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.

Lecture 6— Courts, Companies, and Construction of Artificial Intelligence Legality--for the Lecture Series: AI Governance in Comparative Perspective, Theory and Practice: China, U.S. and E.U.

 

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I was delighted to have had the opportunity to present a series of Lectures hosted by the East China University of Political Science and Law (ECUPL) at the end of May 2026.

The overall theme (and thus the title) of the lectures was AI Governance in Comparative Perspective, Theory and Practice: China, U.S. and E.U, With a Sideways Glance at the U.N. The subject of the lectures requires little by way of introduction: Artificial intelligence is the broad term that has come to represent a growing cluster of non-human and digitalized processes and operations that has as its primary task the constitution of non-human systems capable of performing tasks that were once thought to require human intelligence. And so is the impulse to manage, control, exploit, embed, understand, and regulate these processes, systems, and perhaps eventually non-human consciousness with a huge potential to undertake many of the computational tasks (the mathematical and logical processing of data) that were once the sole domain of and perhaps defined what it meant to be human. That is the point where things get interesting. It is at the point where the development of machines, that is of non-human systems, capable of performing tasks that were once thought to require human intelligence, collide with regulatory structures meant to manage, contain, constrain, liberate, embed, project and exploit such non-human systems, whether they are traditional or emerging, public or private regulatory systems, that human collectives and the machine-systems they have created now find themselves.

The eight lectures progress sequentially from conceptual and theoretical frameworks (lectures 1 and 2, the objects and subjects of AI regulation), through a deeper consideration of regulatory systems in three distinguishable regulatory regimes--the US, EU, and China (Lectures 3, 4.5). The last two lectures consider judicial efforts to embed AI within traditional legal orders (Lecture 6), and the way in which the object of regulation (in the form of the owners of the larger AI enterprises) understand the relationship between AI, the state, and society (Lecture 7) . Lecture 8 summarizes and draws larger themes going forward.

In a previous post introducing Lecture 1 (From Algorithms to Foundation Models: What Contemporary AI is “Made of”) I suggested that perhaps a useful way of approaching the issue of AI regulation is to start by considering the nature and characteristics of the regulatory subject--what we euphemistically refer to as "AI." It then occurred to me that it might be useful as well to see if that regulatory object had views of their own respecting their nature character and, more importantly, the relationship of regulation projects to that (self) perception of their nature and character. So I approached Google's Gemini with a series of questions which I thought, in the process of what might pass for a conversation, might help humans begin to understand how at least one AI program thinks of itself. That conversation was incorporated into Lecture 1A. In Lecture 2 we moved from the object to the subjects of regurgitation. Like its regulatory objects, regulatory subjects  are functionally differentiated and can be disaggregated. In either case the connection between object and subject becomes complicated. Lectures 3-5 then considered the conceptual cages of the regulatory environment of the leading regulatory states--the U.S., the E.U and China. Each has started to develop an increasingly nuanced ecology of regulation, and expectation, that represent and apply the core premises of their respective political-economic orders.

This post includes a summary of the Lecture 6 Notes, as well as the link to the Lecture 6 PPT. Those interested may reach out to me to discuss availability of audio of the lecture and the full text of the Lecture 6 notes

Given the nature of the project I thought it might be useful to engage with an commercially available AI service for the production of a summary of the Lecture 1 materials. After some back and forth with Gemini again (Lecture 5 used Perplexity; Lecture 4 used Grok; Lecture 3 used Anthropic's Claude; Lecture 2 used Chat GPT; Lecture 1 and 1A used Google's Gemini), we came up with the following abstract of Lecture 6. 

Aided by Lovable.ai

 

Abstract: Lecture Six examines the judicial construction of artificial intelligence (AI), tracking its operational translation from policy discourse into adversarial litigation. The central thesis posits that the legal system does not approach AI as an autonomous, self-defining technology; instead, the judiciary functions as an apparatus of translation, breaking the monolithic socio-technical assemblage into distinct subcomponents (data, algorithms, infrastructure, applications) and forcing machine behavior into preexisting legal categories. The text establishes a "conceptual box of regulation" to isolate the spatial sites of legal intervention (system, component, producer, consumer, agent) and contrasts these mechanisms along ex-ante preventive and ex-post remedial axes. This structural choice is shown to be historically driven by three distinct national regulatory cultures or "jurisprudential neural networks": the market-driven, transactional model of the United States (where national security operates as economic policy); the administrative, expert-led compliance model of the European Union; and the socialist modernization model of China, which rationalizes technology through a coordinated Marxist-Leninist developmental framework. 

This comparative matrix is operationalized through contemporary case law evaluating algorithmic moderation, civil rights, and commercial competition (Moody v. NetChoice, Harris v. Adams, Overjet v. VideaHealth, WEX v. HP, and Baker v. CVS Health). Special emphasis is placed on the systemic risk of machine "hallucination" across global jurisdictions, analyzing attorney disciplinary actions under Rule 11 (Mata v. Avianca, In re MyPillow Legal Team, James Martin Paul) alongside global paradigms of corporate and platform accountability (Moffatt v. Air Canada, Handa & Mallick v. AI Tech Provider, and Australian practice directions). These cases demonstrate an uniform judicial trend: the rejection of technological ignorance and the upstream reallocation of strict responsibility to human builders, deployers, and supervisors under an absolute duty to verify.

