A year ago, I noted "hubbub surrounding two federal judges" and the AI craze sweeping America. See Trust but Verify (August 2025) and Just Delete It? (October 2025). One of the instances discussed there was "Judge Henry Wingate (78) of Mississippi (who) was appointed in 1985 by Ronald Reagan."
The situation then involved "a lapse in human oversight." Judge Wingate "reportedly deleted the (AI) order riddled with mistakes." A new order was then purportedly substituted for the erroneous original. Reporting then described Judge Wingate's solution to prevent future instances of AI error and hallucination would be double-checking "by a second law clerk before submission to" the judge. Would double-checking by the judge be a good alternative to that?
The Fifth Circuit Court of Appeals recently issued an order in Jackson Fed'n of Tchrs. v. Fitch, No. 25-60496, 2026 WL 3167654 (5th Cir. Oct. 22, 2026), and it has attracted attention. It appears this may address the order discussed in the previous posts. This 5th Circuit decision reversed Judge Wingate and concluded that a change of trial judges was necessary.
It noted that a preliminary injunction had been entered August 18, 2025 by Judge Wingate. The court explained that review of such an injunction is by the "abuse of discretion" standard. It reminded that "grant(ing) a preliminary injunction based on incorrect legal principles '[b]y definition'" is abuse of discretion. That sentence is compelling and informative on the abuse standard of review.
The court's description is difficult to read; the law that must be comprehended and interpreted is complex. Undoubtedly, the process that the 5th Circuit describes, the "Moody two-step process," sounds involved and factually intense. It includes a "rigorous standard" and careful weighing of competing considerations.
In Fitch, a temporary restraining order (TRO) was entered on July 20, 2025, with "eleven individuals and organizations who had never been party to the case" named as plaintiffs. The "named ... defendants (were) two officials who were not actually sued." The court also noted other foundational flaws ("without evidence").
Then a defense "motion to clarify" led to an unexplained "seemingly corrected version" of the July 20, 2025 order. The original was "replaced" in that process rather than an amended order entered. The defense asked that this original document "be restored to the docket to keep the record whole." That request was denied. Deleting a public record from the docket is troubling.
Following a Senatorial inquiry, "Judge Wingate admitted the errors, claiming that a law clerk had used AI to assist drafting an earlier version of the TRO that was docketed by mistake." In addition to other procedural criticism, the 5th Circuit noted that the second TRO ("backdated to July 20") "did not correct all of the errors," and one hallucinated case remained thereafter until discovered at the appellate oral argument.
The appellate court made observations about Judge Wingate's process and noted he had essentially "take(n) the plaintiffs' claims as true, with barely a glance at the arguments of the defendants." This, it characterized as "legal analysis so poor that it hardly deserves the label."
Elsewhere, the court used the terms "laxity in observing binding authority," an analysis "completely backwards," and a situation "deeply troubling." It notes the "substantive reasoning is poor at best." The court concludes that "the order badly misunderstands" a 2025 U.S. Supreme Court decision. Reversal for reconsideration of these flaws was necessary.
Additionally, having noted the various shortcomings and concluding to reverse, the 5th Circuit concluded that it was appropriate to exercise "an 'extraordinary' and 'rarely invoked' power” and to reassign the case to another judge on remand.
The analysis and explanation there are clear. First, the "AI-hallucinated 'facts' from (the) original TRO" and the lack of explanation in the second order, later issued with a similar TRO outcome despite then being "without the false evidence to support it." The Circuit Court also noted
"the public esteem for the judiciary would be diminished by sending this case back to the same judge for judgment on facts and law entirely different from those upon which he supported his initial TRO"
Furthermore, it noted some judge would have to begin the analysis in Fitch anew because of the direction this opinion provides on Moody, and more. Thus, the court concluded, "'regrettably,' the waste of the tainted proceedings is 'already on the balance sheet.'” Citation omitted.
It noted also "that an objective observer might question the impartiality of the proceedings" and "therefore might further question later proceedings run by the same judge." Perhaps that is always a potential when a judge's conclusion is reversed, and remand is appropriate?
The analysis in Fitch is significant. The perils of artificial intelligence are illustrated. The perils of reliance on paraprofessionals, law clerks, and others are also worthy of consideration. The lawyer or judge who signs their name is responsible regardless of the source of facts or law. The review process requires personal attention.
For the judge, the order itself requires personal attention. It is, ultimately, the judge's order. This remains whether it relies on law and analysis of a party seeking an outcome, is the result of some law clerk's foundational work, or is the judge's personal research and drafting. The end product is the judge's, and neither AI nor clerk involvement changes that.
For us all, the lesson must be that tasks may be delegated, but responsibility cannot. As important, the impact of errors may be significant in the time and effort of others. This may be in lawyers redoing research and amending filings or in judges reconsidering and issuing amended orders. In either case, open and clear correction with acknowledgement of mistakes or errors is the appropriate path.
