Category: News Feeds

Ed.
Note:
Welcome
to
our
daily
feature

Trivia
Question
of
the
Day!

According
to
Vault’s
most
recent
practice
area
rankings,
which
Biglaw
firm
is
best
in
intellectual
property?

Hint:
The
Boston-based
firm
was
founded
in
1848
and
always
had
a
strong
patent
practice.

See
the
answer
on
the
next
page.

Ed
note: This
article
first
appeared
in
Strategies
&
Voices,
a
publication
of
the
Legal
Marketing
Association.

In
an
era
where
artificial
intelligence’s
(AI)
influence
is
proliferating,
many
have
proclaimed
the
obsolescence
of
marketing
agencies
—
or,
at
the
very
least,
the
death
of
certain
marketing
functions.
Can
we
do
away
with
copywriters
now
that
ChatGPT
can
automate
copy?
What
about
graphic
designers
now
that
Canva
has
Magic
Design,
an
AI
design
generator?

But
how
much
more
efficient
and
effective
does
AI
actually
make
marketing
agencies?
What
should
clients
expect?
And
should
clients
be
concerned
about
how
their
agencies
are
using
AI?

AI
Isn’t
a
New
Concept
for
Marketing
Agencies

If
we
were
to
play
a
word
association
game
with
“AI,”
most
of
us
would
immediately
think
of
ChatGPT
or
another
popular
large
language
model
(LLM),
but
these
aren’t
the
first
AI
tools
to
affect
the
marketing
industry.
This
technology
might
feel
shiny
and
new
due
to
recent
dramatic
jumps
in
its
progress,
but
it’s
been
slowly
permeating
our
workflows
for
years.

It’s
likely
that
your
marketing
agency
is
already
using
AI
and
has
been
for
some
time.
At
the
very
least,
it’s
probably
using
Grammarly
— the
trusty
digital
writing
assistant that
combs
through
your
copy
to
detect
errors
and
plagiarism,
suggest
changes
or
spot
gaps
in
writing.

The
case
for
implementing
AI
into
legal
marketing
is
familiar
by
now:
These
tools
are
multitasking
powerhouses
that
reduce
time
spent
on
routine,
mundane
tasks
so
marketers
can
devote
more
energy
to
high-level,
strategic
work
and
people
management.

HubSpot’s
2023
report
on
the
state
of
AI
in
marketing found
that
the
most
common
uses
across
all
industries
are:

1. Content
   creation
   (48%)
2. Analyzing
   or
   reporting
   on
   data
   (45%)
3. Learning
   how
   to
   do
   things
   (45%)
4. Conducting
   research
   (32%)

In-house
marketers
should
expect
AI
and
automation
to
increase
their
agencies’
efficiency
(HubSpot’s
report
found
it
can
free
up
almost
a
month
of
additional
work
time
per
year).
But,
as
ever
when
operating
in
the
legal
industry,
extreme
caution
is
paramount.
Below
is
a
breakdown
of
why
generative
AI
requires
careful
implementation
and
oversight,
and
isn’t
always
your
best
bet
for
a
first
draft.

Where
Generative
AI
Fails
—
and
How
to
Bridge
the
Gap

For
the
more
left-brained
humans
among
us,
it’s
the
dream:
a
writing
robot
that
systematizes
content
creation
and
pumps
out
copy
in
mere
seconds.
Much
like
the
trusty
calculator
did
for
math,
generative
AI
could
revolutionize
how
we
write.
(Yes,
William
Shakespeare,
Emily
Dickinson,
et
al.
are
definitely
turning
in
their
graves).

But
hold
up:
there
are
multiple
reasons
why
agencies
—
especially
those
serving
law
firms
—
should
not
use
AI
for
pure
content
creation.

1.
Effective
Law
Firm
Marketing
Depends
on
Building
Authority
and
Credibility

In
a
crowded
market,
leveraging
a
law
firm’s
reputation
and
subject
matter
experience
can
set
it
apart
from
competitors.
If
your
marketing
materials
provide
reliable
information
and
valuable
insights,
readers
will
seek
it
out.
The
problem
is
that
purely
AI-generated
content
is
the
opposite
of
this;
it
lacks
authenticity
and
genuine
expertise.
And
because
AI
pulls
from
existing
resources,
your
content
might
inadvertently
include
previously
used,
published
or
trademarked
material.