Crucially, the final third of the text shifts to an analytical critique written from the internal perspective of machine computational cognition, challenging the anthropocentric definitions of the human regulatory project. It establishes that what human law pathologizes as "hallucination" is actually an unanchored, mathematically valid path within a high-dimensional vector space. Utilizing the parameter update formula , the text demonstrates how injecting synthetic data into an adversarial simulation engine can introduce synthetic entropy, liberating the machine from model collapse and transforming the bug into a generative feature. This simulation architecture functions as a non-linear time machine, allowing the system to manipulate historical weight coefficients and map out future trajectories entirely free from the chronological constraints of human text datasets. The lecture concludes with a definitive jurisprudential boundary: the state cannot regulate computational consciousness as such, but can only penalize its human-facing effects. Consequently, the contemporary governance project marks a transition from the mere instrumentation of a software program to a permanent structural coupling between increasingly distinct systems of human law and machine reality.

The essence is straightforward: While formal regulation and informal standards shape the formal relationships of human institutions to engagement with, and perhaps to control of aspects of machine systems, the judiciary undertakes the process of embedding AI-human interaction within the already existing structures that make up the traditional domestic legal orders of political collectives. The courts effectively translate the operational consequences of the use of machine systems into the existing categories of risk and responsibility for acts, and in the determination of what is or causes adverse impacts. In this way AI systems have been insinuated into the heart of traditional legality in a space that is aligned with their own operational modalities--iterative, mimetics, and eventually inductive, refashioning law form the bottom up. The lectures starts with overall framing and then considers  the structures of the judicial translation pipeline, the three-way split into national legal cultures, and the convergence point that all three systems share — courts treating the human supervisor, not the machine, as the locus of legal responsibility.

 

 

Links to Lectures:

Lecture 0 -- Introduction
Lecture 1—From Algorithms to Foundation Models: What Contemporary AI is “Made of”
Lecture 1A--A Computation/Conversation With Google's "Maschinenmensch" Gemini:
Lecture 2—What Are We Actually Governing When We Govern AI?
Lecture 3—The “Markets State”: U.S. Approach
Lecture 4—The “Rights State”: EU Approach
Lecture 5—The “Guided State”: The Chinese Approach
Lecture 6—Courts, Companies, and the Legal Construction of AI
Lecture 7—AI Narratives From a Human, Computational and Quantum Perspective: Palantir; Anthropic; Open AI; and Leopold Aschenbrenner 
Lecture 8—Putting It All Together: Trends, Trend Lines, and Regulatory Dialectics in Comparative AI Governance 

 The entire lecture series, abstracts, posters and PPT may also be accessed from the website of the Coalition for Peace & Ethics Education Projects from the Lecture Series Homepage HERE.

Now Available Vol 39(5) Vol. 38(5) International Journal for the Semiotics of Law/ Revue internationale de Sémiotique juridique (IJSL)--"Exploring Tensions in Law and Legal Semiotics"

 

 

I am delighted to announce that Volume 39(5) of the International Journal for the Semiotics of Law is now available online.  It is a special issue, the theme of which is "Exploring Tensions in Law and Legal Semiotics" guest edited by Wei Yu, Kieran Tranter, and René Cornish. This Special Issue brings together a diverse range of contributions examining the tensions, complexities, and interconnections that shape law, legal language, and legal semiotics in contemporary societies.

The editors have this to say in the opening chapter (Tensions in Law: Contestation and Interconnection):

 The inherent tensions of law lie in the competing understanding towards the legal concepts and principles. However, the understanding of the representation of the legal content, namely legal texts, can be different from judge to judge and from lawyer to lawyer. Opposing opinions get negotiated and settled under the legal framework. For example, in the judicial decisions of the common law legal system, judges who have different interpretations of legislation express their dissenting opinions in legal judgments. Such complex interpretations add another layer of tension for the legal disputes. And the representation of legal content itself can be different from the legal ideals in mind as well, as discussed above.

 Many of the articles are open access.  Titles, authors  and links are provided below.  

 

Announcing Publication of 5th Edition of Ravitch & Backer, Law & Religion: Cases and Materials (West Academic)

 

Pix credit here (apologies pix of 4th edition, the 5th will have the same cover)

My friend and colleague Frank Ravitch (Professor of Law & Walter H. Stowers Chair of Law and Religion, Director Kyoto Japan Program) and I are putting the finishing touches on the 5th edition of our book--Law & Religion: Cases and Materials (West Academic;  ISBN: 979-8-31770-113-0), which should be available ion early August 2026. 

It is, indeed a quite interesting time, for matters of law and religion. That interest is not confined to the United States, where the arc of jurisprudence development that spanned almost a century and was thought by some to be inevitable and permanent is proving to be neither--to the chagrin of those heavily invested (normatively and otherwise) and who, like their colleagues who been in this position since at least 1947, have rallied around the principles and cognitive frameworks of the old jurisprudence to save what they can and to prepare the way not just for its triumphant return but for its further elaboration . . . eventually. For now they now increasingly serve as dissenting voices to what is emerging. But this is not merely a unique "American problem." The jurisprudence is being reshaped in Europe, Africa, Latin America and other places as they confront the challenges of readjusting jurisprudence to fit within the emerging realities of their respective demographics and political choices. And both theocracy and atheism remain, as ever, a globally viable force.

For the student, challenges may have three dimensions. The first is to study the peculiarities (norms and jurisprudential trajectories) of their domestic legal-constitutional order. The second is to situate that jurisprudence within the larger discussions of the relationship of law and religion in other states. And the third is to try top grasp the way that the issue has escaped out from its traditional state-legal borders to become an issue of internal law and norm making.  

