By Kevin Fraizer[1]
The Age of AI will demand more from fewer lawyers. Emerging technologies have already demonstrated the capacity to chip away at the foundation of the rule of law, our legal systems, and our social order. Lawyers who relied on AI to write their briefs gave the public cause to question the ethics and expertise of the profession.[2] Courts have struggled to assess the reliability of evidence in light of the spread of deepfakes—yet another source of instability and public skepticism.[3] Regulators have failed to heed calls for safeguards against potentially destructive technologies.
Collectively, AI and related innovations are best characterized as socially disruptive technologies that, if left unchecked, can upend the systems, structures, and norms that foster stability and predictability across society.
Do lawyers have an obligation to respond to threats to the social order?
The short, easy, and (currently) correct answer is, “No.” Which begs a follow-up question, “Should they?” I think so.
The short, easy, and correct answer requires little explanation. The Model Rules of Professional Conduct, which have been adopted by most states,[4] impose few society-based obligations on lawyers. Sure, the Rules assign lawyers with a “special responsibility for the quality of justice,” but that’s only when they act in their personal capacity as a “public citizen.” [5] Though “quality of justice” is vague, it would take a creative interpretation to suggest that lawyers have a responsibility to proactively guard the rule of law and legal system upon which justice relies.
The Rules likewise encourage lawyers to “further the public’s understanding of and confidence in the rule of law and the justice system” [6] However, that’s a different thing than imposing a requirement on lawyers to identify and mitigate threats to the administration of law.
Absent from the Rules is any explicit obligation to think about the downstream effects of representing or advising clients pursuing work that may pose existential threats to the legal system itself. Of course, a lawyer “may” withdraw from such representation if the client “insists upon taking action the lawyer considers repugnant or with which the lawyer has a fundamental disagreement” or if “other good cause” exists,[7] but this permissive language inadequately squashes the temptation to represent the most powerful (well-paying) clients, especially when lawyers likely lack the background knowledge necessary to evaluate the risks posed by a client’s work.
To answer, “should lawyers as a profession respond to threats to the rule of law?” I need to first dispel an assumption and then make a few of my own.
People may assume that the functions of the law and the nature of the legal profession have remained fixed, more or less, over time. That’s not the case. The functions of the law have changed in response to societal conditions, such as economic, political, technological, and cultural shifts. In turn, legal education, legal services, and the principles guiding the legal profession have as well. Famed legal scholar Roscoe Pound identified five such epochs:[8]
(1) keeping peace in a given society during the stage of primitive kin organization;
(2) preserving the status quo during the era of the Greek city-state and in Roman and medieval times;
(3) making maximum free self-assertion possible during the Renaissance;
(4) satisfying wants in the twentieth century; and
(5) satisfying social wants in modern times.
Pound sweeps with a broad brush that lends his analysis to attack by historians and legal scholars, but the important thing isn’t to pinpoint exactly how and when the law changed, only to establish that it is prone to do so. As summarized by George Paton, author of A Textbook of Jurisprudence, “The law of any period serves many ends, and those ends will vary as the decades roll by.” [9] On the whole, the law morphs as necessary to “contribute to the maintenance of social order,” according to Harold Berman.
The stability of the social order also orients the legal profession, which must adjust legal education and practice to develop a profession suited to the preservation of that order. This dynamic is not a secret. Back in 1941, Karl Llewellyn and E. Adamson Hoebel noted that “law-jobs entail such arrangement and adjustment of people’s behavior that the society remains a society and gets enough energy unleashed and coordinated to keep on functioning as a society.” [11]
Are we entering a new legal epoch?
In this case, the short answer is “Yes.” A few assumptions, if accepted, demonstrate why the law and legal profession must evolve.