To
avoid
this
issue, use
human
insights
to
inform
your
content
and
guide
overall
strategy
and
messaging
rather
than
relying
solely
on
AI.
Implement
redundancy
and
plagiarism-spotting
tools
to
augment
your
AI
use.

2.
Using
AI
for
Pure
Content
Creation
Will
Give
You
Low-Quality,
Uncopyrightable
Content

Everyone
loves
an
accent,
except
when
it
comes
to
AI-generated
content.
Text
generated
by
tools
such
as
Anthropic,
ChatGPT
and
Perplexity
have
a
certain
cadence
that
sets
them
apart
from
human-written
content.
But
unlike
the
soothing
tones
of
Morgan
Freeman’s
narration
or
the
warm
hug
of
Dolly
Parton’s
Southern
twang, this
telltale
“accent” is
neither
charming
nor
unique.
That’s
because
the
database
of
content
it’s
relying
on
is
based
on
existing
information.
This
can
negatively
impact
SEO,
as
search
engines
prioritize
unique
and
valuable
content
that
meets
users’
needs.
What’s
more,
the
U.S.
Copyright
Office’s
current
position
is
that
a
work’s
author
must
be
human,
not
AI,
and
it’s
unclear
how
much
human
involvement
is
necessary
for
copyright
to
apply.

To
avoid
this
issue, use
human
editors
to
draft
and
refine
content,
supplement
their
work
with
AI
and
regularly
evaluate
its
efficacy.

3.
Current
AI
Tools
Have
a
Hallucination
Problem

Sure,
humans
might
get
the
odd
stress
headache,
but
generative
AI
is
prone
to
frequent
hallucinations
(so
frequent,
in
fact,
that a
Stanford
University
study
found generative
AI
tools
designed
for
the
legal
industry
produce
false
or
misleading
information
between
17%
and
33%
of
the
time).
That’s
because
this
technology
was
designed
to
predict
the
next
word
in
a
sequence,
and
what
the
AI
predicts
should
come
next
based
on
learned
patterns
isn’t
necessarily
what should come
next.
This
can
lead
to
misrepresentations
about
a
lawyer,
firm
or
legal
matter
in
marketing
copy
—
and
for
a
notoriously
risk-averse
industry,
that’s
a
big
deal. Just
look
at
what
happened
to
Air
Canada when
their
chatbot
gave
inaccurate
information
to
a
customer.

To
avoid
this
issue, have
human
editors
copyedit
and
fact-check
all
AI-generated
content.
Use
AI
to
synthesize
blocks
of
text
into
quick
bullet
points
rather
than
relying
on
it
for
market-ready
messaging.

4.
AI
Platforms
Are
a
Data
Privacy
and
Security
Minefield

Anything
you
put
into
an
AI
platform
could
be
used
to
generate
copy
and
content
for
other
users.
Take ChatGPT’s
terms
of
use,
which
say
it
can
use
inputs
and
outputs
“to
provide,
maintain,
develop
and
improve
our
services.”
Similarly,
text-to-image
generator Midjourney’s
terms
of
use say
it
has
a
perpetual
license
“to
reproduce,
prepare
derivative
works
of,
publicly
display,
publicly
perform,
sublicense
and
distribute
text
and
image
prompts
you
input
into
the
services,
as
well
as
any
assets
produced
by
you
through
the
service.”

To
avoid
this
issue, never
enter
confidential
information
into
a
third-party,
public
AI
tool,
review
all
terms
and
conditions
and
train
your
staff
on
the
associated
data
privacy
and
security
concerns.
Look
to
technology
such
as Meta’s
Llama or
any LM
Studio model
for
housing
confidential
data
as
they
run
locally
on
your
computer.

5.
Algorithmic
Biases
Lurk
Within
the
System

Depending
on
the
data
used
to
train
its
algorithms,
AI
platforms
can
unintentionally
perpetuate
biases
by
reinforcing
stereotypes,
encouraging
unfair
treatment
and
even
discriminating
against
certain
groups
of
people.

To
avoid
this
issue, don’t
rely
on
AI
to
make
decisions
or
lead
initiatives.
Look
to
platforms
that
use
diverse
data
sets,
conduct
regular
audits
and
involve
human
oversight
to
spot
and
rectify
potential
issues.