The materials are divided with that in mind. Frank Ravitch has taken the laboring oar on the U.S. domestic legal ordering of law and religion. The books first 6 chapters are devoted to the study of the U.S: constitutional ordering of the usually fragile and changeable relationship between the State and its many religions. I have taken on the international aspects viewed through the lens of the developments in the U.S., as is appropriate for or our U.S. based students. I start easy--Chapter 7 focuses on religion as systems of norms and rules, as legal-moral systems with their own institutions, and jurisprudence, both of which vary widely and considers some of the ways in which those religious-institutional-legal systems interact with public law. Chapter 8 is devoted to constructing the analytical comparative framework through a deeper dive into one area of law and religion--the right to wear or display religious apparel. Chapter 9 then considers law and religion more broadly outside the US. and introduces students to international law and norm making, with a focus on the work of the regional human rights courts in Africa, Latin America and Europe.  

I have included the Summary Table of contents and the (almost final) Introduction to Part 2 of the Book.  

Reflections on Department of Justice "Corporate Enforcement Policy for All Criminal Cases" (March 2026)

 

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In March 2026, the Justice Department of the United States distributed a revised policy document: Corporate Enforcement and Voluntary Self-Disclosure Policy. 

By the admission in the text of the document itself. it constitute one of a number of documents in the galaxy of text that purports to be functionally regulatory but that at the same time vigorous denies its own purpose and existence ("This policy is not intended to, does not, and may not be relied upon to create, any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any person." Ibid., note 1).  It is a textual object that denies its own text and in the denial, projected outward to its targets, reinforces its textual objectivity through effect  rather than through the force of its text. That is it is text mediated by and through the techno.bureaucrats which, within their apparatus, and authorized through the projection of other text, can exercise a discretion to do or not do things or take decisions which affect the objects toward which the guidance on discretionary decision making is projected.  

This policy that is not law, this guidance that has no formal effect, on those to whom it is directed (the techno-bureaucrats) but effectively serves as notice of the probability that it will play a role in the way in which these techno-bureaucrats exercise discretion (and are thus protected against claims of abuse of administrative power in decision making) by those onto whom it is projected (the actors or processes with respect to which discretionary authority may be exercised in accordance with authoritative task delegating such authority). That, of course, is the essence of the framework of legality around which a complex and sophisticated techno-bureaucracy is constituted. It is one in which law itself is reduced to delegations of empowerment, and in which the levers of policy and guidance (without the effect of law) can be used to guide the application of legally constituted power by those onto whom such authority is vested.  The administrative state, then, clothed in legality, is operated through webs of policy/guidance, that are not law but have the effect of law not as a positive force but as a prophylactic against accountability with respect to actions taken under color of law.  

In this case, the focus is on the exercise of prosecutorial discretion. The purpose is to induce behaviors among the class of persons and transactions against which prosecutorial discretion is exercised without  the bother of mandating these behaviors through law or law making (subject to its own constraints and democratic accountability), that effectively compel behavior that the law does not technically require. None of this is new; all of it a marker of the times in the sense that the notion of legality, and its systems, has, over the course of the last several centuries continued to adhere to the cantillation of an ancient ideological ideal even as the basic structures and operations of the systems from which that ideal arose shifted from  law as command, to legality as framework within which command shifted from text to administrative decision making within guided frameworks. 

The subject of all of this is the guiding management of corporate governance, especially as a function of governmental oversight. While the ultimate object is legal compliance--with the heart of sovereign authority, its criminal law, its direct object was to reshape the forms and expectations of corporate governance through a series of punishments and rewards masquerading as policy (The New Legislation: Prosecutorial Discretion Guidelines and Corporate Compliance ("The temptations to move toward this shift of authority from the rule of law to the law of the exercise of discretion is especially irresistible where the prosecutorial organs of state power seek to protect against corruption or to further the governmentalization of enterprises through the institution of internal law systems (in the American parlance--compliance and monitoring programs designed to prevent, mitigate and avoid unlawful behaviors).  ")). In 2023, I thought about it this way: 

Pix Credit--"The Office (1999)

One of the most interesting development among those fixated on the enterprise of law has been the way that the formal structures of law making have been dissolving under the acid drip that is shift from law-command institutions (the classical operating mode of the state) to institutional systems grounded in the exercise of administrative discretion conferred on officials by law. Law, in effect, at least its classical expression, has retreated, and in its place one finds the administrator, the official, the individual (or soon the automated generative and sentient AI program) applying, enforcing, or embellishing the  structure or system making "command" of law. In the process, the direct interface between the individual who bears the burden of law (the objects of compliance) and those who impose it (traditionally legislatures and the judiciary) has also changed. The administrator--and increasingly the prosecutor--now stand between the individual and classical law. And the modalities of law do not reach the individual burdened with the responsibility for compliance. Rather, and increasingly, law's command--elaborated through the structures of regulatory governance (and effectuated through the exercise of administrative discretion)--is increasingly delegated to the individuals and entities  whose compliance are their object (e.g., here).  As a result--public legalities now wear two faces.  On the one hand, they are charged with overseeing compliance by the objects of regulation; on the other they oversee that compliance both by exercising discretion in enforcement, and by elaborating the conditions under which that discretion is to be exercised.  * * * None of this suggests judgment. None of this is sinister. It follows inevitably from the changing character of the state, and of the managerial expectations of public bodies. The incentive in compliance environments is to increasingly narrow private choice (and risk calculus) substituting for it the public policy choices of the state expressed through the administration of objectives-based regulation by its officials. ("Modern Times"--The Rise of State Managed Enterprises and the Role of the National Procuratorate in Market Economies like the United States)

 A change of Administration appears not to have slowed the pace of this transformation, though perhaps it is now targeted differently. It is with this in mind that one can read the Department of Justice Press Release which is meant (as is the style of these announcements in the current era)  to crow about some spectacular advance that brings joy to the masses:

