Christ, why isn’t OpenPhil taking any action, even making a comment or filing an amicus curiae?
I certainly hope there’s some legitimate process going on behind the scenes; this seems like an awfully good time to spend whatever social/political/economic/human capital OP leadership wants to say is the binding constraint.
And OP is an independent entity. If the main constraint is “our main funder doesn’t want to pick a fight,” well so be it—I guess Good Ventures won’t sue as a proper donor the way Musk is; OP can still submit some sort of non-litigant comment. Naively, at least, that could weigh non trivially on a judge/AG
As potential plaintiff: I get the sense that OP & GV are more professionally run than Elon Musk’s charitable efforts. When handing out this kind of money for this kind of project, I’d normally expect them to have negotiated terms with the grantee and memoralized them in a grant agreement. There’s a good chance that agreement would have a merger clause, which confirms that (e.g.) there are no oral agreements or side agreements. Attorneys regularly use these clauses to prevent either side from getting out of or going beyond the negotiated final written agreement. Even if there isn’t a merger clause, the presence of a comprehensive grant agreement would likely make it harder for the donor to show that a trust had been created, that the donor had a reversionary interest, or so on if the agreement didn’t say those things.
As potential source of evidence: I’d at least consider the possibility that people associated with OP and/or GV could be witnesses at trial or could provide documentary evidence—e.g., if there is a dispute over what representations OpenAI was making to major donors to secure funding. That might counsel keeping quiet at this juncture, particularly considering the next point.
As a potential amicus: I expect the court would either reject or ignore an amicus filing at this stage in the process. The court has jurisdiction over a claim by Elon Musk and xAI that OpenAI violated antitrust law, violated a contract or trust with Musk under California charitable law, etc. If OP/GV tried to submit an amicus brief on most of the actually relevant legal issues on a preliminary injunction, the court would likely see this as an improper attempt to effectively buy additional pages of argument for Musk & xAI.[1] To the extent that the amicus brief was about a legally peripheral issue—like AI as a GCR—it would likely be read by a law clerk (a bright recent graduate) who would tell the judge something like “This foundation submitted an amicus brief arguing that AI may go rogue and kill us all. Doesn’t seem relevant to the issues in this case.”
Note that I think there is a potential role for amici later in this case, but the preliminary-injunction stage was not it.
See Ryan v. Commodity Futures Trading Com’n, 125 F. 3d 1062, 1063 (7th Cir. 1993) (Posner, C.J., in chambers) (“The vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants’ briefs, in effect merely extending the length of the litigant’s brief. Such amicus briefs should not be allowed. They are an abuse. The term ‘amicus curiae’ means friend of the court, not friend of a party.”). In my experience, these sorts of amicus briefs do have a place when the core legal issue is of broad importance but the litigant lacks either the means or incentive to put forth their best argument.
The vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants’ briefs, in effect merely extending the length of the litigant’s brief. Such amicus briefs should not be allowed. They are an abuse. The term ‘amicus curiae’ means friend of the court, not friend of a party.
I agree that most such briefs are often from close ideological allies, but I’m curious about you suggestion that the court would reject them on this ground. Surely all the organizations filing somewhat duplicative amicus curiae briefs all the time do so because they think it is helpful?
That quotation is from an order by then-Chief Judge Posner of the Seventh Circuit denying leave to file an amicus brief on such a basis. Judge Posner was, and the Seventh Circuit is, more of a stickler for this sort of this sort of thing (and both were/are more likely to call lawyers out for not following the rules than other courts). Other courts are less likely to actually kick an amicus brief—that requires more work than just ignoring it! -- but I think Judge Posner’s views would enjoy general support among the federal judiciary.
There’s a literature on whether amicus briefs are in general helpful vs. being a waste of money, although it mostly focuses on the Supreme Court (e.g., this article surveys some prior work and reflects interviews with former clerks, but is a bit dated). I don’t see an amicus brief on the preliminary injunction here hitting many of the notes the former clerks identified as markers of value in that article. Whether there was a charitable trust between Musk and OpenAI isn’t legally esoteric, there’s no special perspective the amicus can bring to bear on that question, and so on.
You’re right insofar as amicus briefs are common at the Supreme Court level, although they are not that common in the courts of appeals (at least when I clerked) and I think they are even less common at the district court level in comparison to the number of significant cases. So I would not view their relative prevalence at the Supreme Court level as strong information in either direction on how effective an amicus brief might be here.
Judges are busy people; if a would-be amicus seeks to file an unhelpful amicus brief at one stage of the litigation, it’s pretty unlikely the judge is going to even touch another brief from that amicus at a later stage. If I were a would-be amicus, I would be inclined to wait until I thought I had something different enough than the parties to say—or thought that I would be seen as a more credible messenger than the parties on a topic directly relevant to a pending decision—before using my shot.
I expect the court would either reject or ignore an amicus filing at this stage in the process.
Worth noting that the court has already accepted two amicus briefs on the preliminary injunction, one by Encode Justice and the other by the Delaware AG.
To the extent that the amicus brief was about a legally peripheral issue—like AI as a GCR—it would likely be read by a law clerk (a bright recent graduate) who would tell the judge something like “This foundation submitted an amicus brief arguing that AI may go rogue and kill us all. Doesn’t seem relevant to the issues in this case.”
Although this is of course speculation, I wonder if this is the type of reaction that the Encode Justice brief (and possible future ones like it), might have received. Reading the brief I could definitely see how it might come across as kind of trying to deputize the court into a policy question, while not really hitting upon issues that are hugely relevant to the case actually in front of the court.
