Notice & Comment

Updating the Legal Profession for the Age of AI, by Kevin Frazier

Artificial intelligence (AI) is kryptonite to the Rule of Law. Where the Rule of Law demands “clear, general, publicly accessible rules laid down in advance,” advances in AI occur for unknown reasons, at unknown times, and with unknown effects. Where the Rule of Law requires prospective regulation, AI advances faster than the courts and Congress can handle. And, where the Rule of Law cautions against “unduly rapid changes in the law,” incidents caused by AI may necessitate immediate and substantial regulatory responses. How should lawyers–tasked with serving as “guardians” of the Rule of Law–respond? 

One wrong answer is to opt for the status quo. Another incorrect response is to incrementally nudge the legal community and its institutions toward being capable of litigating and adjudicating issues related to emerging technologies. The best answer (and the hardest one) is to make a siloed profession into an interdisciplinary one. Equipping advocates, administrators, and adjudicators to design responsive laws and adjudicate complex cases pertaining to emerging technologies lies beyond the reach of the typical generalist lawyer and judge who has rarely or never studied the underlying issues. That’s why transformational change throughout the legal community is required. Before exploring how that change may manifest, it’s important to see why the status quo and incremental alterations won’t suffice.

Let’s first cross off the status quo approach. Legal education, legal practice, and the judicial system can attempt to preserve the status quo and apply outdated theories, frameworks, and analogies for as long as possible. Given the scope, scale, and speed of AI innovation, this approach seems destined to cause a collapse in the efficacy and legitimacy of the legal profession and its institutions sooner than later. The limits of carrying on with traditional norms and expectations has already been made clear. Speaking from personal experience, law professors are unsure of how best to integrate generative AI tools into their classes and unprepared to fully explain the technical and practical aspects of those tools. Lawyers have misunderstood and misused AI tools. And, judges have long struggled to grok complex scientific and technological cases.

The second approach–to attempt to incrementally update law schools, law firms, and legal institutions as well as rules and regulations–also falls short. Many states appear to have adopted this approach. Governor Newsom of California, for instance, directed the state to form a partnership with UC Berkeley and Stanford to study the potential impacts of generative AI on California–presumably with the intent of that study leading to necessary policy changes. Similarly, the State Bar of California released guidelines for the use of generative AI tools as an “interim step” while the technology continues to evolve and improve. These small steps, however, are also destined to result in the legal community falling behind and falling short of its duty to sustain the Rule of Law in the face of novel threats. The inevitability of this outcome reflects its inattention to reorienting the legal community to become more interdisciplinary–a prerequisite for the maintenance of the Rule of Law in the Age of AI. 

Hence, the third and best option: accepting and acting on the fact that the legal community can no longer stay in its doctrinal silo. Lawyers must, among many other things, learn to “speak” engineer, interpret statistics, assess the accuracy and precision of new AI tools, and know enough to realize when they are officially out of their intellectual depth. All of these competencies necessitate (1) changing legal education, (2) updating professional norms and expectations, and (3) creating new legal institutions. Only by going to the roots of the legal profession, tearing them out, and planting the seeds of other disciplines will produce hybrid lawyers who can serve as Guardians of the Law.

How best to upend the legal community is a complex task. Here are three ideas for three key domains of the legal system–law schools, law firms, and courts–to help spark some overdue conversations about similar reforms.

  1. Students should spend their third year of law school studying the nexus of law and one other discipline. 

    Many reformers have previously discussed switching to a two-year legal program or proposed a more practice-centric curriculum in the third year. This suggestion differs in two ways: first, it would require students to select a specific secondary discipline to focus on for the entirety of the year. The alternative–allowing students to take a mishmash of law AND fill-in-the-blank courses–would render students jacks and jills of all trades but masters of none. In other words, the interdisciplinary year must push students toward a specific specialty in another discipline so that they can meaningfully participate in the development and application of law in that space. 
  2. Practicing lawyers–including litigators, lobbyists, and administrators–who engage in disputes and regulatory endeavors pertaining to a specific technical discipline must complete annual training and testing on that discipline. 

    This suggestion is not unprecedented. As discussed in more detail below, ethical scandals in the profession during the 1970s led the President of the California State Bar to evaluate subjecting all attorneys to ethics education and testing every five years to retain their license. A five-year testing period would not suffice with respect to assessing a lawyer’s comprehension of an emerging technology given the rapid pace of innovation. Of course, if that pace were to diminish, then the applicable bar could extend the time between certifications.
  3. Courts should have access to special masters or science advisers with expertise in the discipline in question and familiarity with the law. 

Though notable scholars such as Sheila Jasanoff have previously dismissed this effort for failing to address a related problem–“that the technical evidence presented for consideration is often inadequate, confused, and controversial,” that critique is logically flawed. It’s as if Jasanoff opposes putting a duct tape over a leak in a row boat because it won’t entirely stop the flooding. Science advisers can and should serve as one part of increasing the overall competency of the courts and legal profession more generally to litigate and adjudicate complex issues arising from emerging technology.

These changes will be difficult to realize but the legal community has taken on similar efforts before. In the wake of Watergate, for instance, the legal profession underwent changes from law school on. Following that scandal, many around the country believed that “if lawyers had acted differently during Watergate, the nation would have been spared the [resulting] trauma[.]” In fact, observers questioned if the professional rules of conduct in place at the time actively facilitated the problematic conduct at the heart of the scandal. Additional criticism was levied against law schools for their failure to imbue graduates with a clear ethical code prior to heading into practice. The profession did not opt for the status quo nor incremental change. Instead, law schools changed their curriculums, bar examiners added questions about ethics, and the ABA set out to revise the Model Code of Professional Responsibility.  

For the reasons outlined above, now’s the time for another proactive effort to alter the legal profession. Legal scholars can assist with this effort by introducing more interdisciplinary courses related to the governance of emerging technologies. To practice what I preach, here’s an open source template syllabus for a course on privacy and content moderation. This may not be much but it’s a seed that can grow into something larger so long as it receives sunlight (i.e. attention) and water (i.e. resources). Other professors can and should push their colleagues and administrators to get ahead of the inevitable transformation that will occur in the legal community. Likewise, policymakers and jurists can and should study how best to ensure they have the knowledge and institutional capacity required to maintain the Rule of Law in light of the regulatory challenges presented by AVs, AI, and the like. 

“Guardians” of the Rule of Law is a lofty title that comes with a lot of responsibilities. The legal community cannot accept the status quo nor settle for incremental changes given the rapid evolution and deployment of new technologies. This essay offers a few ideas for how best to adjust the community for the inevitable future. Other ideas are encouraged–after all, this is an all-hands-on-deck situation.  

Kevin Frazier is an Assistant Professor of Law at the St. Thomas University Benjamin L. Crump College of Law.

Print Friendly, PDF & Email