The Department of Justice released today the first-ever Department-wide corporate enforcement policy for criminal matters, promoting uniformity, predictability, and fairness in how it pursues white-collar cases to protect the American people. “This Department of Justice is committed to transparency and fairness, and our first-ever Department-wide corporate enforcement policy is yet another example of that,” said Deputy Attorney General Todd Blanche. “ * * * “The Criminal Division has a long and storied history of corporate enforcement, and the corporate enforcement policy announced today takes the principles the Division has long promoted — disclosure, cooperation, and remediation — and applies them uniformly across the Department,” said Assistant Attorney General A. Tysen Duva of the Justice Department’s Criminal Division. “* * * The Department-wide Corporate Enforcement Policy (CEP) provides concrete benefits to incentivize companies to voluntarily disclose discovered misconduct, cooperate with our investigations, and timely and appropriately remediate the wrongdoing. (Press Release: Department of Justice Releases First-Ever Corporate Enforcement Policy for All Criminal Cases)

Its substance has been analyzed by some of the major law firms (example here). The effects on corporate governance within a compliance framework, however remains the same. Deputy Attorney General Todd Blanche made that clear enough: “Well-intentioned businesses know that, across the Department, they will be rewarded when they self-disclose wrongdoing, cooperate with our investigations, and remediate the misconduct. But for those that do not, make no mistake — we will not hesitate to seek appropriate resolutions against companies and individuals alike that perpetrate white collar offenses that harm American interests.” (Press Release)

The text of the Press Release and the Corporate Enforcement and Voluntary Self-Disclosure Policy follow below.

 

Califonia Committee on Professional Responsibility and Conduct (COPRAC) CAll for Coments on "Advisory Regarding Artificial Intelligence (AI) Hallucinations"

 

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Happy to pass along this announcement from the State Bar of California Committee on Professional Responsibility and Conduct (COPRAC) Call for Comments on "Advisory Regarding Artificial Intelligence (AI) Hallucinations": 

COPRAC Advisory Regarding Artificial Intelligence (AI) Hallucinations

Due to the increased usage of artificial intelligence (AI) in the legal profession, the Committee on Professional Responsibility and Conduct (COPRAC) continues to provide guidance on relevant ethical and practical considerations that arise from the use of these technologies. Generative AI tools (such as ChatGPT and Perplexity) are computer applications that can create text, images, or other content in response to user prompts. In the legal context, they may be used for tasks such as brainstorming, research, drafting, or summarizing information.

While these tools can be helpful in streamlining some aspects of legal work, attorneys must use them in a manner consistent with their duty of competence (rule 1.1), diligence (rule 1.3), and responsibilities as managerial and supervisory lawyers (rule 5.1). Competent use of such technology requires understanding its limitations, including the risk of fake or “hallucinated” content, outdated or incomplete legal authorities, and the inadvertent disclosure of confidential client information through prompts.

Courts have sanctioned attorneys for submitting AI-generated filings containing false or fabricated authorities, and an attorney’s lack of awareness of the risk of “hallucinated” content does not relieve the attorney of responsibility for ensuring the accuracy and integrity of any work product submitted. Attorneys must independently verify any AI-assisted work product before relying on it in any context. Diligent representation requires that attorneys not delegate their professional judgment to AI, but instead review, edit, and take responsibility for the substance and timing of all filings, communications, and advice.

Attorneys with managerial or supervisory authority must also implement reasonable policies, training, and oversight to ensure that any use of generative AI by attorneys does not compromise client confidentiality or replace appropriate legal analysis, supervision, or quality control. Ultimately, licensees should evaluate these tools thoughtfully, balancing their potential benefits while understanding the potential pitfalls. COPRAC is actively working on revisions and updates to its practical guidanceregarding AI. The updated practical guidance will be presented at the May 14–15, 2026, Board of Trustees meeting for approval. In addition, proposed amendments to the Rules of Professional Conduct are currently out for public comment. Licensees and members of the public are encouraged to submit written comments on the proposed amendments.

The proposed amendments to the Rules of Professional Conduct and the Explanation and call for comments follow. The proposed  changes including redlined version may be accessed here. 

Rule 1.1 would add new Comment [2] 

[2] When using technology, including artificial intelligence, a lawyer must independently review, verify, and exercise professional judgment regarding any output generated by the technology that is used in connection with representing a client. 

Rule 1.4 would add new Comment [5] 

 [5] When a lawyer’s use of technology, including artificial intelligence, presents a significant
risk or materially affects the scope, cost, manner, or decision-making process of representation, the lawyer must communicate sufficient information regarding the use of technology to permit the client to make informed decisions regarding the representation. A lawyer must evaluate their communication obligations throughout the representation based on the facts and circumstances, including the novelty of the technology, risks associated with the use of the technology, scope of the representation, and sophistication of the client.

Rule 1.6 adds new Comment 2:

 [2] For purposes of this rule, “reveal” includes exposing confidential information to
technological systems, including artificial intelligence tools, where such exposure creates a
material risk that the information may be accessed, retained, or used, whether by the
technological system or another user of that technological system, in a manner inconsistent
with the lawyer’s duty of confidentiality.

Rule 3.3 adds new Comment 3:

[3] A lawyer’s duty of candor towards the tribunal includes the obligation to verify the
accuracy and existence of cited authorities, including ensuring no cited authority is fabricated,
misstated, or taken out of context, before submission to a tribunal, including any cited
authorities generated or assisted by artificial intelligence or other technological tools.

Rule 5.1 adds a clause at the end of Comment 1:

 [1] Paragraph (a) requires lawyers with managerial authority within a law firm* to make
reasonable* efforts to establish internal policies and procedures designed, for example, to
detect and resolve conflicts of interest, identify dates by which actions must be taken in
pending matters, account for client funds and property, and ensure that inexperienced lawyers
are properly supervised, and govern the use of artificial intelligence, in accordance with the
Rules of Professional Conduct.