First, we’re indeed living at the “hinge of history.” [12] In other words, the decisions made by humans today and in the coming years may alter the trajectory of our species for centuries, if not longer. Contemporary society stands at the furthest point along a “seemingly inexorable trend toward higher levels of complexity, specialization and sociopolitical control,” per Joseph Tainter, leaving us with the collective power to shape the future.[13]
Second, this crucial period of influence will persist as we develop more powerful technologies, become more interconnected as a species, and forgo making choices today that would defer important decisions to future generations. In brief, given our substantial and enduring power over the future, we need new social structures and norms to wield that power in a way that secures the social order.
Third, the law and legal profession are not immune to the effects of socially disruptive technologies. Technological progress will change legal services by automating several tasks. Thomson Reuters suggests the following tasks may disappear from legal practice sooner than later: contract drafting and review, document filing, legal research, legal compliance, due diligence, IP protection, document retrieval, and document creation.[14] Lawyers must not ignore the fact that their societal value will increasingly come from a set of smaller and smaller, but important skills.
In this new legal epoch, what ends should guide the law and the legal profession?
Based on our assumptions, the primary aim of the law in the coming decades as well as for the foreseeable future must be to avoid instability by protecting the social order. This is no easy task. The accumulation of ever more complex systems of governance, exchange, and social interaction has exposed the vulnerabilities of many stabilizing institutions.[15]
The stability of our domestic and international social order depends, in part, on legal systems and professionals responding to emerging technologies,[16] diminished trust in governing institutions,[17] persistent and dire famines, inequality, climate change, mass migration, and geopolitical tensions.
Avoiding instability requires realizing some broad goals, but two standouts as essential: governing institutions must have the flexibility and resources to timely respond to threats; and individuals and groups must retain social resilience—defined by our capacity to collaborate and collectively solve problems.
Why should lawyers have such a major role in realizing those broad goals?
The study of law needs to become “the study of mechanisms of social governance,” a transition recommended by Professor Thomas Ulen.[18] In some ways, this transition is already underway and was a long time coming.
Back in the 1950s, Henry Hart and Albert Sacks observed that “[a] framework of law–that is, a legal order–encloses and conditions everything people living in an organized society do and do not do.” In turn, they framed lawyers as “an architect of social structures,” who must become experts in the “design of frameworks of collaboration for all kinds of purposes[.]”
Decades later, Ulen picked up that thread.[20] He argues that the rise of “Law and Economics” within legal education institutions and among legal scholars signaled a shift to law as a predominantly interdisciplinary field. The integration of legal and economic studies revealed a fundamental change in the nature of legal inquiry. He maintains that “our understanding of the law will [now] be advanced most adventitiously by bringing to bear whichever social, behavioral, and natural sciences help us to understand how best to govern ourselves.”[21] Hart and Sacks likewise argued for a legal practice oriented around the future–equating lawyers to “specialist[s] in the high art of speaking to the future[.]”[22]
A focus on social governance would introduce law students to “all the procedures and institutions we use to advance our individual, familial, and collective aims.”[23] Sounds timely, right?
Ulen acknowledges that this transition would necessitate a big shift in legal education but lawyers must rise to the occasion because, as explained by Ulen, “there is no discipline other than law in the modern research university that would be so bold as to stride across disciplinary boundaries in search of insights useful to answering questions regarding social governance.”[24] As set forth by Jay Kesan of the University of Illinois, “[t]here is a clear need for professionals who are both educated and have professional work experience in science/technology and in law.”[25] This transition, though, cannot amount to just a tweak—Ulen insists that the transition must go beyond “law-and-(some other single discipline) to law-and-all-other-scholarly-knowledge.”[26]
Educating Architects of Social Structures
Law schools do not currently have the faculty nor the course offerings sufficient to educate Architects. Relatively small changes regarding who attends law school and what they learn and experience through their studies could create the necessary educational infrastructure. Generally, law schools ought to orient their student bodies and course offerings around one guiding principle: interdisciplinarity.
