Winston Churchill once said about Russia: It is a riddle wrapped in a mystery inside an enigma. I’m starting to feel the same way about training young lawyers in the age of AI. How do we, as a profession, train law students and young lawyers with critical skill sets and thinking ability when so much can now be done with AI? It’s a continuing and critical question and our thinking needs to continually evolve.

I have written recently about some conclusions of economist Tyler Cowen about AI and the need for law schools to play a greater role in developing GenAI skills. Cowen’s conclusions and to some extent mine were that educational institutions like law schools need to double down on teaching students how to effectively use AI. I had some thoughts on the Socratic method and the use of adjunct practicing lawyer professors. This came on the heels of another article I did bemoaning the apparent lack of critical thinking skills as noted by several law librarians.

A Nuanced View

Now perhaps another nuanced view from an actual academician, Clay Shirky, the vice provost at New York University. Shirky recently wrote a guest essay for the New York Times entitled, Students Hate Them, Universities Need Them. The Only Real Solution to the AI Cheating Crisis. Shirky makes the point, “Learning is a change in long term memory: that’s the biological correlate of what we do in the classroom.” Similar to my discussion of the need for repetitive type work to allow young lawyers to begin to see patterns as they develop, Shirky says educational institutions need to move away from take-home assignments and essays and more toward “in class blue book essays, oral examinations, required office hours and other assessments that call on students to demonstrate knowledge in real time.”

Shirky debunks the notion that educational institutions can simply talk to students about how AI can disrupt their learning and that they should use it as a partner to help them learn. The truth, says Shirky is that despite all the talk about using AI to facilitate learning, students even the good ones were mostly taking the easy way out. In his article, he says:

We cannot simply redesign our assignments to prevent lazy A.I. use. (We’ve tried.) If you ask students to use A.I. but critique what it spits out, they can generate the critique with A.I. If you give them A.I. tutors trained only to guide them, they can still use tools that just supply the answers. And detectors are too prone to false accusations of cheating and too poor at catching lightly edited output for professors to rely on them.

So Shirky thinks institutions need to go back to in class work and oral discussion designed to show that students have learned something. And to move away from exclusive reliance on writing, at least outside a controlled classroom. He goes on to say that not many professors like this. And not many students do either.

What’s This Mean for Law Schools?

If he is right, this of course has implications for law schools. But law professors should have one advantage. U.S. law schools were built on the Socratic method: oral question and answer sessions with students in a classroom designed to get at their knowledge. At least that’s the ideal. The method, if used correctly, would be ideal for the kind of learning Shirky is talking about. Combined with other teaching methods like small group discussion, problem solving without the use of AI and active listening, could enhance the skills lawyers will actually need in the AI world.

But here’s the rub. Over time, law professors have been relying less and less on the Socratic method and moving to the type of large group lectures Shirky is bemoaning. The emphasis is more on writing and open book examinations that may indeed demonstrate some skill in using AI but not much else. To paraphrase Shirky, a student who cuts and pastes a legal research paper is enrolled in a cutting and pasting class, not a law school class. As one commentator put it in a Nebraska Law Journal article some time ago, “the traditional Socratic method is today more myth than reality because legal pedagogy has changed dramatically, and the Socratic method still common during the 1950s and 1960s is nearly extinct.”

It’s Just Too Damned Hard

Shirky talks about the reluctance of professors to do what he outlines. Why? I think because it’s just too damned hard. Giving the same lecture year in and year out is easy. Coming up with penetrating questions using the Socratic method and then analyzing the student’s answer for learning purposes isn’t so easy. It requires work, patience, and expertise. You have to ask questions that draw out what a student knows and how they approach a problem. You have to be able to ask follow-up questions. All without embarrassing or harassing students unduly.

Certainly, when I was in law school, there were some professors who were better at it than others. And indeed, some used it as a form of hazing: if I had to go through it, so do you. But let’s face it, when you practice law, you are going to get hard questions from judges, clients, and your adversaries.

When the Real Training Begins

And the learning doesn’t stop when you graduate from law school; in fact, some would say that’s when the real training begins. I have said for some time that law firms need to get serious about training. That’s even more critical and challenging now. If Shirky is right, firms need to work harder on mentorship programs. They need to train the trainer: senior lawyers need to learn how to mentor and train. They need more hands-on training that can’t be done exclusively with AI.

But Can We?

But all that takes time. Time that can’t be billed. It takes investment in the future for business models that often look only at the end-of-the-year numbers and distribute to the partners every drip and drop of profit.

I’m not sure we are ready for that. But the consequences if we don’t may mean we end up with a profession that’s no longer a profession and replaced by something else entirely. Where legal services are primarily provided not by skilled practitioners but by AI bots and robot lawyers.

Stephen Embry is a lawyer, speaker, blogger, and writer. He publishes TechLaw Crossroads, a blog devoted to the examination of the tension between technology, the law, and the practice of law.

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