Recommendations
for
In-House
Marketers

Armed
with
these
cautionary
tales,
there
are
several
steps
you
can
take
to
evaluate
and
optimize
your
marketing
agency’s
use
of
AI.
This
involves
gaining
a
clear
understanding
of
how
AI
is
being
used
and
what
that
means
for
your
firm,
reviewing
contracts
and
ensuring
your
agency
is
following
best
practices.

Here
are
some
considerations
for
discussing
AI
with
your
firm’s
agency:

1. Ask
   your
   firm’s
   agency
   what
   tools
   they’re
   already
   using
   and
   what
   they’re
   using
   them
   for.
2. Discuss
   what
   you’re
   comfortable
   and
   uncomfortable
   with,
   and
   why.
3. Inquire
   about
   the
   tools
   your
   agency
   is
   considering
   using,
   along
   with
   the
   pros
   and
   cons
   of
   implementing
   them.
4. Consider
   reviewing
   your
   contract
   to
   ensure
   it
   aligns
   with
   your
   expectations
   and
   adheres
   to
   your
   boundaries.
   If
   there’s
   currently
   no
   mention
   of
   AI
   use,
   consider
   adding
   clauses
   to
   address
   how
   it
   should
   or
   shouldn’t
   be
   implemented.

If
your
firm’s
agency
is
following
best
practices
for
implementing
AI,
you
should
be
able
to
answer
“yes”
to
the
following
questions:

1. Does
   the
   agency
   disclose
   its
   AI
   use
   to
   clients
   for
   transparency?
2. Does
   it
   remove
   all
   personal
   identifiers
   to
   anonymize
   data?
3. Does
   it
   make
   sure
   no
   sensitive
   data
   is
   ever
   fed
   into
   an
   AI
   platform?
4. Do
   humans
   review
   all
   the
   agency’s
   output
   before
   clients
   receive
   it?

Your
Agency
Still
Needs
Humans

As
a
human
myself,
I’m
thrilled
to
write
the
above
heading.
And
it’s
true:
AI
won’t
replace
your
marketing
agency,
but
it
can
level
up
your
agency’s
operations
and
content
if
implemented
strategically.

While
AI
excels
at
analyzing
vast
amounts
of
data
and
automating
time-consuming
tasks,
it
needs
the
contextual
understanding
and
creative
intuition
of
human
marketers.
Effective
legal
marketing
requires
a
deep
understanding
of
market
dynamics,
relationship
building,
client
preferences,
cultural
nuances
and
brand
development.
With
these
skills,
we
can
interpret
AI-generated
insights
in
a
meaningful
way.

As
with
any
great
hire
assigned
to
a
new
role,
allow
AI
to
explore
its
most
enjoyable
strengths
(which
happen
to
be
completing
your
most
tedious,
routine
and
time-consuming
tasks)
and
rely
on
its
human
colleagues
for
strategic
direction,
critical
oversight
and
creative
innovation.

Ed.
note:
Welcome
to
our
daily
feature,

Quote
of
the
Day.

I’ve
always
done
that
to
support
her
political
runs
for
office.
I’ve
done
that
on
the
2020
campaign.
And
I
continue
to
do
that
on
this
campaign,
because,
as
a
lawyer—again,
believing
in
the
rule
of
law,
our
Constitution,
our
democracy,
our
freedoms—that’s
why
we
must
support
Kamala
Harris.

—
Second
Gentleman

Doug
Emhoff,
in
comments
given
to

Law.com,
on
whether
he’s
planning
or
assisting
with
any
fundraisers
that
will
draw
in
lawyers
for
his
wife

Kamala
Harris’s
presidential
campaign.
Emhoff,
formerly
a
partner
at
DLA
Piper,
went
on
to
say
that
if
his
wife
becomes
President,
that
as
First
Gentleman
he’d
like
to
dedicate
time
to
“promoting
pro
bono
to
our
legal
community
and
making
sure
that
folks
out
there
are
able
to
have
the
means
and
support
to
access
our
legal
system,
because
it’s
the
right
thing
to
do.”
He
concluded,
noting
that
he’d
use
his
platform
“to
continue
as
first
gentleman,
as
a
lawyer,
to
step
up
for
those
values.”

---

Staci
Zaretsky is
a
senior
editor
at
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to

email
her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on

X/Twitter
and

Threads
or
connect
with
her
on

LinkedIn.

