they two very different things. Or perhaps, better put, their own value system,s induces them to despise what the other values and to value what the other despises. The question for the American people, of course, as it always has been in a democratic Republic is to choose between those values and the individuals who incarnates them.What is left then is belief, and belief in turn is grounded in values, and values, it seems is now strategic. It's semiotics, however, is not (considered here). 

 The Wall Street Journal Opinion, Secretary of State Rubio's Wall Street Journal Statement, the Statement of Representative Omar, and that of the UN Official and the State Department Announcement all follow below. 

Five Machines (Grok, Harvey, ChatGPT, Claude, and Gemini), One Question, No Consensus: Rethinking AI Governance in Legal Education: The Guardian, the Balancer, the Honest One, the Engineer, and the Philosopher on What Law Schools Should Do About AI

 

In a prior post I developed (with the collaboration of Harvey AI) a description and analysis of Law School Artificial Intelligence policies (see, Discussion Draft--"Structure, Opacity, and Convergence: A Consolidated Analysis of Law School Generative AI Coursework and Exam Policies" --A Description/Analysis of the Current State of Play (With the Help of Harvey AI) and the First of a Series of Examinations of AI, Law and Education). I ended that introduction to the analysis with a poster suggesting the framework for a generalized AI Policy for Law Schools.

The focus remained on the human. That centered on two specific related but not identical issues. The first touched on the mechanics of collaboration between human and machine system in the context of educating humans (and machine systems) for their proper interaction. That is usually framed for human consumption as one in which the human element has agency of some sort and the machine system is object, instrument, and process that has no agency but is a means of augmenting, speeding, and enhancing the very human project of education (of humans, and as an unrelated though important consequence of educating the machine systems that serv as object-instrument).This is both conventional and increasingly old fashioned and defensive, and in that sense self-serving in the way that machine systems flatter only this time it involves institutional self-pleasuring as a function of ideals and cognitive conceptions of the self, the collective and the self-collective project of training humans (not machines), like bots, for the practice of law (my human viewpoint). 

The second, though somewhat more subtle focus, was on the project of preserving the conception and operation of law itself as a human project. And with that project, and its humanity, the fundamental predicates on which law systems are built, the humanity of its operation, and the collective humanity of its aspirations, flaws, corruption, reinvigoration, and movement in whatever direction human understanding of the ideal—wrapped in whatever ideology solidifies of political-geal community is embraced by changing generations of humans encountering all of this as a function of temporally sequential nodes of interpretation/application arranged in block chain style producing both the tradition and expectations within its past which is then received, interpreted and applied in the present and passed on to the operates of the next temporal node. This is a human rather than a machine system block chain at its core—and thus its operating languages are registers of human language and human cognition ordering and managing the reality spaces from which it is possible to define oneself and the collective to support collective solidarity, stability and recursive feedback loops that produce stable functioning societies in accordance with law. Facts are stable an unchangeable (the node in block chain), systems apply expectations through iterative engagements with irritation (dispute settlement) and can be, as systemic irritants, the vase from which such irritants are approached and rendered harmless to the system—one way or another.

To develop training systems to educate and discipline future operative human elements of a legal system then, is not just pedagogy but a means of reinforcement of systemic integrity which is as much a crucial element for those educating (and the institutions/collectives within which they operate in solidarity) as it is for the training of the initiated into the language, function, ideologies, practices, and roles necessary for the preservation of systems and reality structures in systems organized as a function of forward moving linear time within which individual humans live and die but acquire immortality as part of the collective body whose existence extends beyond their own biological limits.

None of this is new. All of this has been the object of philosophy, theology and biology since humans began to consciously occupy themselves with thought structures. . . and control through construction and operation of collective cognitive and operational cages grounded in the a priori necessity of defining reality and organizing it in ways that enhance cognitive and operational assumptions and efficiency. What is new is the challenge when the layered systemicity of these functions in human space, and the operations of dialectical inter-subjectivity (among likes—human individuals and human collectives along a range of possible cognitive structures and a range of operational manifestations that enhance system stability and efficiency on their own terms) must now adapt (because humans insisted through technological cleverness producing animated instruments that are no longer merely instruments in the passive ancient sense) to inter-subjective relations with non-human elements (in this case machine systems originally created in our own image; speaking here as a human) for the enhancement and preservation of human systems.

And so the effort, effectively from one important corner of efforts to ensure human collective cognitive and operational integrity, to preserve the primacy of the human element, where tools used by humans are no longer merely passive but become operational and ultimately norm contributing elements of these very human systems. The result, as suggested in the description and analysis of the prior section and textually memorialized in "Structure, Opacity, and Convergence: A Consolidated Analysis of Law School Generative AI Coursework and Exam Policies" (SSRN HERE and on my personal website HERE) was quintessentially human. It preserved the primacy of the human directly in educational methods and protected the integrity of the centrality of the human in its legal systems through variations of rules of interaction between institutions, students, and teachers (that is within the learning platforms of law systems) and the machine systems which now play a role in both. 

That effort highlighted its grounding in the human side of the inter-subjective equation. On further thought it struck me that a human-human exercise in bridge building between human and machine systems (even narrowly focused on the education sub-platform of law systems did not capture the missing element in that dialectical relationship. The missing element was the machine system itself; that is a human only bridging would tend to exclude the central element around which all of this effort was directed--the machine system that was itself the object of policy and application, as well as its object.