The legal profession cannot realize its potential as “Architects of Social Structures” by treating the study of law as its own discipline. Hart, Ulen, and others make clear that the study of the law must include the study of the fields inevitably affected by the law. To expedite this interdisciplinary approach to legal education, law schools should strive to create student bodies with expertise in a wide range of fields.
In the short run, schools should prioritize admitting students with undergraduate STEM backgrounds. Harvard Law School, recognizing the increasingly intersectional, interdisciplinary role of lawyers started down this path a decade ago. As of 2016, its efforts had proven moderately successful: STEM-focused students made up about 12 percent of the admitted class that cycle.[27]
In the long term, schools should explicitly recruit individuals with a master’s level of education or greater in STEM fields. Professor Pierre Larouche hypothesizes that students with even a year of graduate education in a STEM field will be able to meaningfully participate in a core part of the next generation of legal education—namely, “joining multi-disciplinary teams and interact[ing] with colleagues from other disciplines.”[28] Through such teams, Larouche anticipates that students will see the value of interdisciplinary dialogue and realize that collaboration with other disciplines will “enrich” their respective fields.[29]
Until most legal skills have been automated, however, there’s still a case for students undergoing the contemporary “J.D.” education. So not every student should be required to have such background or to develop it during law school.
However those hoping to earn a Doctorate in Social Architecture (or whatever degree this new generation of lawyer earns) must demonstrate “basic competence” in a range of different fields to join the ranks of a new kind of lawyer. Students will not develop the requisite competencies if their interdisciplinary education amounts to “periodically dating” someone in that field; Ulen calls for legal education providing “sustained and marriage-like interactions” with other disciplines.[30] In other words, students who learn to merely collaborate with scholars in other fields will become lawyers unable to fill the duties of an Architect.
Law professors themselves can lean into this interdisciplinary mindset as well. For instance, legal scholars can seek out interdisciplinary conferences, collaborate on scholarship with scholars in other fields, and create and contribute to interdisciplinary journals. Thankfully, the transition to a new “typical” law professor may already be underway. Both Ulen and Judge Richard Posner independently detected an uptick in the diversity of fields represented by the legal academy.
Administrators can help faculty conduct more interdisciplinary work by developing new incentive structures and career paths—the current approach, in which “bring a productive scholar in one discipline is a far safer route than being a productive scholar (or innovator) across disciplines”—will not suffice. These tweaks, though, should only be a temporary strategy to motivate pre-existing faculty members. In time, the “typical” law professor will need to have a very different profile if students are going to receive adequate training in scholarly consolidation and collaboration.
Conclusion
The Age of AI has exposed the stagnant nature of legal education and the outdated aspirations of the profession. Despite the practice of law changing drastically and the needs of society shifting, “[w]e teach law today in an almost indistinguishable way from how it was taught fifty years ago,” explains Ulen;[31] and, we remain committed to focusing our services on client, rather than, communal needs.
Whereas Ulen moderated his pleas for a pivot by specifying that he was not advocating for “root-and-branch reform,”[32] I’d argue that the Age of AI demands just that—an honest and inclusive conversation about the purpose of the legal profession in our modern era that leads to immediate reforms. Anything short of immediate change will leave the profession unable to help reduce instability and protect the social order.
Lawyers occupy a privileged position in society and, consequently, have an obligation to use their influence and skills in ways that mitigate societal threats. Though trust in the legal profession has been higher, laypeople still look to lawyers to solve problems big and small. Though other professionals have more expertise in the most critical scholarly fields, lawyers have the unique opportunity to help consolidate that expertise and leverage it defense of the social order.
If we do not start discussing what society in 2100 will require of lawyers, then we will fail to train those lawyers. I hope this piece sparks some of those conversations and pushes more lawyers to ask what obligations the profession has to our collective well-being today and into the future.
[1] Kevin Frazier is an Assistant Professor at the St. Thomas University College of Law and a Research Affiliate at the Legal Priorities Project. Frazier earned a Master of Public Policy from the Harvard Kennedy School and a JD from the UC Berkeley School of Law. Send feedback to kfrazier2@stu.edu.
