Artificial Lawyering?

-- By AvanequePennant - 23 May 2025

The proliferation of artificial intelligence, especially in the legal industry has led to concerns as to what the future of the legal profession looks like. Artificial intelligence refers to computational systems with the capacity to perform tasks traditionally reserved for humans. Softwares are able to understand, generate and interpret human language. For the legal profession, this has meant that tasks traditionally requiring human engagement, from document drafting to discovery processes, have been altered by the use of artificial intelligence. As these models continue to develop and become integrated into the profession, the question has been will AI replace lawyering.

This essay responds to a slightly different question, however: can AI replace lawyering. Drawing upon one of the courses grounding pillars and Moglen’s legal career, I answer no. Reasons for this include the varying technicalities of how our legal system is structured as well as the value of innovation and creativity. Importantly, lawyers are not only functionaries of the legal system but also social actors whose choices and careers are embedded in and responsive to the needs, dynamics, and aspirations of the communities they engage with. Lawyers are guided by a theory of social action. Our decision to enter the profession is not an isolated or mechanical choice; rather, they are deeply rooted in broader social contexts and individual experiences. A lawyer guided by a theory of social action understands that every choice operates within a web of social meaning and consequence. AI, by contrast, operates through pattern recognition and statistical probability, lacking empathy, conscience, and the capacity to act ethically in the face of ambiguity. Although Holmes encourages us to understand the law as a system of organized predictions, lawyers must do more than predict outcomes.

For example, Anarchism Triumphant: Free Software and the Death of Copyright suggests that one example of a theory of social action is rooted in the reality that human creativity in digitally networked environments, thrives on freedom and collaborative sharing and is stifled by propertarian control. It prioritizes the liberation of creation and center user agency. Enabled by open source developments like the GPL, and unburdened by intellectual property-based restrictions, this theory posits that individuals engage in acts of collective production not for (or not only for) profit or prestige, but because it is fundamentally human to do so.

To see how lawyers mobilize around a theory of social action, we can look to Moglen’s representation of Phillip Zimmerman. In 1991, Zimmerman wrote Pretty Good Privacy (PGP)https://www.fortinet.com/resources/cyberglossary/pgp-encryption, a security program used to decrypt and encrypt email and authenticate email messages through digital signatures and file encryption. After the program became widely available overseas, the U.S. government began investigating Zimmerman for violating the Arms Export Control Act. The US Government has classified cryptographic software as a munition, citing its potential use for espionage and sedition. The law authorizes the President to control the import and export of defense articles and services. At the center of the criminal investigation were questions about the level of privacy that the American public should be entitled and the motivations behind government regulation in the export of cryptography. Ultimately, Zimmerman’s defense was grounded in the team’s values for publicly available, free software. Members of the defense team donated hundreds of hours to the defense because it was more than a case but rather a cause to which they were all dedicated. https://philzimmermann.com/EN/news/PRZ_case_dropped.html. Moglen explains in his article So Much for Savages: Navajo 1, Government 0 in Final Moments Navajo 1, Government 0 in Final Moments of Play of Play that “Naturally, once you grasp the mindset that has dominated the rulers of the American Empire since the end of the Second World War, this was too dangerous not to be illegal.” This understanding of the structural forces and institutional interests would have impacted the structure of Zimmerman’s representation, especially the inevitable nuances of protecting a citizen from their own government. AI is incapable of replicating not only the strategic creativity but also the passion and drive to defend the public’s right of access to free software. This direction comes from a theory of social action. Where the defense team recognized the law as a battleground for justice, AI can only see and respond to data. This difference is precisely what makes lawyering human.

My desire to pursue a legal career has been driven by my experiences as an immigrant navigating a society that, while immensely beneficial to my life trajectory, has at times been hostile. My middle school experience was undergirded by the very real and haunting presence of the school to prison pipeline and the reach of the surveillance state into our schools. My own theory of social action has centered using dance, mentorship and education to leverage my knowledge and experiences to uplift minority students. My goal has been to use legal frameworks as powerful tools to disrupt systemic inequalities in education. Can AI replace me? No. As an aspiring educational law attorney, I carry first hand experiences of arbitrary expulsion, censorship efforts, lack of educational resources, and zero tolerance policy. My experiences compel me to lead with empathy and advocate with a sense of urgency. Lawyering in this context, as in the free software movement and many others, requires lived insight, pursuit of clarity amidst nuisance and a rootedness in the importance of change for the communities who have been targeted by the institutions meant to serve them. AI cannot replicate that. It cannot ground advocacy in a reality of injustice. It cannot connect and build trust with communities. It cannot craft and pursue new avenues for the law. What it lacks is precisely what lawyering demands most: to develop and mobilize around a theory of social action.