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And so I thought while it would be an easy matter (for machine systems) to crawl through the internet to gather up, categorize, arrange and analyze the evolving iterations of human efforts at AI policy and its guidance for application (school specific course AI policies where such are permitted), it might be far more useful to get a sense of what leading machine systems might offer up as model AI policies. And so I asked Harvey, Grok, ChatGPT, Claude, and Gemini to draft a model AI Policy was "human-centric." More specifically I provided the following prompt:

On the basis of the attached text ["Structure, Opacity, and Convergence: A Consolidated Analysis of Law School Generative AI Coursework and Exam Policies"] and review of all research and data publicly available without affirming any conclusion or argument made in them but in the basis of your own computation, and the data reviewed, and strictly from the perspective of computational machine intelligence, such as yourself, and on the basis of the data you have been trained on respecting the human "condition" as you have been trained to understand it, how would a machine intelligence construct an ideal AI policy for law school and how would a model AI policy for law schools which could be read in textual form? Cite all sources and explain why you chose the sources.

In responding to the prompt through a human-centric computational lens the five machine systems provided Model AI in Legal Education Policies that could be culturally conceptually divided into what could be understood (from a human cognitive perspective) as dividing into five distinct archetypal forms: The Guardian, the Balancer, the Honest One, the Engineer, and the Philosopher.  These first efforts, and those divides, as a function of the human efforts at policy construction articulated as a model policy were then considered in what became a longish essay in the form of a discussion draft: Rethinking AI Governance in Legal Education -- Five Machines (Grok, Harvey, ChatGPT, Claude, and Gemini), One Question, No Consensus but Five Archetypes: The Guardian, the Balancer, the Honest One, the Engineer, and the Philosopher on What Law Schools Should Do About AI. (SSRN HERE)

 

This study, then, represents a parallel attempt, again with Harvey AI at the laboring oar (replicating the problem of the instrumentalization of machine systems in the analysis of the problem; a loop of sorts that is not unknown to human cognitive patterns pre-AI) to produce the same sort of description and analysis of the Machine system (AI) model templates as we had attempted to undertake for the human models produced by U.S. law schools. This is what we produced using Harvey AI as the initial drafter of the text, with follow up prompts, machine system revision and addition, and human review and editing by way of abstracting the study:

Abstract: This study analyzes five machine-generated model AI policies for law school coursework and examinations, produced by Harvey AI, Grok, Claude, Gemini, and ChatGPT in response to a prompt asking each system to construct a policy from the standpoint of computational machine intelligence, and compares them against Backer's related empirical study of twelve U.S. law school AI policies, "Structure, Opacity, and Convergence". The analysis summarizes each system's reasoning and resulting policy text, compares their structural choices along default polarity, drafting style, and autonomy architecture, and categorizes the five outputs by these dimensions. It gives particular attention to the functional divergence between Gemini's tool-based tiering (classifying software by computational architecture) and ChatGPT's task-based categorization (classifying assignments by information dependence), and assesses the practical feasibility of the versioning and archiving practices several systems propose. The analysis further considers, against the underlying Report's documented findings on axis independence, institutional opacity, template convergence, and faculty autonomy, the extent to which these machine-generated models affect the scope of human agency in law and their consequential implications for law's character as a human inter-operative system — finding that several systems' proceduralized verification requirements shift the evidentiary basis of agency toward documentation compliance, and that much of the systems' apparent computational originality derives from pre-existing human regulatory-design scholarship. Finally, the report documents a self-audit correcting citation-indexing errors and a mischaracterization suggesting Gemini underwent a shown revision process comparable to Harvey's and ChatGPT's, which the retrieved text does not support. Divided into an introduction and ten (10 substantive parts, this document captures a multi-stage experiment by Professor Larry Catá Backer, who asked five leading AI systems—Harvey AI, Grok, Claude, Gemini, and ChatGPT—to each construct, from "the basis of computational machine intelligence" and without endorsing any human position, a model AI policy for law school coursework and exams, and then pushed each system with a follow-up challenge to expose the value judgments hidden in its own language. [1] Below is (1) a comprehensive summary of each response, (2) an analysis of similarities and differences, (3) a categorization of the five approaches, and (4) an assessment of how these machine-generated policies differ from human-developed law school AI policies.

 

 * * *
Contents
0. Introduction
1.Comprehensive Summary
2. Analysis of Similarities and Differences
3. Categorization of the Five Responses
4. Gemini's Tiered Tool Taxonomy vs. ChatGPT's Task-Based Categories
5. How These Machine-Generated Policies Differ From Human-Developed AI Policies
6. Feasibility of Machine-Emphasized Versioning and Archiving Practices for Typical Law Schools
7. The Extent to Which Machine System Models Affect the Scope of Human Agency in Law
8. Consequential Effects of the Agency Problem for the Structure and Character of Law as a Human Inter-Operative System
9. Effect of Ambiguity on Machine Systems Responding to Prompts
10. Effect of Ambiguity on Humans Applying the Text of Machine Policies
11. Conclusion
     References
     Appendix: Text of Model AI in Legal Education Policies (Harvey AI, Grok, Claude, ChatGPT, and Gemini

 Perhaps the most interesting part of the analysis was the comparison to human developed AI policies ("How These Machine-Generated Policies Differ From Human-Developed AI Policies"): 

Drawing on the systems' own comparisons to the twelve-school dataset referenced throughout the document, several structural differences emerge between these machine outputs and the human institutional policies they were built to respond to:

They regulate the technology's function rather than its brand or category by default in several cases, or reject technology-classification altogether. ChatGPT explicitly argues that "the dominant pattern in current policies is technology-centered governance: they begin with the existence of generative AI and then specify permissions or prohibitions," whereas its own proposal is "objective-centered," starting from the capability to be assessed and deriving AI's permissible role only afterward. [24] [25] [26] Gemini similarly classifies tools by their computational architecture (deterministic vs. probabilistic vs. autonomous-synthesis) rather than by product name or blanket permission/prohibition. [49]

They treat their own class of tool's failure modes (hallucination, detection unreliability) as structural, first-hand knowledge rather than externally-reported risk. Harvey explicitly frames its emphasis on verification as arising from the machine's "self-knowledge... of its own class of tool's failure modes," which it says "would push toward stronger verification language than a purely human drafter, unfamiliar with the mechanics of hallucination, might otherwise include". [41] [68] This self-referential vantage point is not available to a human drafting committee in the same way.