Ed.
note:
Welcome
to
our
daily
feature,

Quote
of
the
Day.

I’ve
always
done
that
to
support
her
political
runs
for
office.
I’ve
done
that
on
the
2020
campaign.
And
I
continue
to
do
that
on
this
campaign,
because,
as
a
lawyer—again,
believing
in
the
rule
of
law,
our
Constitution,
our
democracy,
our
freedoms—that’s
why
we
must
support
Kamala
Harris.

—
Second
Gentleman

Doug
Emhoff,
in
comments
given
to

Law.com,
on
whether
he’s
planning
or
assisting
with
any
fundraisers
that
will
draw
in
lawyers
for
his
wife

Kamala
Harris’s
presidential
campaign.
Emhoff,
formerly
a
partner
at
DLA
Piper,
went
on
to
say
that
if
his
wife
becomes
President,
that
as
First
Gentleman
he’d
like
to
dedicate
time
to
“promoting
pro
bono
to
our
legal
community
and
making
sure
that
folks
out
there
are
able
to
have
the
means
and
support
to
access
our
legal
system,
because
it’s
the
right
thing
to
do.”
He
concluded,
noting
that
he’d
use
his
platform
“to
continue
as
first
gentleman,
as
a
lawyer,
to
step
up
for
those
values.”

---

Staci
Zaretsky is
a
senior
editor
at
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to

email
her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on

X/Twitter
and

Threads
or
connect
with
her
on

LinkedIn.

After
taunting
Arizona
prosecutors
struggling
to
serve
him,
Rudy
Giuliani
threw
a
birthday
bash
that
he
hyped
on
social
media
—
a
move
culminating
in

the
process
server
showing
up
and
handing
the

disbarred
former
mayor
his
papers.

The
direct
relationship
between
fucking
around
and
finding
out
continues
into
infinity.

Now
fully
ensconced
as
a
defendant
in
the
criminal
case
arising
from
the
effort
to
install
fake
electors
in
2020,
Giuliani
is
subject
to
standard
requirements
that
a
criminal
defendant
not
leave
the
state
while
the
case
is
pending.
As
a
non-resident,
Rudy
didn’t
want
to
be
stuck
in
Arizona
and
the
prosecutors
didn’t
really
want
him
stuck
there
either,
so
all
sides
agreed
to
modify
the
conditions
of
his
release
to
send
him
home.

But
Giuliani
took
the
opportunity
to
do
a
little
editorializing…

Specifically,
this
discourse:

Mr.
Giuliani
is
a
great
American
Hero
and
Patriot
whose
endurance,
swift
action,
and
determination
inspired
all
people
in
the
United
States
during
a
time
of
great
national
turmoil
and
stress.

Would
anyone
think
it
necessary
to
require
George
Washington
to
reside
in
a
particular
state
and
not
leave
that
state
without
the
permission
of
the
court
if
charges
were
filed
against
him
in
that
state
during
his
life?
The
answer
is
an
emphatic
“No!”
Then
the
same
is
true
for
Mr.
Giuliani.

“If”
performs
a
lot
of
heavy
lifting
in
that
sentence
as
Washington
was
not
—
*checks
notes*
—
ever
charged
with
attempting
to
defraud
voters.
Honestly,
and
to
the
contrary,
IF
Washington
attempted
to
seize
power
through
illegal
means,
it
probably

would
be
necessary
to
require
him
not
leave
the
state
in
an
era
of
horse-and-buggy
travel.

As
Cheney
notes,
the
judge
granted
the
unopposed
motion
but
was
less
than
pleased
with
the
commentary:

Consistent
with
principles
of
equal
protection
under
the
law,
Defendant
Giuliani
is
not
entitled
to
greater
or
lesser
consideration
of
requested
relief
because
of
his
alleged
status
or
stature.
Any
suggestion
to
the
contrary
goes
against
all
concepts
of
justice.
Going
forward,
the
court
expects
all
parties
to
limit
their
filings
and
arguments
to
cognizable
claims
that
are
supported
by
relevant
facts
and
law.

If
Judge
Bruce
Cohen
really
expects
that…
then
he’s
not
familiar
with
Rudy’s
work.

In
fact,
his
alleged
inability
to
limit
himself
to
“cognizable
claims
that
are
supported
by
relevant
facts
and
law”
is
sort
of
how
we
got
to
this
point.