[2] Lyle Moran, Lawyer cites fake cases generated by ChatGPT in legal brief, Legal Dive (May 30, 2023), https://www.legaldive.com/news/chatgpt-fake-legal-cases-generative-ai-hallucinations/651557/
[3] Shannon Bond, People are trying to claim real videos are deepfakes. The courts are not amused, NPR (May 8, 2023), https://www.npr.org/2023/05/08/1174132413/people-are-trying-to-claim-real-videos-are-deepfakes-the-courts-are-not-amused
[4] About the Model Rules, American Bar Association (accessed Aug. 2, 2023), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/
[5] Model Rules of Prof’l Conduct Preamble.
[6] Id.
[7] Id. at R. 1.16.
[8] Roscoe Pound, An Introduction to the Philosophy of Law, ch. 2, The End of Law 25-47 (1954).
[9] George Paton, A Textbook of Jurisprudence 86 n.3 (3d ed. 1964).
[10] Harold J. Berman, The Nature and Functions of Law 31(1958).
[11] Karl Llewellyn & E. Adamson Hoebel, The Cheyenne Way 290 (1941).
[12] Richard Fisher, Could right now be the most influential time ever? Richard Fisher looks at the case for and against – and why it matters, BBC (Sept. 23, 2020), tps://www.bbc.com/future/article/20200923-the-hinge-of-history-long-termism-and-existential-risk
[13] Ben Ehrenreich, How Do You Know When Society Is About to Fall Apart?, N.Y. Times (Nov. 4, 2020), https://www.nytimes.com/2020/11/04/magazine/societal-collapse.html
[14] How legal workflow automation turns thousands of tasks into one, Thomson Reuters (May 23, 2023), https://legal.thomsonreuters.com/blog/how-automation-turns-thousands-of-tasks-into-one/
[15] See Ehrenreich, supra note 12..
[16] Christopher F. Chyba, New Technologies & Strategic Stability, 149 Daedalus 150 (2020), https://doi.org/10.1162/daed_a_01795
[17] David W. Oxtoby, Distrust, Political Polarization, and America’s Challenged Institutions, Am. Acad. of Arts & Sciences (2023), https://www.amacad.org/news/distrust-political-polarization-and-americas-challenged-institutions
[18] Thomas S. Ulen, The Impending Train Wreck in Current Legal Education: How We Might Teach Law as the Scientific Study of Social Governance, 6 Univ. St. Thomas L.J. 302 (2009).
[19] Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 174, 175 (Willaim N. Eskridge, Jr. & Phillip P. Frickey eds., 1994).
[20] See generally Ulen, supra note 17.
[21] Id. at 313.
[22] Hart & Sacks, supra note 18, at 176.
[23] See Ulen, supra note 17, at 314.
[24] Id. at 320.
[25] Jay Kesan, Bridges II: The Law-STEM Alliance & Next Generation Innovation, 112 N.W. U. L. Rev. 141, 141 (2018), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1255&context=nulr_online
[26] Ulen, supra note 17, at 320.
[27] Claire E. Parker, To Keep Pace with Tech, Law School Seeks STEM Students, Harvard Crimson (May 6, 2016), https://www.thecrimson.com/article/2016/5/6/HLS-admissions-STEM-recruiting/
[28] Jay Kesan, Bridges II: The Law-STEM Alliance & Next Generation Innovation, 112 N.W. U. L. Rev. 144, 145 (2018), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1255&context=nulr_online
[29] Id.
[30] Ulen, supra note 17, at 326.
[31] Id. at 329.
[32] Id. at 330.
Image Source: https://www.forbes.com/sites/bernardmarr/2020/01/17/the-future-of-lawyers-legal-tech-ai-big-data-and-online-courts/?sh=28d11630f8c4