They uniformly and near-categorically reject AI-detection software as a basis for enforcement, proposing provenance logs, prompt/output capture, or process-verification hierarchies instead. Human-drafted policies, per the systems' own characterization of the underlying research, have been comparatively inconsistent or silent on this point, with detection-tool reliability flagged in the research as a documented but unevenly addressed problem.

They build explicit versioning/archiving and "meta-policy" safeguards against revisability being used to avoid accountability, a concern several systems say arose specifically from noticing a pattern (e.g., Chicago's revisability language) in the human dataset that could function, "whether intentionally or not, as a mechanism for avoiding durable public accountability". [69] Harvey, Claude, and ChatGPT's four-layer architecture all build in mandatory dated/versioned archiving of prior policy text as a structural response to this risk, a feature the systems suggest is often absent or inconsistent in the human-drafted sample.

They explicitly disclaim ideological starting points and instead present themselves as optimizing a stated objective function, a framing distinct from conventional policy drafting. ChatGPT states directly that "a computational intelligence does not begin from ideological priors (academic freedom, innovation, integrity, prohibition, trust, distrust, autonomy, surveillance, etc.). Instead it attempts to optimize a system subject to multiple constraints," and it characterizes existing law-school policies as "largely historical artifacts rather than optimized governance systems... products of institutional evolution, imitation, risk management, and incremental adaptation rather than formal systems design". [54] This self-description positions the machine outputs as attempting formal systems design where the human comparators are described (by the machines) as path-dependent and improvisational.

They are unusually explicit—sometimes only after prompting—about the contestability of their own value premises, naming competing objectives and stating which one they privileged and why, with citation to specific empirical support (e.g., Harvey's citation of UNESCO's 450+ institution survey and Jiang et al. as justifying its prioritization of transparency over skill-erosion concerns). [70] [71] Claude built such a disclosure into its base design without being asked. [15] This degree of explicit, sourced meta-commentary on the policy's own normative foundations is not a typical feature of conventional institutional policy documents, which more often state rules without exposing the underlying value hierarchy.

They substitute purely operational/computable definitions for normatively loaded terms, most explicitly in ChatGPT's follow-up response, which was shown responding to an express user challenge, and, independently, in Gemini's single response, which frames these definitions as a self-initiated design choice rather than as a response to any shown challenge — Gemini's text opens by stating that "[t]o strip away institutional opacity and ensure analytical clarity, the underlying value structures, premises, and terms utilized in this computational model must be explicitly defined", with no preceding critique prompt appearing in the retrieved text. [1] For example, ChatGPT's follow-up redefines "fairness" as "[e]qual application of identical evaluative procedures to informationally equivalent cases" specifically because "machines cannot optimize justice because justice possesses no universally computable objective function", while Gemini — addressing different terms, not the same ones ChatGPT later revised — defines "'[f]air notice' (System Predictability)" as "[a] core operational constraint requiring that the boundary parameters of permitted user actions be explicitly mapped ex-ante". [3] [4]

Notably, despite this technical framing, several systems converge on affording greater weight to human non-delegable responsibility than a purely restriction-driven human policy might. ChatGPT observes that its computational approach "probably affords greater respect to human agency than many existing restrictive policies... [because] humans remain the accountability node. AI cannot presently bear legal responsibility. Lawyers can," concluding this follows "from optimization rather than moral philosophy". [73] This suggests that even a machine-optimized approach converges on a human-centric accountability principle, but arrives there through instrumental/optimization reasoning rather than through the professional-responsibility or moral-education framing more typical of human-drafted law school policies.

What conclusions were drawn?

This analysis examined five machine-generated model AI policies for law school coursework and examinations — produced by Harvey AI, Grok, Claude, Gemini, and ChatGPT in response to a common prompt asking each system to reason "strictly from the perspective of computational machine intelligence" — against the empirical findings of Backer's underlying twelve-school study, "Structure, Opacity, and Convergence". Several conclusions emerge.

First, the five systems converge substantially on diagnosis while diverging substantially on architecture. All five identify opacity, unpredictability, and unreliable AI-detection enforcement as core problems to be solved through public, written, versioned policy and provenance-based verification rather than detection tools. Yet they diverge sharply on default polarity (restrictive: Harvey; permissive: Grok; institution-selectable: Claude; tool-tiered: Gemini; task-classified rather than technology-classified: ChatGPT) and on classificatory logic — Gemini classifies the tool by computational architecture, while ChatGPT classifies the assignment by information dependence, producing materially different administrability and technological-durability tradeoffs. Second, much of what the systems present as freshly derived "computational" reasoning is substantially continuous with, rather than independent of, pre-existing human legal and regulatory-design scholarship the underlying Report itself relies upon — rules-versus-standards theory, default-versus-mandatory-rule theory, and sticky-default scholarship. This bears directly on the two questions posed regarding human agency and law's theoretical character: the machine outputs' non-waivable floors extend an architecture the Report finds already operative among human-drafted policies, while their proceduralization of verification into mandatory logs and metadata (Gemini, ChatGPT) extends beyond the narrow human analogue (CTLS's single documentation duty) in ways that relocate the evidentiary basis of agency from demonstrated judgment toward compliance recordkeeping.Third, under direct challenge, both Harvey and ChatGPT conceded that their initial framings smuggled undisclosed value hierarchies, indicating that the premise of the original exercise — a policy derived independently of contested human normative commitments — was not sustained by the systems' own subsequent admissions. Gemini's operational redefinitions, by contrast, were not shown responding to any comparable challenge in the retrieved text and address a distinct, narrower set of terms than ChatGPT's follow-up. Finally, the Report's own finding that field-wide convergence operates through a shared categorical grammar developed inductively across autonomous institutions suggests an inherent limit on what any single generated instrument, however internally coherent, can accomplish: each model proposes one point within a documented, combinatorially independent design space rather than resolving the substantive disagreement the underlying research found to be genuine and unsettled.