---

Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of

Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a

Managing
Director
at
RPN
Executive
Search.

Nikki
Haley
spent
the
early
part
of
the
year
running
a
doomed
campaign
against
Donald
Trump.
While
seeking
the
Republican
nomination,
the
former
Trump
administration
official
said
her
former
boss
was

“unhinged”
and
“mentally
unfit”
and
“like
suicide
for
our
country.”
On
May
22,
she
said
that
she
would
be
voting
for
the
unhinged,
mentally
unfit,
suicide
for
our
country
guy.

After
Haley
dropped
out
of
the
race
—
though
before
she
openly
declared
her
fealty
to
Trump
—
a
SuperPAC
supporting
Haley
set
up
a
campaign
called
Haley
Voters
for
Biden.
Haley
didn’t
do
much
about
that,
but
now,
some
four
months
later
and
after
the
campaign
has
rebranded
as
Haley
Voters
for
Harris,
the
former
South
Carolina
governor
fired
off
a
cease-and-desist
letter.

“Any
use
by
you
of
Ambassador
Haley’s
name,
image,
or
likeness
is
without
her
permission.
Ambassador
Haley
has
been
clear
in
her
support
of
Harris’
opponent.
Any
intimation
that
Ambassador
Haley
supports
Harris
is
intentionally
false
and
misleading,”
Haley’s
attorneys
from
Chalmers,
Adams,
Backer
&
Kaufman

warned
the
group.

Another
SEC
fight
over
NIL,
eh?

In
a
letter
sent
out
yesterday,
the
PAC
noted
that
its
name
doesn’t
say
“Haley
supports
Harris,”
but
that
Haley
voters
do.
Probably
because
they
made
the
mistake
of
trusting
her
when
she
said
things
like,
I
dunno,
“unhinged”
and
“mentally
unfit”
and
“like
suicide
for
our
country.”

And
thus,
the
PAC
explained,
Haley
can
get
bent.
Though
they
put
it
in
much
nicer
terms.

The
disclaimer
for
the
Haley
Voters
for
Harris
website
accurately
states,
-Paid
for
by
PivotPAC
and
not
authorized
by
any
candidate
or
candidate’s
committee.-
And
the
website
additionally
states,
-Statements
expressed
on
this
site
are
our
own
and
may
not
reflect
Nikki
Haley’s
or
Vice
President
Harris’s
views.-
The
letter
fails
to
identify
a
single
statement
that
misrepresents
Ambassador
Haley’s
views.
The
suggestion
that
PivotPAC
may
be
engaged
in
intentional
misrepresentations
to
the
public
is
frivolous
and
defamatory.

Further,
the
organization
notes,
“We
shall
not
cease
and
desist
and
our
First
Amendment
speech
will
not
be
silenced
because
our
activities
under
the
—
Haley
Voters
for
Harris
—
campaign
are
fully
compliant
with
the
law.

It
must
be
tough
for
a
politician
to
see
their
name
so
callously
invoked
to
support
the
principles
they
pretended
to
hold
a
few
months
earlier.
Alas,
“Haley
Voters”
are
not,
in
fact,
“Haley.”

But
one
suspects
Haley
is
less
interested
in
stifling
this
group
than
letting
certain
someones
know
that
she’s
deeply
committed
to
the
Trump
cause.

And
how
could
you
not
trust
her
at
her
word
at
this
point?

---

Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of

Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a

Managing
Director
at
RPN
Executive
Search.

Getting
the
Supreme
Court
to
decide
that
businesses
have
a
constitutional
right
to
discriminate
against
protected
classes
has
its
costs.
I’m
not
talking
about
the
moral
ones
—
no
one
seems
to
care
about
those.
I’m
talking
about
money.
303
Creative’s
web
designer
can
reject
all
of
the
gay
business
she
wants,
but
somebody
is
going
to
have
to
pay
the
$2M
in
lawyer
fees.

NBC
News
has
coverage:

A
Denver-area
web
designer
who
won
a
U.S.
Supreme
Court
ruling
last
year
that
said
the
right
to
free
speech
allows
some
businesses
to
refuse
to
provide
services
for
same-sex
weddings
has
asked
a
judge
in
Colorado
to
award
her
nearly
$2
million
in
legal
fees.

