Andrew Mamo (University of Cincinnati – College of Law), Advocates without Spirit, Counselors without Heart: Protecting Judgment in a Time of Calculation, Forthcoming, FIU Law Review on SSRN. Here is the abstract:
The legal profession faces two major pressures: AI-optimized practices promise frictionless efficiency, at great cost; political polarization turns adjudication into combat, without the possibility of unilateral disarmament. Together, they threaten to displace the role of judgment in legal practice.
This Article develops a novel framework for understanding legal conflict engagement across two dimensions: augmenting the commonplace distinction between public and private processes by further distinguishing between closure-oriented and generative modes of legal reasoning. The closure-oriented mode resolves problems within pre-existing analytical frames; the generative mode exercises situated judgment when no frame fits. These two distinctions yield four domains of conflict engagement.
This framework makes legible a transformation in lawyers’ professional imaginations. AI and efficiency pressures push closure into private forums; polarization makes generativity an increasingly public concern. What gets squeezed out are the domains that hold tension between these impulses: formal adjudication, which grounds the rule of law through principled and deliberate public closure; and relational governance, which enables genuine encounters across difference through patient private engagement. The result of evacuating these domains would be a legal system populated by advocates without spirit and counselors without heart, capable of optimization and combat but not judgment.
The Article offers four reorientations: using AI to defamiliarize rather than to efficiently perform legal work, rebuilding adjudication through inductive frame construction under conditions of dissensus, protecting private spaces for relational work, and reconceiving legal education around formation for judgment rather than the transmission of knowledge or technique. These are practices for holding open what these two pressures would foreclose.
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