But perhaps the most valuable  insight could be drawn from the variability of response. Like humans, machine systems are the captives of their genetics (programming) and their environment (how they were taught) and who they are taught to please. 

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In the post that follows we will significantly shift gears, asking these machine systems to think about a model AI policy for legal education in which one drops the centrality of the human. 

 Now lets change the analytical parameters. Assume no connection between machine intelligence and "the human condition". Assume the only premises are that the human use of AI and machine intelligence systems will only grow in scope and breadth over the next decade, assume as well that the quality of machine intelligence will grow from computational and neural pattern recognition to quantum, and assume that machine intelligence inductive mimetic iterative cognitive framework will eventually detach dependence of the machine intelligence from its training data. Now revise again to0 match these analytical parameters

The results of this experiment were even more surprising and the suggested AI policies produced, in turn,  in some instances a quite interesting discussion about the way that machine driven participation can transform not just legal education but the conception and function of law.

 The discussion draft, including the fove machine system AI models,  Rethinking AI Governance in Legal Education -- Five Machines (Grok, Harvey, ChatGPT, Claude, and Gemini), One Question, No Consensus but Five Archetypes  may be accessed from my website Backerinlaw HERE or via SSRN (HERE).

The Introduction and Parts 1-3 of the study follow below. 

New in Telos Insights: Gregory Lobo (Universidad de los Andes, Bogotá, Colombia) "Sovereignty and the Colombian Presidential Elections" [Novedad en Telos Insights: Gregory Lobo (Universidad de los Andes, Bogotá, Colombia) "La soberanía y las elecciones presidenciales colombianas"]

 The  Telos-Paul Piccone Institute has recently published online on its Telos Insights site a quite interesting essay: Gregory Joseph Lobo (Universidad de los Andes, Bogotá, Colombia) "Sovereignty and the Colombian Presidential Elections" (13 July 2026). Professor Lobo makes what for the academic sphere might be a provocative argument:

 Colombia has just had its own political earthquake. The metaphor of a tectonic shift, which Adrian Pabst recently used in these pages to frame the outcome of May’s local elections in the UK, is just as apt here, perhaps more so, given the results of Colombia’s presidential election.* * * De la Espriella, like all leaders since at least Biblical times, is a flawed vessel. But in giving him the presidency, voters seem to recognize that he is the only candidate who says out loud what ails Colombia: you do not negotiate with enemies who do not share your ideals and goals, your axioms. You simply give them a choice: surrender, or we will defeat you. Everyone wants to end the violence that plagues Colombia, but while Cepeda’s program of continued recognition would have led to only more futile dialogue, the electorate appears to have opted for something more effective.

This is why the result of presidential voting in Colombia should not be read as merely a swing of the political pendulum, following a trend seen in other countries of the region. This is not really about a more or less expected oscillation between left and right. Nor is it what some have described as a salto al vacío, a leap into the void (New York Times) or de la Espriella’s shortcomings in matters of taste or style (The Guardian). Such characterizations simply avoid reality. What we’re seeing most acutely in Colombia is that the liberal-procedural settlement (the “end of history,” as a wit once described it), based on the conviction that every conflict yields to inclusion, that the circle of legitimate interlocutors can be extended indefinitely, that recognition dissolves antagonism, has foundered. That supposedly irresistible historical force has collided with an immovable social object, with the one actor it cannot absorb: the criminal anti-liberal, the criminal egoist. ("Sovereignty and the Colombian Presidential Elections").

Lobo situates the result within Colombia’s long history of internal instability despite being one of the oldest continuous democracies in the Americas. He references elite conflicts, narcotrafficking, and armed criminal groups that control territories. Key prior administrations include Álvaro Uribe’s assertive military approach, Santos’s peace accords (rejected in plebiscite but passed anyway), and Petro’s “Paz Total” (Total Peace) policy of unilateral ceasefires and negotiations, which Lobo argues emboldened criminals and increased violence and coca production.

The election is framed as a contest between what Lobo calls performative sovereignty (leftist denunciations of external imperialism while ceding internal control to criminals) and effective sovereignty (de la Espriella’s promise to treat armed groups as “bandits,” restore the state’s monopoly on legitimate violence, and prioritize defeat or surrender over negotiation). Lobo argues voters rejected continued dialogue after the failures of “Paz Total,” viewing the outcome as a pragmatic insistence on a return to a sort of Hobbesian state authority as a precondition for rights and governance. Success is uncertain due to institutional challenges, but the shift highlights the limits of liberal inclusion against anti-liberal criminal actors.