I agree this is absurd, this is probably the most obvious action open Phil has not taken. What do they have to lose at this stage by filling a lawsuit or at the very least like you say making an official comment.
Perhaps EAs and EA orgs are just by nature largely allergic to open public conflict even if it has decent potential to do good?
Christ, why isn’t OpenPhil taking any action, even making a comment or filing an amicus curiae?
I certainly hope there’s some legitimate process going on behind the scenes; this seems like an awfully good time to spend whatever social/political/economic/human capital OP leadership wants to say is the binding constraint.
And OP is an independent entity. If the main constraint is “our main funder doesn’t want to pick a fight,” well so be it—I guess Good Ventures won’t sue as a proper donor the way Musk is; OP can still submit some sort of non-litigant comment. Naively, at least, that could weigh non trivially on a judge/AG
[warning: speculative]
As potential plaintiff: I get the sense that OP & GV are more professionally run than Elon Musk’s charitable efforts. When handing out this kind of money for this kind of project, I’d normally expect them to have negotiated terms with the grantee and memoralized them in a grant agreement. There’s a good chance that agreement would have a merger clause, which confirms that (e.g.) there are no oral agreements or side agreements. Attorneys regularly use these clauses to prevent either side from getting out of or going beyond the negotiated final written agreement. Even if there isn’t a merger clause, the presence of a comprehensive grant agreement would likely make it harder for the donor to show that a trust had been created, that the donor had a reversionary interest, or so on if the agreement didn’t say those things.
As potential source of evidence: I’d at least consider the possibility that people associated with OP and/or GV could be witnesses at trial or could provide documentary evidence—e.g., if there is a dispute over what representations OpenAI was making to major donors to secure funding. That might counsel keeping quiet at this juncture, particularly considering the next point.
As a potential amicus: I expect the court would either reject or ignore an amicus filing at this stage in the process. The court has jurisdiction over a claim by Elon Musk and xAI that OpenAI violated antitrust law, violated a contract or trust with Musk under California charitable law, etc. If OP/GV tried to submit an amicus brief on most of the actually relevant legal issues on a preliminary injunction, the court would likely see this as an improper attempt to effectively buy additional pages of argument for Musk & xAI.[1] To the extent that the amicus brief was about a legally peripheral issue—like AI as a GCR—it would likely be read by a law clerk (a bright recent graduate) who would tell the judge something like “This foundation submitted an amicus brief arguing that AI may go rogue and kill us all. Doesn’t seem relevant to the issues in this case.”
Note that I think there is a potential role for amici later in this case, but the preliminary-injunction stage was not it.
See Ryan v. Commodity Futures Trading Com’n, 125 F. 3d 1062, 1063 (7th Cir. 1993) (Posner, C.J., in chambers) (“The vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants’ briefs, in effect merely extending the length of the litigant’s brief. Such amicus briefs should not be allowed. They are an abuse. The term ‘amicus curiae’ means friend of the court, not friend of a party.”). In my experience, these sorts of amicus briefs do have a place when the core legal issue is of broad importance but the litigant lacks either the means or incentive to put forth their best argument.
I agree that most such briefs are often from close ideological allies, but I’m curious about you suggestion that the court would reject them on this ground. Surely all the organizations filing somewhat duplicative amicus curiae briefs all the time do so because they think it is helpful?
That quotation is from an order by then-Chief Judge Posner of the Seventh Circuit denying leave to file an amicus brief on such a basis. Judge Posner was, and the Seventh Circuit is, more of a stickler for this sort of this sort of thing (and both were/are more likely to call lawyers out for not following the rules than other courts). Other courts are less likely to actually kick an amicus brief—that requires more work than just ignoring it! -- but I think Judge Posner’s views would enjoy general support among the federal judiciary.
There’s a literature on whether amicus briefs are in general helpful vs. being a waste of money, although it mostly focuses on the Supreme Court (e.g., this article surveys some prior work and reflects interviews with former clerks, but is a bit dated). I don’t see an amicus brief on the preliminary injunction here hitting many of the notes the former clerks identified as markers of value in that article. Whether there was a charitable trust between Musk and OpenAI isn’t legally esoteric, there’s no special perspective the amicus can bring to bear on that question, and so on.
You’re right insofar as amicus briefs are common at the Supreme Court level, although they are not that common in the courts of appeals (at least when I clerked) and I think they are even less common at the district court level in comparison to the number of significant cases. So I would not view their relative prevalence at the Supreme Court level as strong information in either direction on how effective an amicus brief might be here.
Judges are busy people; if a would-be amicus seeks to file an unhelpful amicus brief at one stage of the litigation, it’s pretty unlikely the judge is going to even touch another brief from that amicus at a later stage. If I were a would-be amicus, I would be inclined to wait until I thought I had something different enough than the parties to say—or thought that I would be seen as a more credible messenger than the parties on a topic directly relevant to a pending decision—before using my shot.
Worth noting that the court has already accepted two amicus briefs on the preliminary injunction, one by Encode Justice and the other by the Delaware AG.
Although this is of course speculation, I wonder if this is the type of reaction that the Encode Justice brief (and possible future ones like it), might have received. Reading the brief I could definitely see how it might come across as kind of trying to deputize the court into a policy question, while not really hitting upon issues that are hugely relevant to the case actually in front of the court.
*Edited to fix a typo
I agree this is absurd, this is probably the most obvious action open Phil has not taken. What do they have to lose at this stage by filling a lawsuit or at the very least like you say making an official comment.
Perhaps EAs and EA orgs are just by nature largely allergic to open public conflict even if it has decent potential to do good?