Can We Do Without Legal Scholars? The Case for Second Scholarship in Legal Research

On the standard positivist account, the criteria of legal validity are constituted by the practice of officials, but the interpretive competences that those officials exercise are acquired and reproduced largely through the scholarship on which jurists are trained. That scholarship is itself formed under specific conditions, like possessing tacit legal knowledge, belonging to an interpretative community, having a personal commitment to assertions for which an author answers, and reading each part of a text in light of the whole, and the whole in light of its parts. We argue that if scholars delegate to AI the very activities through which these competences are exercised and transmitted, the legal system risks circulating increasingly derivative representations of doctrine that ever fewer participants have learned to defend or recognize as sound.