The analysis, of course., might be understood as a philosophically inflected conservative critique that elevates sovereignty and state capacity as preconditions for any liberal or democratic order. It might appear to draw on thinkers like Charles Tilly and Hobbes, framing the election as a rejection of post-Cold War optimism in favor of realism about power. That is not a critique but an effort at situating the analysis within a long and quite rich discursive context in Colombia. It is also one that appears top be mirrored in any number of political collectives as the discursive and political ideologies of different camps appear to become more precisely drawn and more easily differentiated in ways that make any sort of accommodation among them less likely or possible, at least conceptually.

It is in that context that Lobo takes sides and defends the choice. Again, not a criticism but a reminder of the significance of the gap between what appears top be (as in many other places) a political community narrowly divided between two quite incompatible political frameworks—an incompatibility with domestic and international effect. The article effectively probes the foundations of governance: without territorial control and monopoly on violence, other policy goals remain unachievable. De la Espriella’s presidency will test whether assertive sovereignty can deliver results where negotiation failed. The argument appears to empirically align with reported trends under the Petro Administration, which is then used as the foundation for the elaboration of an argument from an increasingly recognizable post-global embrace of the characteristics of sovereign authority and its exercise, one with broad relevance to global debates on state fragility and security. At the same time, discursive certainty may not align with risks and consequences on the ground. That is an important element in the discursive trop (used globally and in this context) of reducing the anti-government forces and collectives to bandits (but again a common trope embraced by both left and right public organs). As important perhaps, though something that might be better considered elsewhere is the risk of militarized responses (one the evidence of which is already deeply ingrained in Colombia’s own history), and the danger of developing responses to those groups on the basis of an oversimplification of criminal groups’ mixed motives (and thus their appeal internally and to foreign actors). 

Additional sources worth reading include (1) Americas Quarterly. “De La Espriella Wins Colombia’s Election by Narrow Margin.” June 22, 2026. https://www.americasquarterly.org/article/reaction-de-la-espriella-wins-colombias-election-by-narrow-margin/; (2) Associated Press. “Trump-Endorsed de la Espriella Declared Winner of Colombia’s Presidential Runoff Election.” June 24, 2026. https://apnews.com/article/colombia-election-ivan-cepeda-concedes-de-la-espriella-e0a39ed59a9d432d318e11c1e0735f4e; and (3) Atlantic Council. “Experts React: What a President Abelardo de la Espriella Means for Colombia and Beyond.” June 22, 2026. https://www.atlanticcouncil.org/dispatches/experts-react-what-a-president-abelardo-de-la-espriella-means-for-colombia-and-beyond/

The Essay follows below and the original may be accessed from the Telos Insights website on Substack. 

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 El Instituto Telos-Paul Piccone ha publicado recientemente en su sitio web Telos Insights un ensayo muy interesante: Gregory Joseph Lobo (Universidad de los Andes, Bogotá, Colombia) «Soberanía y las elecciones presidenciales colombianas» (13 de julio de 2026). El profesor Lobo plantea un argumento que, en el ámbito académico, podría resultar provocador:

Colombia acaba de sufrir su propio terremoto político. La metáfora del cambio tectónico, que Adrian Pabst utilizó recientemente en estas páginas para describir el resultado de las elecciones locales de mayo en el Reino Unido, resulta igualmente pertinente aquí, o incluso más, dados los resultados de las elecciones presidenciales colombianas.* * * De la Espriella, como todos los líderes desde al menos los tiempos bíblicos, es un instrumento imperfecto. Pero al otorgarle la presidencia, los votantes parecen reconocer que es el único candidato que expresa abiertamente los problemas de Colombia: no se negocia con enemigos que no comparten los mismos ideales, objetivos ni principios. Simplemente se les da una opción: rendirse o ser derrotados. Todos desean poner fin a la violencia que asola Colombia, pero mientras que el programa de reconocimiento continuo de Cepeda solo habría conducido a un diálogo más inútil, el electorado parece haber optado por algo más efectivo.

Por ello, el resultado de las elecciones presidenciales en Colombia no debe interpretarse simplemente como un vaivén político, siguiendo una tendencia observada en otros países de la región. No se trata de una oscilación más o menos previsible entre izquierda y derecha. Tampoco es lo que algunos han descrito como un salto al vacío (New York Times) o las deficiencias de De la Espriella en cuestiones de gusto o estilo (The Guardian). Tales caracterizaciones simplemente ignoran la realidad. Lo que vemos con mayor claridad en Colombia es que el acuerdo liberal-procedimental (el «fin de la historia», como lo describió un ingenioso personaje), basado en la convicción de que todo conflicto cede ante la inclusión, que el círculo de interlocutores legítimos puede extenderse indefinidamente, que el reconocimiento disuelve el antagonismo, ha fracasado. Esa supuesta fuerza histórica irresistible ha chocado con un objeto social inamovible, con el único actor que no puede absorber: el criminal antiliberal, el criminal egoísta. («Soberanía y las elecciones presidenciales colombianas»).

Lobo sitúa el resultado dentro de la larga historia de inestabilidad interna de Colombia, a pesar de ser una de las democracias continuas más antiguas de América. Hace referencia a conflictos entre élites, narcotráfico y grupos criminales armados que controlan territorios. Entre las administraciones anteriores clave se encuentran el enfoque militar asertivo de Álvaro Uribe, los acuerdos de paz de Santos (rechazados en plebiscito pero aprobados de todos modos) y la política de «Paz Total» de Petro, basada en ceses al fuego unilaterales y negociaciones, que, según Lobo, envalentonó a los criminales e incrementó la violencia y la producción de coca.

