Private Law Theory

ABSTRACT
This article applies Roland Barthes’s theory of the death of the author to the question of whether generative AI will replace lawyers. Drawing on postmodern theories of authorship — including Barthes, Foucault, Vygotsky, and Bakhtin — it first demonstrates that legal writing, like all writing, is culturally derived and multiply authored, such that a generative AI system like Harvey might appear to function as a scriptor of law on par with human practitioners. The article then challenges that conclusion through JL Austin’s speech act theory, arguing that the lawyer is not merely an author but a do-er of law whose performative utterances require rhetorical personhood — the authority, intentionality, and felicity conditions that Harvey cannot satisfy. Because generative AI cannot meet Austin’s doctrine of infelicities, its legal utterances are either void or abused, stripping them of performative force. The article concludes that while AI may supplant the lawyer as mere author or scriptor, the happily performative legal practitioner — one who attests, moves, reasons, and reviews with the requisite authority and intent — remains irreplaceable, and calls on legal rhetoric scholars to further define and defend the contours of that rhetorical personhood.

Head, Lindsay, The Death of the Lawyer Authorship, Artificial Intelligence, and Rhetorical Personhood in the Practice of Law (August 2, 2025).