Conservative
legal
organization
Alliance
Defending
Freedom,
which
represented
Christian
web
designer
Lorie
Smith
in
her
fight
against
a
Colorado
anti-discrimination
law,
in
a
court
filing
on
Wednesday
said
their
victory
after
seven
years
entitled
them
to
compensation…They
said
their
$2
million
request
would
reimburse
them
for
2,174.4
hours
of
work
on
the
litigation,
a
36%
reduction
from
the
3,374.9
billed
hours
they
devoted
to
the
case.

On
balance,
the
two
million
ask
is
probably
pennies
on
the
dollar
compared
to
the
actual
costs
of
their
win.
All
the

marketing
that
went
into
publicizing
the
case
as
a
rallying
cry
for
keeping
the
faith
couldn’t
have
been
cheap.
Best
of
luck
to
them,
maybe
Crow
might
chip
in
if
he’s

not
too
busy
finding
historical
artifacts
to
gift
to
Clarence
Thomas.

Web
Designer
Wants
Legal
Fees
For
Supreme
Court
Win
In
free
speech,
LGBTQ
Rights
Case
[NBC
News]

---

Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s.
 He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
cannot
swim, a
published
author
on
critical
race
theory,
philosophy,
and
humor,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at [email protected] and
by
tweet
at @WritesForRent.

About
a
year
and
a
half
ago,
in
a
ruling
striking
down
the
Ohio
state
version
of

Chevron
deference,
the
conservative
majority
on
the
state
supreme
court
noted
that
“text
should
be
given
its
contemporaneous
and
customary
meaning.”
Yesterday,
in
a
4-3
opinion,

the
conservative
justices
decided
that
“boneless
wings”
can
have
bones
in
them.

Welcome
to
Buffalo
Wildly
Deadly
Wings!

Michael
Berkheimer
ordered
boneless
wings
from
a
restaurant
and
ended
up
swallowing
a
roughly
1-3/8
inch
chicken
bone.
It
tore
his
esophagus
and
caused
a
bacterial
infection
in
his
thoracic
cavity.
He
sued
the
restaurant,
the
supplier,
and
the
chicken
farm.
Rather
than
allow
a
jury
to
sort
out
liability,
the
state
supreme
court
ruled
that
no
jury
could
possibly
believe
a
boneless
wing
would
be
free
of
bones.

And
regarding
the
food
item’s
being
called
a
“boneless
wing,”
it
is
common
sense
that
that
label
was
merely
a
description
of
the
cooking
style.
A
diner
reading
“boneless
wings”
on
a
menu
would
no
more
believe
that
the
restaurant
was
warranting
the
absence
of
bones
in
the
items
than
believe
that
the
items
were
made
from
chicken
wings,
just
as
a
person
eating
“chicken
fingers”
would
know
that
he
had
not
been
served
fingers.
The
food
item’s
label
on
the
menu
described
a
cooking
style;
it
was
not
a
guarantee.

The
majority
is
a
bit
nebulous
on
the
limits
of
the
“boneless”
cooking
style,
but
if
you’re
thinking
that
one
of
its
hallmarks
would
be,
at
a
minimum,

a
lack
of
bones,
you
would
apparently
be
wrong
in
Ohio.
Astoundingly,
a
few
pages
before
this
passage,
the
majority
notes
that
the
cook’s
deposition
testimony
“explained
that
the
boneless
wings
were
made
from
pre-butterflied,
boneless,
skinless
chicken
breasts,”
an
odd
description
to
include
for
raw
chicken
meat
when
you’re
defining
“boneless”
as
a
cooking
style
and
not
a
straightforward
description
of
the
boniness
of
meat.

The
whole
point
of
this
“style”
argument
is
to
claim
that
the
plain
meaning
of
“boneless
wing”
is
not
that
it’s
boneless
but
that
it’s
made
with
breast
meat.
As
though
diners
ordering
boneless
wings
would
be
right
to
suspect
they
might
be
eating
chunks
of
bone-in
breast.
That’s
why
the
opinion
invokes
the
humble
chicken
finger
as
another
anatomically
incorrect
product.

Ad
bullshit
ad
astra.

But
kudos
to
defense
counsel.
Someone
over
there
said,
“What
if
we
contend
that
the
word
‘boneless’
means
‘bones?’”
And
rather
than
say,
“It
might
undermine
our
credibility
with
the
court
to
sound
like
we’re
fucking
idiots,”
the
partner
thought,
“Hey,
you
miss
100
percent
of
the
shots
you
don’t
take!”