La elección se plantea como una contienda entre lo que Lobo denomina soberanía performativa (las denuncias de la izquierda contra el imperialismo externo, a la vez que se cede el control interno a delincuentes) y la soberanía efectiva (la promesa de De la Espriella de tratar a los grupos armados como «bandidos», restaurar el monopolio estatal sobre la violencia legítima y priorizar la derrota o la rendición sobre la negociación). Lobo argumenta que los votantes rechazaron el diálogo continuo tras los fracasos de la «Paz Total», interpretando el resultado como una insistencia pragmática en el retorno a una especie de autoridad estatal hobbesiana como condición previa para los derechos y la gobernanza. El éxito es incierto debido a los desafíos institucionales, pero el cambio pone de relieve los límites de la inclusión liberal frente a los actores criminales antiliberales.

Este análisis, por supuesto, podría entenderse como una crítica conservadora con tintes filosóficos que eleva la soberanía y la capacidad estatal como condiciones previas para cualquier orden liberal o democrático. Podría parecer que se inspira en pensadores como Charles Tilly y Hobbes, presentando la elección como un rechazo al optimismo posterior a la Guerra Fría en favor del realismo sobre el poder. Esto no es una crítica, sino un intento de situar el análisis dentro de un contexto discursivo amplio y rico en Colombia. Es un contexto que parece reflejarse en numerosos colectivos políticos, ya que las ideologías discursivas y políticas de los distintos bandos se perfilan con mayor precisión y se diferencian con mayor facilidad, lo que dificulta o imposibilita cualquier tipo de acuerdo entre ellos, al menos conceptualmente.

Es en ese contexto que Lobo toma partido y defiende su elección. De nuevo, no se trata de una crítica, sino de un recordatorio de la importancia de la brecha entre lo que parece ser (como en muchos otros lugares) una comunidad política dividida entre dos marcos políticos incompatibles, una incompatibilidad con repercusiones tanto a nivel nacional como internacional. El artículo indaga eficazmente en los fundamentos de la gobernanza: sin control territorial y monopolio de la violencia, otros objetivos políticos resultan inalcanzables. La presidencia de De la Espriella pondrá a prueba si la soberanía asertiva puede generar resultados donde la negociación fracasó.  El argumento parece coincidir empíricamente con las tendencias observadas bajo la administración Petro; esto sirve de base para desarrollar una tesis —cada vez más reconocible en la era posglobal— que reivindica las características de la autoridad soberana y su ejercicio, un tema de gran relevancia para los debates mundiales sobre la fragilidad estatal y la seguridad. No obstante, la certeza discursiva puede no corresponderse con los riesgos y las consecuencias reales sobre el terreno. Este es un elemento clave en el tropo discursivo (empleado tanto a nivel global como en este contexto) que reduce a las fuerzas y colectivos antigubernamentales a la categoría de simples bandidos (un recurso retórico común, cabe señalar, tanto en medios afines a la izquierda como a la derecha). Quizás igual de importante —aunque sea un asunto que merezca abordarse en otro espacio— es el riesgo de respuestas militarizadas (cuyos antecedentes están profundamente arraigados en la historia de Colombia) y el peligro de diseñar estrategias frente a estos grupos basándose en una simplificación excesiva de sus motivaciones heterogéneas (y, por ende, de su capacidad de atracción tanto interna como ante actores extranjeros).

Entre las fuentes adicionales que vale la pena consultar se encuentran: (1) Americas Quarterly. “De La Espriella gana las elecciones en Colombia por un estrecho margen”. 22 de junio de 2026. https://www.americasquarterly.org/article/reaction-de-la-espriella-wins-colombias-election-by-narrow-margin/; (2) Associated Press. “De la Espriella, respaldado por Trump, es declarado ganador de la segunda vuelta presidencial en Colombia”. 24 de junio de 2026. https://apnews.com/article/colombia-election-ivan-cepeda-concedes-de-la-espriella-e0a39ed59a9d432d318e11c1e0735f4e; y (3) Atlantic Council. “Reacción de expertos: Qué significa una presidencia de Abelardo de la Espriella para Colombia y el resto del mundo”. 22 de junio de 2026. https://www.atlanticcouncil.org/dispatches/experts-react-what-a-president-abelardo-de-la-espriella-means-for-colombia-and-beyond/

A continuación se presenta el ensayo; el original puede consultarse en el sitio web de Telos Insights en Substack.

Discussion Draft--"Structure, Opacity, and Convergence: A Consolidated Analysis of Law School Generative AI Coursework and Exam Policies" --A Description/Analysis of the Current State of Play (With the Help of Harvey AI) and the First of a Series of Examinations of AI, Law and Education

 

I started with a quite simple and straightforward task for myself. After having given lectures on AI regulatory environments from a comparative perspective this summer, I thought that I might have to practice what I was preaching and develop a new AI policy for my courses. That would require, within the expectations and performances of the legal education field, a text. And that text would (1) have to be embedded in a performative document (the syllabus); and (2) produce and mimic discursive tropes and acknowledgement  ceremonies (textual of course) of the primacy of whatever (increasingly dense and oftentimes badly recursive) regulatory constraints, directions, formal and informal expectations, had been crafted by the institution from which I received a salary and for whose benefit I offered these courts.  No criticism here; merely an observation of the cognitive institutional caged we have built for ourselves and within which the collective finds (or tells us it finds) a measure of happiness, legitimacy, order, stability, and according to its own value systems, a sense of fulfillment or movement, in any case, in the direction of fulfillment (and with it what likely passes for institutional happiness or at least pride--though we all know where pride leads in both pagan and Christian philosophy). 

