Fifth Circuit

The Fifth Circuit made national headlines when it voted NOT to adopt a mandatory AI disclosure rule — making it one of the few circuits to explicitly reject the idea. But that vote doesn't tell the whole story. The Fifth Circuit's district courts, particularly in Texas, have been among the most innovative in the country on AI regulation, with Judge Brantley Starr of the Northern District of Texas issuing what's widely considered the first standing order on AI in federal courts.

Covering Louisiana, Mississippi, and Texas, the Fifth Circuit is a jurisdiction where individual judges have driven the conversation while the circuit bench has declined to impose top-down mandates. Mississippi added its own wrinkle when a judge acknowledged that court staff used AI to draft a flawed order.

The Fifth Circuit's Decision to Reject Mandatory Disclosure

In a significant departure from the national trend, the Fifth Circuit Court of Appeals voted against adopting a mandatory AI disclosure requirement for appellate filings. The circuit's judicial council considered the proposal and determined that existing rules of professional conduct — particularly duties of candor and competence — were sufficient to address AI use. This was a deliberate policy choice, not an oversight. The Fifth Circuit's reasoning reflects a conservative judicial philosophy: don't create new rules when existing ones already cover the conduct. But the practical effect is that attorneys filing appeals in the Fifth Circuit face no circuit-level AI disclosure obligation.

Judge Brantley Starr's Pioneering Standing Order

Judge Brantley Starr of the Northern District of Texas issued what's widely recognized as the first federal standing order addressing AI in court filings. His order requires all attorneys to certify that no portion of their filings was drafted by generative AI, or if AI was used, that a human verified every citation and legal assertion. The order was issued in mid-2023 and quickly became a model for judges across the country. Judge Starr's approach was notable for its specificity — he didn't just say 'be careful with AI,' he required an affirmative certification. Multiple other NDTX judges adopted similar language, and the order influenced standing orders in districts across all circuits.

Mississippi's AI-Drafted Court Order Controversy

Mississippi produced one of the most embarrassing AI incidents in the federal judiciary when a judge acknowledged that court staff had used AI to help draft an order — and the order contained errors. The incident raised fundamental questions about AI use by courts themselves, not just by attorneys. If judges and their clerks are using AI tools, who's responsible for verification? The situation prompted calls for internal judicial AI policies and highlighted the double standard of requiring attorney disclosure while courts themselves lacked transparent AI protocols. For practitioners in Mississippi, the incident is a reminder that AI compliance is a two-way street.

Texas District Courts: A Patchwork of Rules

Texas has four federal judicial districts, and AI disclosure requirements vary dramatically among them. The Northern District (Dallas) has the most robust requirements thanks to Judge Starr and his colleagues. The Southern District (Houston) has several judges with AI-specific standing orders but no district-wide policy. The Eastern District (Tyler/Marshall) — the nation's busiest patent litigation venue — has been surprisingly quiet on AI disclosure despite the high-stakes nature of patent cases. The Western District (San Antonio/Austin) has a mix of approaches. Louisiana's federal courts have been less active, though the Eastern District of Louisiana has seen AI issues arise in maritime and energy litigation.

Practical Guidance for Fifth Circuit Practitioners

Despite the circuit's rejection of mandatory disclosure, here's what smart practitioners are doing: First, always check individual judge standing orders in Texas — the patchwork of requirements means one judge might demand full AI certification while the judge next door has no requirements. Second, treat Judge Starr's standing order as a best-practices template even when filing before other judges. Third, in Mississippi, be aware that court-generated orders might contain AI artifacts — verify opposing arguments and court orders with the same rigor you apply to your own AI-assisted work. Fourth, for Fifth Circuit appellate filings, voluntary disclosure still makes strategic sense even though it's not required — it builds credibility with clerks and judges who are aware of AI issues. Fifth, document your AI workflows for client audit purposes, since Texas's business-friendly environment means corporate clients increasingly demand AI transparency from outside counsel.

The Bottom Line: The Fifth Circuit explicitly rejected mandatory AI disclosure, but that doesn't mean practitioners can ignore AI compliance. Judge Starr's pioneering NDTX standing order set the national standard, Mississippi's AI-drafted order controversy exposed judicial-side risks, and the Texas district court patchwork means you need to check every judge's rules. The circuit said no to mandates — it didn't say AI misuse is acceptable.