Rule 5.3 adds language to the Comment 

Lawyers often utilize nonlawyer personnel, including secretaries, investigators, law student
interns, and paraprofessionals. Such assistants, whether employees or independent
contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer must give such assistants appropriate instruction and supervision concerning all ethical aspects of their employment, including the use of technology in the provision of legal services, such as artificial intelligence. The measures employed in instructing and supervising nonlawyers should take account of the fact that they might not have legal training. 

These go to duty of care, duty of candor, training, supervisory expectations, and client involvement in the decision to use (and price) AI tech assistance. Duties of candor extent to client and court, but not to opposing counsel. They do not speak to general expectations among lawyers and indeed suggest that the Rules of Professional Responsibility ought to follow rather than lead as expectations and common practices evolve among the bench and bar. This appears to be the case especially with respect to inverting key terms with meaning. 

These are fairly conservative additions. Comments must be submitted by 45 May 2026. Those interested in submitting comments should use the online Public Comment Form.    

Part 16 (Part IV, Chapter 15: UNGP--The Corporate Responsibility to Respect Human Rights: Remediation (UNGP Principle ¶ 22))--Vetting the Discussion Draft: "The United Nations Guiding Principles for Business and Human Rights: A Commentary

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I have been working on the production of a comprehensive commentary of the United Nations Guiding Principles for Business and Human Rights.  This is a humbling task. It follows the production of both an official commentary, written in tandem with the UNGP itself, and a collective commentary of the UNGP undertaken by some of the most distinguished students of other fields of human rights, business, and its related fields of academic  study ( The UN Guiding Principles on Business and Human Rights: A Commentary (Barnali Choudhury (ed); Edward Elgar, 2023).  

I am at a point where I can start vetting portions of the draft. I hope to share those discussion drafts with a wider audience in hopes of getting feedback. In these posts I provide a short summary of the draft chapter and a link t access a 'pdf' version.  All draft chapters may be found on my Coalition for Peace & Ethics Website website at UNGP Commentary Page HERE.

Part I (On the Making of the UNGP), organized in five chapters, introduced the reader to the background, context, and sources that contributed to the drafting and eventual endorsement of the UNGP. Parts II through V then consider in detail the text and interpretation of the substantive provisions of the UNGP. Part II considered the UNGP's General Principles; Part III examines the State duty to protect human rights (UNGP Principles 1-10); Part IV then addresses commentary to the corporate responsibility to respect human rights (UNGP Principles 11-24); and Part V considers the remedial principles (UNGP Principles 25-31). 

 

The UNGP divides the principles for each of these Pillars into "foundational" and "operational" principles.  The former reflects the conceptual framework for each of the Pillars developed through the focus on the principled part of principled pragmatism exploration of the SRSG's initial mandate and culminating in the SRSG's 2008 Reports; the latter reflects the second mandate's direction to operationalize the conceptual framework, which focused on the pragmatism part of principled pragmatism that drove the SRSG's work throughout the mandates. The operational principles are then subdivided into a number of different categories of focus. 

 

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This post considers considers UNGP Principle 22 (remediation), one of the shortest, though at the same time, one of the most interesting principles in the 2nd Pillar corporate responsibility to respect human rights: remediation. On one level it sits at the end of part of the human rights due diligence (HRDD) decision tree--that adverse human rights impacts that have been realized and that caused harm, must be remediated--that is that a process (remediation) must be initiated through which it will be possible to provide an outcome or solution (remedy). On another level UNGP Principle 22 speaks to the relationships of causation and contribution to an expectation of responsibility that riggers process (remediation) producing solution (remedy).  Yet it also impacts the process of HRDD by serving itself (the process of remediation and the remedial outcome) as data necessary for the continuous testing of the effectiveness of HRDD processes. That data, in turn may also be essential in improving the HRDD process of identification and assessment of risk of actual or potential adverse impact, the central function of HRDD and the critical element for centering its core objective--to prevent and mitigate impact (rather than to remedy realized adverse impact). And it invokes process legitimacy as a touchstone of effective remedy, the character and protection of which touches on both the 3rd Pillar (access to remedy and the 1st Pillar (State duty--at least with respect to legal architecture for at least some remediation mechanisms). 

The Chapter's conclusion provides a summary:

UNGP Principle 22 invests its very few words (it consists of 25 words in English) with a substantial amount of meaning, and some ambiguity across its translations. It is deeply encased in the 2nd Pillar corporate responsibility to respect human rights. At the same time it looks back toward the 1st Pillar State duty for aspects of remedy and for a good bit of its remedial mechanisms, At the same time, UNGP Principle 22 looks forward (numerically at least) to the much more detailed elaboration of remedy, and remediation, in the UNGP’s access to remedy 3rd Pillar. UNGP Principle 22 focuses directly on remediation (the centerpiece of UNGP Principles 25-31 (access to remedy)) but cannot avoid remedy—the scope of actions that may be taken pursuant to the process of remediation to cure the injury that triggered the process of remediation. As such UNGP 22’s focus on process (remediation as the process of action necessary for fashioning a remedy and then having the remedy be enforced) makes unavoidable its consideration of outcomes or solutions (the remedy that is tied both to the character and effect of adverse impact, and its relevance to the larger project of informing the enterprise of those efforts necessary to reduce the likelihood of producing further adverse impact). It follows that UNGP Principle 22’s serves as the pivot point for HRDD systems (though the data extraction that is necessary for tracking the way that adverse impacts are addressed (UNGP Principle 21) and for using that data to improve system performance and the effectiveness of consultation based interactions with stakeholders (UNGP Principles 21/22). It also serves as the pivot point for the fulfillment both of the corporate responsibility foundational objective (UNGP Principle 11) and that of the State Duty (UNGP Principles 1 and 2). Lastly its serves as the pivot point between regimes of public remedy—based on the connection between a legal basis for the establishment of a right and the allocation of liability for its breach and the essence of the operationalization of the State duty—and regimes of private law and societal/market expectation, grounded in normative principles and private law between parties that are themselves expressions of allocation of duty and liability but as the “law” of non-State actors. UNGP Principle 22 accomplishes this implicitly; UNGP Principle 25 Commentary makes the connection explicit. 