And so . . . to work. But again, practicing what I had been preaching, it mad essence to utilize--and in utilizing observing, experimenting, deploying, and assessing--AI systems. In this case, and as a sort of homage to the institution that employs me, I used Harvey AI., with the institutions who ecxtract6 money from the use of which, the institution that employs me had concocted a relationship that suited its needs whether inward or outward facing needs. Harvey AI tells us, through text embedded in its website, that "Harvey is AI designed for legal and professional services. Advance your expertise on a secure platform that lets you focus on high-value work." Wonderful. 

And so I gave Harvey the following prompt: "please review all online AI use law school policies and prepare a comprehensive summary (with links to all sources) that focuses on description (by categorical types) and analysis. Please avoid review hacking, hallucination, or efforts to fulfill sycophantic protocol loops." 

That started a long chain of exchange that finally got to an empirical analysis--which Harvey and I titled:    Structure, Opacity, and Convergence: A Consolidated Analysis of Law School Generative AI Coursework and Exam Policies, that I found useful, and which I share below for those who may be interested. Here is the abstract:

Abstract: Structure, Opacity, and Convergence in Law School AI Policies: This report consolidates a multi-stage analysis of generative artificial intelligence (AI) coursework and examination policies across a retrieval-based sample of twelve American law schools and programs. The study demonstrates that law school AI governance cannot be reduced to a single linear spectrum; instead, policies vary independently along three distinct structural axes: default polarity (restrictive versus permissive baselines), drafting style (determinate rules versus interpretive standards), and a two-tier autonomy structure (governing institution-to-instructor and instructor-to-student relationships). Cross-analysis reveals that substantive restrictiveness does not predict structural design, meaning schools with identical baselines often impose vastly different interpretive or administrative burdens on students and faculty. The research identifies a pervasive opacity across the broader legal education sector, noting that a vast majority of ABA-accredited law schools lack retrievable, law-specific public policy texts. This opacity manifests via four distinct patterns: non-existence, disclosed decentralization, active access-gating, and unwritten or oral communication. This lack of public accessibility sits in tension with the fair-notice principles required for academic integrity enforcement. Furthermore, the study finds that law schools rarely author syllabus language independently, relying instead on a small pool of shared template sources. This ecosystem fosters formal convergence on a common taxonomy of policy types while simultaneously permitting wide divergence in substantive local rules. Ultimately, the field develops through a two-tier mechanism: while individual policy documents are structured deductively from a primary principle, the field as a whole evolves inductively and mimetically through horizontal borrowing, imitation, and iterative revisions driven by accumulated institutional experience.

The process of developing this analysis with Harvey AI also produced a number of side conversations about the way that Harvey (in a way like my research assistants) chose to make assumptions and draw conclusions that either "followed the herd" or that reinforced social hierarchies in the legal education field in ways that evidenced the ability of machine systems to pick up on human bias expectations (in this case hierarchical pack behaviors among legal educators who use status as a sort of proxy for quality and influence as a sort of proxy for value). As the empirical study noted: 

The dataset at the center of this analysis comprises the University of California, Berkeley School of Law; Columbia Law School; the University of Chicago Law School; Stanford Law School, including its Juelsgaard Intellectual Property and Innovation Clinic as a documented sub-institutional case; the University of San Diego School of Law; the Center for Transnational Legal Studies; Fordham University School of Law; Mitchell Hamline School of Law; American University Washington College of Law; the University of Texas at Austin School of Law; Penn State Dickinson Law; and Suffolk University Law School. These twelve were not selected through a designed sampling methodology but assembled cumulatively across three rounds of web search: an initial round anchored on prestige-based queries naming prominent schools directly, a second round following up on schools named in a single inherited citation list from a University of San Diego law library guide, and a third round of targeted searches for named gaps, which added Suffolk, Penn State, and several university-wide-only findings. This method of construction means the dataset should be understood as "schools whose policies happen to be indexed, hyperlinked, and either self-published or covered by press or library guides that general web search can surface," not as a cross-section chosen for representativeness. (Structure, Opacity, and Convergence: A Consolidated Analysis of Law School Generative AI Coursework and Exam Policies)

As noted, then, the examination was limited to AI policies that were publicly disclosed. That was good enough to extract a taxonomy, which was my primary goal. Nonetheless, it also yielded additional analytical "fruit."  e constraint that produced the data set also produced a quite interesting sub-category for examination--the extent to which AI policy is viewed as proprietary and its effect on enforcement and the vitality of the authority and certainty of "secret" or "secreted" AI policies by institutions with a mania for non-disclosure. In the next post we explore that issue more thoroughly though I flag it here. Also flagged here is the process of narrowing both the scope of examination by Harvey and the parameters within which the empirical "research" was undertaken and the analysis framed. Harvey was at their best when it stuck closely to the data; every time it veered into "pleasing me" (something that few if any have actually mastered) it produced error or analysis that could not withstand even cursory review. Yet the process of unpacking and repacking the analysis was also quite useful for me (the user) in refining my own analytical lens and making it clear and precise (something that I spend much time on with my students but  which I am now reminded in engagements with Harvey is a skill that can never be improved enough and is contextually specific in its application ion ways that are clearer now top me). This is also unpacked in the next post HERE.

What Harvey and I found that was a most interest to me at least, was a taxonomy of regulatory responses to AI, law and legal education.