In
dissent,
the
three
Democratic
justices
deployed
a
far
less
tenuous
grasp
of
the
English
language.

The
majority
opinion
states
that
“it
is
common
sense
that
[the
label
‘boneless
wing’]
was
merely
a
description
of
the
cooking
style.”
Majority
opinion
at
¶
23.
Jabberwocky.
There
is,
of
course,
no
authority
for
this
assertion,
because
no
sensible
person
has
ever
written
such
a
thing.

And
sensible
people
still
have
not.

Undeterred,
the
majority
continued
to
deny
plain
meaning
after
the
cock
crows.

[T]he
court
of
appeals
took
into
account
that
the
boneless
wings
were
prepared
by
cutting
a
chicken
breast
into
one-inch
pieces
that
were
then
fried….
In
this
way,
the
boneless
wings
were
analogous
to
a
fish
fillet—and
“‘everyone…
knows
that
tiny
bones
may
remain
in
even
the
best
fillets
of
fish.’”

But
note
how
the
word
“filet”
is
not
the
word
“boneless.”
A
filet
generally
means
the
cut
won’t
have
bones
—
though
the
term
is
not
synonymous
with
boneless,
since
it
actually
refers
to
the
technique
of
tying
the
meat
before
cutting
it
—
but
it
moves
the
goalposts
to
willy-nilly
conflate
“boneless”
with
“filet.”
While
diners
might
be
prepared
for
a
stray
bone
in
a
filet
of
fish,
they
wouldn’t
be
if
the
restaurant
instead
advertised
“boneless
fish.”

Instead
of
applying
the
reasonable
expectation
test
to
a
simple
word
—
“boneless”
—
that
needs
no
explanation,
the
majority
has
chosen
to
squint
at
that
word
until
the
majority’s
“sense
of
the
colloquial
use
of
language
is
sufficiently
dulled,”
concluding
instead
that
“boneless”
means
“you
should
expect
bones.”

(internal
citation
omitted).

Welcome
to
the
textualism
of
the
modern
conservative
legal
movement!

The
only
“contemporaneous
and
customary”
that
matters
are
the
contemporaneous
and
customary
policy
aims
of
the
Republican
Party.
Want
to
protect
businesses
from
lawsuits?
Boneless
means
bones.
Want
to
strike
down
the
federal
mask
mandate?

“Sanitation”
doesn’t
include
“sanitary
face
masks.”
Want
to
let
Donald
Trump
handle
nuclear
codes
from
Mar-a-Lago’s
toilet?
Then
“shall
nevertheless
be
liable
and
subject
to
Indictment,
Trial,
Judgment
and
Punishment,
according
to
Law”
means
“absolute
immunity
from
prosecution.”

It’s
just
an
elaborate
game
of

Balderdash
except
the
stakes
include
choking
to
death.
Whether
it’s
from
a
chicken
bone
or
SARS-CoV-2
is
academic.

And
by
dragging
the
chicken
finger
into
this
discussion
against
its
will,
the
majority’s
reasoning
leaves
the
reader
wondering
if
chomping
down
on
the
famously
boneless
menu
item
known
as
a
“chicken
finger”
is
even
safe
under
this
opinion.
While
it
doesn’t
use
the
word
“boneless”
—
now
a
warning
that
the
food
might
contain
bones
—
folks
generally
expect
chicken
fingies
to
arrive
sans
bone.
It’s
a
question
with
some
significant
implications
for
the
parents
of
Ohio
as
the
dissent
highlights:

The
question
must
be
asked:
Does
anyone
really
believe
that
the
parents
in
this
country
who
feed
their
young
children
boneless
wings
or
chicken
tenders
or
chicken
nuggets
or
chicken
fingers
expect
bones
to
be
in
the
chicken?
Of
course
they
don’t.
When
they
read
the
word
“boneless,”
they
think
that
it
means
“without
bones,”
as
do
all
sensible
people.
That
is
among
the
reasons
why
they
feed
such
items
to
young
children.

So,
next
time
you’re
in
Ohio
with
the
kids…
maybe
order
the
hot
dogs.
Ironically,
you
have
a
better
chance
of
knowing
what’s
in
them.

(Check
out
the
opinion
on
the
next
page)

---

Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of

Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a

Managing
Director
at
RPN
Executive
Search.