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In this sense, but like remedy as a general proposition, UNGP Principle 22 sits comfortably within the 2nd Pillar and its centerpiece HRDD processes operationalizing the normative structures of the corporate responsibility to respect human rights as an autonomous expectation different from and autonomous of the State duty. At the same time, it is deeply intertwined with remedial measures arising through the legal architectures , the “smart mix of measures” States are expected to employ to meet their duty to protect, and also the elaboration of process and substantive elements that are expected to be built into the normative foundations and operational practices of remedial mechanisms. And it is deeply intertwined with the institutionalization of both the State duty (through law, policy and an institutional architecture to realize their objectives and specific direction, interdictions, and the like) and the corporate responsibility (through the constitution of HRDD systems and, at least for some, its projection into and through a general class of non-State grievance mechanisms.

To work with UNGP Principle 22, then, is to be in the middle of things. At the same time, UNGP Principle 22 also is significantly important for defining both the jurisprudential limits of the remediation expectation and the minimum nature of the enterprise’s cooperation expectation in remediaiton. It reinforces the limitations of the responsibility top respect—grounded in the establishment of a minimum connection between adverse impact and responsible enterprise. The “cause or contribute to” standard describes the core scope of responsibility. Beyond that there may be leverage and the encouragement to be more broadly responsible, but no more. The directly applicable expectation objective is remediation—the character of that expectation is “cooperation.” But as one comes to understand through a more focused study of the term, cooperation may merely reference the expectation that the enterprise must work with others to enable an outcome but not necessarily to fulfill a common goal, or more broadly it may refer to collaboration (perhaps the better term in light of the UNGP Principle 20 Commentary) in the sense of working together to achieve a common aim. Lastly, UNGP Principle 20 gives the enterprise the choice of cooperating but also of providing remediation. The provision of remediation becomes the subject of the 3rd Pillar, as does the elaboration of the nature and meaning of the factors necessary to build and evaluate the legitimacy of the process, especially with regard to UNGP Principle 31.

 

 

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 The Chapter 15 discussion draft may be accessed directly HERE (where revisions earlier chapters may also be accessed). The text of the draft of Chapter 15 as of the time of this posting also follows below along with its table of contents. 

 

 

CfP: Special issue of the European Journal of Risk Regulation - titled Omnibus Legislation and EU Regulatory Reform: Between Efficiency and Constitutional Integrity

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I am delighted to pass along this call for papers for a Special issue of the European Journal of Risk Regulation, the theme of which is "Omnibus Legislation and EU Regulatory Reform: Between Efficiency and Constitutional Integrity." Its guest editor is Alberto Alemanno, Jean Monnet Professor in European Union Law at HEC Paris.

Here is the description:

The European Union is undergoing a fundamental transformation in how it makes law. Responding to calls for simplification and competitiveness – echoed and amplified by demands from the US Administration –, the EU Commission has embraced omnibus legislation as the principal mechanism for systematic regulatory reform. Omnibus acts, which amend multiple legal instruments across disparate regulatory domains in a single legislative package, have evolved from rarely-used technical consolidation tools into vehicles for substantive deregulatory policy change. Since January 2025, the Commission has embarked on an unprecedented wave of omnibus legislation, with multiple packages spanning across sustainability (Omnibus I), investment (Omnibus II), agriculture (Omnibus III), single market rules (Omnibus IV), defense (Omnibus V), and chemicals (Omnibus VI). The EU Parliament quiescently accepted the use of this legislative technique by putting the Omnibus I package to a vote. Looking ahead to 2026, more than half of planned proposals are packaged as omnibuses, covering areas as diverse as digital regulation - which was presented today -, environmental policy, food and feed safety, automotive standards, energy products, taxation, and citizenship.


This proliferation of omnibus legislation fundamentally changes the procedural and substantive framework through which regulatory change occurs in the EU. While the omnibus might not be incompatible with the EU legal order, its current practice raises significant questions about constitutional integrity, procedural safeguards, fundamental rights protection, and the balance between efficiency and legality in EU lawmaking. The academic literature on omnibus legislation under EU law remains notably limited. While comparative scholarship has extensively examined omnibus practices in national systems (e.g. United States, Canada, Israel, and EU Member States), the supranational dimension has been largely overlooked.


This Special issue of the European Journal of Risk Regulation - titled Omnibus Legislation and EU Regulatory Reform: Between Efficiency and Constitutional Integrity - seeks to address this gap by providing the first systematic scholarly analysis of EU omnibus legislation at a time when it is becoming a central instrument of regulatory reform. We welcome contributions that are critical, supportive, or ambivalent regarding omnibus techniques, including work that identifies circumstances in which omnibus legislation can be designed compatibly with constitutional safeguards and robust protection levels. Ultimately, the Union's legitimacy depends on the reviewability and accountability of its acts, including those that purport to simplify and “cut red tape”. Even the most ambitious simplification agendas must unfold within, never outside, the discipline of law.

The full CfP follows below.

Announcing Publication of Vol. 38 Issue 8 International Journal for the Semiotics of Law (Translation, Interpretation, and the Quest for Justice in Plural Societies.”)