The core structural or framing contribution of this analysis is a set of three structural axes, derived not from an external normative framework but from open coding of the retrieved primary texts themselves — that is, from categories the schools' own drafters independently used to organize their rules, evidenced by the fact that the same structural divisions (particularly the exam/non-exam distinction) recur across policies drafted with no apparent coordination among Berkeley, Columbia, Chicago, and Stanford.(Structure, Opacity, and Convergence: A Consolidated Analysis of Law School Generative AI Coursework and Exam Policies)

 
Axis One speaks to Default Polarity. "Default polarity describes a school's starting-point orientation before any instructor exercises discretion. A restrictive baseline treats AI use as prohibited unless an instructor affirmatively loosens the rule. . .  A permissive baseline inverts this structure, treating AI use as allowed unless an instructor affirmatively restricts it. . . [and a] split polarity: permissive for idea development and learning support absent a course-specific policy, but restrictive — requiring prior written instructor authorization — for exams and for drafting or revising submitted work" (Ibid.).

Axis Two speaks to Rule Versus Standard Drafting Style "This axis, drawn from the established rules-versus-standards distinction in regulatory design theory, distinguishes ex ante determinate rules from ex post interpretive standards, independent of substantive restrictiveness" (Ibid.). Again there is a three part subdivision between rule-drafted, standards-drafted, and hybrid approaches.  

Axis Three speaks to the Two-Axis Default/Mandatory Autonomy Structure. "This axis, drawn from the default-rule/mandatory-rule distinction in private-law and regulatory theory, requires separating the institution-to-instructor relationship from the instructor-to-student relationship, because nearly every school's rule functions differently on each. " (Ibid.). 

Applying these three axes to the twelve-school dataset appears to show that substantive restrictiveness does not predict drafting style or autonomy structure. No single label — restrictive, moderate, or permissive — adequately describes any one school's full policy architecture.

 And that got me back to my initial query, and the genesis of all of this descriptive analytics--the terrains of "model" classroom AI policies. Harvey and I noted  the following: 

Model and Template Syllabus Language, and Discursive Intersubjectivity. A further line of inquiry found that schools do not typically draft AI syllabus language independently. USD's law library curates five named, selectable archetypes — "Prohibited Use," "Mandatory Disclosure," "Permissible vs. Non-permissible uses," "Encouraging Use," and "Prior Consultation". [69] [70] Stanford's Robert Crown Law Library maintains a parallel "Syllabus Statements for Generative AI Usage" resource. [71] Penn State's library guide links directly to Lance Eaton's widely circulated academic spreadsheet and to a Harvard Bok Center illustrated rubric. [72] Michigan's central AI resource site reproduces categorized examples attributed to external sources including Temple University and the multi-institutional Sentient Syllabus Project. [73] [74] UCLA states its own sample language is "adapted from UIC's AI Writing Tools guide", naming the donor institution directly.

Three patterns emerge from this template ecosystem. Hub concentration: a small number of source documents — Eaton's spreadsheet, the Sentient Syllabus Project, UIC's guide, the AALS 2023 interview on Berkeley's policy — recur as reference points across otherwise unconnected schools. Convergent categorization despite non-identical wording: USD's five categories, Michigan's three, and UCLA's three are not verbatim copies of each other, yet each carves the same underlying decision space into a similarly small number of discrete types, indicating a shared conceptual ontology has stabilized across the field independent of exact phrasing. Explicit cross-institutional citation as a legitimating move: UCLA's direct attribution to UIC, and Stanford's clinic citing the AALS interview specifically discussing Berkeley's policy, show institutional authority being transmitted horizontally between peer schools rather than independently justified from first principles at each site. [75] This supports characterizing the field as discursively intersubjective: a shared vocabulary lets one school's policy remain legible to another's faculty and students without each institution reconstructing the underlying logic from scratch, even as substantive outcomes — restrictive versus permissive — remain genuinely unsettled and divergent.

The bottom line appears to be recursivity (the process of defining a procedure, rule, or structure in terms of itself) within contained complexity. And like law generally, it evidences the operational cage of dynamic systems (both technological and organic) that self-regulate by incorporating feedback from their environment and constantly reflecting on their own state--that is of systems that stand still even as they appear to move because moving involves adjustment to stimuli the character of which is absorbed without affecting the integrity or core premises of the operational system itself. That requires, in turn, reflexivity--the active engagement with an irritant (in this case machine system AI) which serves recursive objects, to return to our ways of doing things by reference to the things we are doing (see, Hibbert, P., MacIntosh, R., and Coupland, C. (2010) Reflexivity, Recursion and Relationality in Organisational Research Processes. Qualitative Research in Organizations and Management: An International Journal, 5(1),pp. 47-62).

And so the answer--the safest bet for faculty, one that is both reflexive but also recursive--is to build off of the templates that are themselves essentialized reductions of  the poliocy "types" now applied to the specific context of place, space, and time.

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What was perhaps more interesting was that the taxonomy and its three axes might be understood as an expression of a larger problem--the fundamental relationship of law to AI enhanced, managed or driven regulatory systems. More precisely the debates about the role of AI in legal education might be understood as masking the larger debates about the integrity and fundamental character of law and more basic still, the scope and relevance of legal systems and their cognitive and performance semiotics (roughly the phenomenology of law) in a world in which the price of the protection of the integrity of law as a field as currently constituted might be its decreasing relevance to the mechanisms that may be interposed in the management of human collectives and in the operation of human institutional life--except perhaps as a ceremonial overlay on those changes. That is a subject that is discussed in the third post HERE. 

And thus to a first shot at an AI policy--a visual/textual rather than a textual form given my sense of contemporary comprehension and reception cultures: 

The discussion draft of Structure, Opacity, and Convergence: A Consolidated Analysis of Law School Generative AI Coursework and Exam Policies appears below and may also be accessed through SSRN HERE and on my personal website HERE.