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Teaching to the Tech: Law Schools and the Duty of Technology Competence

Brescia, Raymond H., Teaching to the Tech: Law Schools and the Duty of Technology Competence (February 16, 2023). Washburn Law Journal, Forthcoming, Available at SSRN: “As a result of a wide range of emerging technologies, the American legal profession is at a critical inflection point. Some may argue that lawyers face dramatic threats not only to their business models but also to their very usefulness in the face of new technologies that may mean some form of legal guidance will be available to virtually every American with a little bit of computer savvy and access to digital technologies. At the same time, in recent years, the profession has largely imposed upon itself a duty of technology competence, which imposes an array of obligations regarding the use and proliferation of new practice technologies. Since lawyers are obligated to maintain this duty of technology competence, law schools should also have an obligation to teach technology competence as a core professional skill. Even with the significant changes that are likely afoot in the legal profession on account of the emergence of new technologies, a duty on lawyers to maintain technology competence, and the likely burden on law schools to prepare students for it, the precise contours of this duty of technology competence are themselves hardly defined. To understand the full scope and potential consequences of the likely impact of technologies on the American legal profession, we should consider another point in its history, another inflection point, where technology had dramatic effects on the practice of law: the last decades of the nineteenth century. Then, technology impacted all aspects of practice—not only the means by which lawyers practiced their craft, but also the type of work they did and the subject matter of that work. In this Essay, I explore the contours of a robust duty of technology competence, what I call a thick version of that duty. As part of this exploration, I describe efforts of law schools from across the country that are teaching different aspects of this broader duty. I also attempt to set forth a program for law schools moving forward that will impart in all law students a muscular version of technology competence. Such a version will prepare them to practice not just today, but also tomorrow and for the rest of their professional lives.”

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