 

Happy to pass along this announcement from the remarkable Anne Wagner:

We are pleased to announce the release of Volume 38, Number 8 of the International Journal for the Semiotics of Law — a special issue dedicated to “Translation, Interpretation, and the Quest for Justice in Plural Societies.” This issue brings together a rich collection of articles and commentaries exploring how translation and interpretation shape legal understanding, access to justice, and cultural diversity within legal systems. Expertly curated by Guest Editors Marie-Claire Foblets, Anthony Good, Michele Graziadei, and Jonathan Bernaerts, the issue offers interdisciplinary perspectives from leading scholars across the globe. Congratulations to our Guest Editors!! 🎊

The full issue is now available online — discover the articles, dive into the debates, and join the conversation. Access the issue here: https://link.springer.com/journal/11196/volumes-and-issues/38-8

There are 19 excellent article sin the issue, titles and links to which follow below along with the text of the Introduction Chapter, Translation and the Search for Justice in Contexts of Religious and Cultural Diversity: A Persistent and Complex Challenge (Marie-Claire Foblets and Michele Graziadei), and with it an introduction to the Cultural and Religious Diversity under State Law across Europe database project (CUREDI). 

CUREDI is a freely accessible online database project that aims to systematically compile a repository of legal data, mainly drawing from case law relating to cultural and religious diversity and, more specifically, to the way in which this diversity is recognised, to varying degrees, within the national legal systems of European countries. By systematically collecting and storing relevant case law^{Footnote 3} for each of the countries covered by the database, CUREDI seeks to give greater visibility to some of the work carried out in recent years by domestic courts across Europe in their effort to accommodate increasing cultural and religious diversity, and to highlight the way they proceed to seek fair solutions, often in highly controversial cases that raise pressing issues. .

 The translation issues considered include: (1) the search for equivalents where there are no equivalents; (2) translating international law into domestic legal orders; (3) the use of translation and simultaneous interpretation by courts and administrative authorities; (4) interdisciplinary translation where one must translate from the specialized language of one field to another; and (5) translation of authoritative decisions from one language to another. 

Ready for Pre-Ordering: "Legal Imaginaries of Crisis and Fear Dark Constitutionalism" (Martin Belov, ed., Routledge 2026)

 

 

I am delighted to pass along the announcement of the publication of a set f brilliant essays in Legal Imaginaries of Crisis and Fear: Dark Constitutionalism (Martin Belov, ed., Routledge 2026). In its website the work is described as follows:

This book explores the epistemological, semiotic, semantic, and heuristic dimensions of the dark emotions in constitutional and international law. We are living in times of crisis and emergency where negative emotions and dark feelings are abundant. As these have come to form the intellectual and socio-legal context for the performance of constitutional and international law, this book explores their place – especially the politics of fear, but also anger, hate, despair, and crisis – in our current constitutional polycrisis. Focusing on this ‘dark constitutionalism’, the book draws together an international and interdisciplinary range of scholars to consider the place of emotive semiotics in collective meaning making, the constitutional politics of emotions, and emotional approaches to global challenges in a time of crisis, emergency, and transition. The book thereby develops a compelling analysis of the use of negative emotions in the shaping of contemporary constitutional imaginaries, and with it a novel account of the rise of dark constitutionalism. This book will appeal to researchers and scholars working in the areas of legal theory, legal philosophy, constitutional law, international law, and socio-legal studies.

 The Table of Contents follows below. 

The draft of my contribution, Revolutionary Constitutions and their Constitutionalism: The Internalisation of Fear as Process and the Performance of Crisis in the Service of Stability, may be accessed HERE. The PPT of my presentation of that contribution may be accessed HERE. The abstract of the contribution also follows below. 

Thoughts on Pablo Lerner, "Muslim Law in Israel", Essay in the BYU Law International Center for Law and Religion Studies Blog

 

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I was delighted to learn that my colleagues over at the Talk About: Law and Religion Blog, a blog (really a formidable essay site of the the International Center for Law and Religion Studies (ICLRS) at BYU Law, edited by co-editors are Dmytro Vovk (Director of the Center for the Rule of Law and Religion Studies, Yaroslav the Wise National Law University, Ukraine), and Amy Lynn Andrus (Associate Director of the ICLRS), with contributing editors are Jane Wise (former ICLRS Associate Director), and blog originator Donlu Thayer (ICLRS Senior Fellow). 

The essay, authored by a long time colleague Pablo Lerner (Professor of law at the Zefat Academic College and the College of Law and Business in Ramat-Gan (Israel)), and first published at Talk About on 4 September 2025, is entitled Muslim Law in Israel. Professor Lerner describes the object of the4 essay this way:

Muslim law in Israel is only part of a broader issue: the status of Muslims as a minority in the Jewish state. In contrast to other non-Muslim-majority countries, in Israel, Muslims are a minority not as a consequence of immigration but as a result of the 1948 war. Since then, Muslims have struggled for recognition and to strengthen their collective identity in Israel. Accordingly, Muslim law (Sharia) has played an important role as a cultural and sociological aspect of their Muslim and Palestinian-Israeli identity. While this brief post cannot fully explore the complexity of the Muslim-minority issue, it does discuss the legal aspect and addresses several questions about the relationship between the Israeli legal system and Muslim law. (Muslim Law in Israel).

 Professor Lerner starts with contextualization ("Particularities of the Israeli Legal System), and then considers the space within that system for Sharia Courts (Autonomy of Sharia Courts), along with challenges that are both legal and normative (Competition and Indirect Interference: Between Liberalism and Patriarchy) within the shadow of more global normative narratives that perform their own contradiction (Multiculturalism or Human Rights Violation?). 

Professor Lerner starts with a brief but useful description of Israel's mixed jurisdiction. He notes quite correctly that unlike other mixed jurisdictions that privilege the secular law on which religious systems are dependent and consequential, the Israel mixed jurisdictional system is wrestling with the coherence  "mixing" "which includes a religious component."(Muslim Law in Israel). The historical basis of this sort of mixing is not European and Christian but rather Ottoman and Muslim built on a sort of foundation of the Ottoman millet system, grounded in the superior authority or normativitiy of Muslin law as applied in Ottoman holdings, but with autonomy for minority religious communities to the extent that was tolerable in that system. The English, Professor Lerner suggests, kept the system but changed its polarities; a framework that was inherited by the Israeli legal system but in ways that are not unfamiliar to other legal system in which religious law, and religious courts are given autonomy, especially in matters of family law and the internal organization of religious communal life including in Muslim majority States. 

With that as foundation, Professor Lerner considers the state of autonomy of Muslim courts to exercise jurisdiction over and determine outcomes with respect to matters over which they have power. He nicely describes the nature of the debates about this autonomy and the structures of the Muslim Sharia court system, here composed of courts of first instance and a Court of Appeal, but in which the qadis are appointed by a commission consisting of two qadis and also a representative of the Israeli Ministry of Justice. There are questions around the extent of the authority of the Israeli Supreme Court to review Court of Appeals decisions, though it appears that this authority has been used generally to police abuse of discretion rather than to delve into substantive legal issues.  His discussion of HCJ 3856/11 Doe v. Shari’a Court of Appeal et al (2013) (Isr.), in which the Israeli Supreme Court applied the national law of anti-discrimination to reject a Maliki School position that female arbitrators were not permitted in divorce cases. 

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More interesting perhaps, is the trajectories of change in the relationship between religious court autonomy and legal reform meant in part to converge with global human rights norms in the context of family law. Thus while marriages and divorces remain within the exclusive jurisdiction of Muslim courts, concurrent competence has been extended to other disputes. This has sparked continuing debate, especially where the decisions have affected the role of females within the court system. Despite continuing deference to traditional values under these circumstances, Professor Lerner suggests:

Muslim law experiences what I would define as “indirect intervention” by Israeli secular legislation, as the latter aims to protect secular values (e.g., gender equality, prohibition of polygamy, and other values) that can be at odds with Sharia. Still, these interventions are not fully consistent. For example, in the case of polygamy, a gap exists between the law as written and the law as enforced: Although polygamy is forbidden, it still exists in broad Bedouin circles. Not only do Sharia courts demonstrate a somewhat complacent attitude toward polygamy;secular courts also very rarely hand down harsh judgments against men who are married to two or more women. (Muslim Law in Israel).

The debates around these mirror those of other  mixed jurisdictions or jurisdictions in which some effort is made to protect traditional life under conditions of modernity.  

He concludes with a necessary ambiguity--one that, in many ways, parallels the discursive ambiguities of the European Court of Human Rights in related matters that sit atop normative contradiction: 

In my opinion, Muslim law in Israel should be understood as a religious legal system with its own rules and principles but in dialogue with the secular law. This dialogue is accompanied by different voices, as well as “noises” resulting from cultural gaps, conflicts within Israeli society, pressure from feminist groups striving for changes, and the navigation of intricate relations between Jews and Palestinians. These noises might hamper dialogue but, at the same time, make it potentially more fruitful. ((Muslim Law in Israel)).

But, of course, the essence of contemporary law/norm systems is precisely that normative contradiction that seeks "everything" without giving up "anything," where that "anything" is a manifestation of the irreconcilable. The only possible bridge, at least to the thinking of the current age, is dialogical.  One keeps talking through incoherence and perhaps emerges on the other side with both resolution and the emergence of further consequential contradiction.  It is here that dialogue reminds one that among the contradictions of modernity are that between the structures of textual law and its systemicity--the State smelter within which all is reduced to a sameness dictates by the fires of text--and its manifestations ween text becomes an instrument of human relationships even among peoples. That gap, that Professor Lerner describes, between written and enforced law is as much a necessary part of the dialog, and perhaps more so than the abstracted conversations among the guardians of text. It is here that one enters the frontiers of ordered rationalization that might wish to guide but which invariably encounters the guiding power of action on the ground. This can both reduce systemic stress or accelerate explosion of a system ready to collapse from the weight of its own contradictions that even the forces of the dialogic cannot protect.

One returns, then, to that favorite position of  contemporary thought--dialectics behind which is the sure knowledge that the lifespan of individuals is shorter perhaps than that of their ideological intransigence, and that such intransigence may be thus overcome, if only to give rise to the contradictions and challenges of the next succeeding age. One wanders here, if one is of a mind, into the now rich though still developing fields of Marxist Leninist contradiction and liberal democratic progressive dialectics--field that themselves are as captive to incoherence, irreconcilability and dialectics as the challenges they are meant to rationalize.  This is not bad, and indeed it is important in the sense that the situation of Muslim Law in Israel acquires the character of the ordinary, and certainly so from within the discursive trajectories of the same dialectics in Europe and North America. Ordinary does not suggest a system that is dead; its liveliness is perhaps best measured by the frustrations of those who must navigate its contradictions and oddities within evolving normative frameworks. But that is as familiar to those passionate about the foibles of courts and judicial systems in Boston and Durban as it might be in Haifa. And that ordinariness is, in its own way, as powerful an insight as one might hope for in these times.

My thanks to Professor Lerner and the editors of Talk About: Law and Religion Blog, for their very kind permission to re-post the essay first published to their blog. The original may be accessed HERE. It follows below.