Participatory Law Scholarship as Demosprudence

*Kempis Songster is a Transformative Healing and Restorative Justice Manager at the Campaign for the Fair Sentencing of Youth. Rachel López is the James E. Beasley Professor of Law at Temple University Beasley School of Law. Gerald Torres is a Professor of Environmental Justice at the Yale School of the Environment and a Professor of Law at Yale Law School. The authors are grateful to Lia Knox-Hershey for her tremendous research assistance. The authors are also indebted to the editors of the Virginia Law Review for all the time, energy, and intellect they poured into the symposium. In particular, we would like to thank Biruktawit Assefa for her pathbreaking vision for this symposium, Dennis Ting for his thoughtful planning of all aspects of the symposium, and Briana Woody for her expert edits to this piece.Show More

Through participatory law scholarship (“PLS”)—legal scholarship written in collaboration with those without formal legal training but expertise in law’s injustice through lived experience—Kempis Songster and Rachel López seek to dismantle the walls upon walls that divide the ideals of law from its lived experience. Building from the experience of coauthoring Redeeming Justice, their award-winning article, and drawing from the expertise of Gerald Torres, a leading scholar in critical race theory and law and social movements, this Essay explores the role that participatory methods in legal scholarship can play in democratizing the law and enhancing the practice of democracy. PLS democratizes the law by making it more accessible to non-lawyers and facilitating greater participation in the process of making legal meaning. This Essay situates PLS within the framework of “demosprudence”—a concept developed by Torres that examines how ordinary people, often acting collectively, participate in making legal meaning by shifting societal narratives that inform the law. We argue that legal scholarship is both a venue for studying this phenomenon and also a site for demosprudential genesis.

Specifically, at a time when democracy is facing a stress test that threatens the premises upon which it is based, PLS is one method for addressing the alienation between law and society that is in part to blame for the renewed rise of authoritarianism. The technicalities of the law often make non-lawyers feel disconnected from it and encourage apathy towards it as a vehicle of social change. This mystification of the law inhibits organizing and undermines democracy, because it alienates most of society from law’s creation. Traditional legal scholarship sometimes aids and abets this disconnection from the law by favoring a doctrinal focus that can feel so detached from how the law operates on the ground that it is rendered irrelevant to those who experience it most intimately. By contrast, PLS aims to center experiential knowledge as a source of legal expertise such that those for whom the law is most consequential can see themselves reflected in it and know that they are and can be a part of making legal meaning. PLS strives to ensure that people formally educated in the law are not the only people who can engage with legal scholarship and the development of legal theory. Ultimately, PLS seeks to democratize legal knowledge production by validating alternative ways of knowing the law and articulating what changes are needed for the law to realize its full potential.

Introduction

As we face an election that promises to shape the future of our democracy, recent polls suggest that our country is in trouble. Most Americans have a rather dismal view of the state of justice in the United States. They lack trust in our courts and public institutions and have little to no confidence in any branch of our government.¹ 1.Charles Franklin, New Marquette Law School National Survey Finds Approval of U.S. Supreme Court at 40%, Public Split on Removal of Trump from Ballot, Marq. L. Sch. (Feb. 20, 2024), https://law.marquette.edu/poll/2024/02/20/new-marquette-law-school-national-sur‌vey-finds-approval-of-u-s-supreme-court-at-40-public-split-on-removal-of-trump-from-ball‌ot/ [https://perma.cc/5YPQ-P8HN] (finding that only 40% of Americans approve of the U.S. Supreme Court, and that most Americans also lack confidence in the presidency, Congress, and the Department of Justice).Show More Moreover, approximately 83% of Americans believe that elected officials do not care what people like them think, and around 32% support some form of authoritarian governance.² 2.Richard Wike et al., Pew Rsch. Ctr., Representative Democracy Remains a Popular Ideal, but People Around the World Are Critical of How It’s Working 15 (Feb. 28, 2024), https://www.pewresearch.org/global/wp-content/uploads/sites/2/2024/02/gap_2024.02.28_de‌mocracy-closed-end_report.pdf [https://perma.cc/7MHN-LACY]; Laura Silver & Janell Fetterolf, Who Likes Authoritarianism, and How Do They Want To Change Their Government?, Pew Rsch. Ctr. (Feb. 28, 2024), https://www.pewresearch.org/short-reads/2024‌/02/28/who-likes-authoritarianism-and-how-do-they-want-to-change-their-government/ [https://perma.cc/BV59-4KQP].Show More These statistics reveal that most people in the United States feel unrepresented in democratic systems and disillusioned by the law and the legal actors who enact and interpret it.

At a time when democracy is facing a serious stress test, the legal academy has often compounded society’s alienation from the law and its institutions, producing legal scholarship that is described as irrelevant and hardly read outside of the closely guarded gates of academia.³ 3.See, e.g., A Conversation with Chief Justice Roberts, C-SPAN (June 25, 2011), https://www.c-span.org/video/?300203-1/conversation-chief-justice-roberts [https://perma.cc‌/CXE5-KBQE] (“Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria or something, which I’m sure was of great interest to the academic that wrote it but isn’t of much help to the bar.”); Adam Liptak, When Rendering Decisions,Judges Are Finding Law Reviews Irrelevant, N.Y. Times (Mar. 19, 2007), https://www.nytimes.com/2007/03/19/‌us/19bar.html [https://perma.cc/4W8J-VZN9]; Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34, 34–36 (1992).Show More This account of irrelevance is more than mere perception. Empirical data also suggests that most legal scholarship has little influence outside the academy.⁴ 4.Jeffrey L. Harrison & Amy R. Mashburn, Citations, Justifications, and the Troubled State of Legal Scholarship: An Empirical Study, 3 Tex. A&M L. Rev. 45, 55, 83 (2015).Show More Indeed, because courts so rarely cite them, law review articles have been analogized to roads that lead to nowhere.⁵ 5.Id. at 83.Show More

Over the last four years, Kempis Songster and Rachel López have been charting an alternative course for legal scholarship, envisioning it as a vehicle for bridging the divide between law and the society subject to it. This divide is partly to blame for the renewed rise of authoritarianism. Throwing aside many of the conventions of legal scholarship, we have been building, word by word, a rebellious form of legal scholarship—one in which legal elites are not the only ones to inform the making of legal meaning on the pages of law journals.⁶ 6.We use the term “rebellious” as a nod to Gerald López’s concept of rebellious lawyering, a model of lawyering which aims to center community activism and empowerment.See Gerald P. López, Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice 38 (1992).Show More Instead of being a product of legal academics alone, Participatory Law Scholarship (“PLS”) is written in collaboration with those who have not been formally trained in the law but who have expertise in law through bearing the bluntest consequences of its injustice.⁷ 7.Rachel López, Participatory Law Scholarship, 123 Colum. L. Rev. 1795, 1798 (2023).Show More

This symposium and accompanying Essay present an opportunity to collaborate with another rebellious thinker, Gerald Torres, who, along with Lani Guinier, developed a concept deeply connected to PLS called demosprudence.⁸ 8.Lani Guinier, Courting the People: Demosprudence and the Law/Politics Divide, 127 Harv. L. Rev. 437, 442 (2013) [hereinafter Guinier, Courting the People] (describing demosprudence as a term coined by Gerald Torres and Guinier to “describe the process of making and interpreting law from an external—not just internal—perspective [that] emphasizes the role of informal democratic mobilizations and wide-ranging social movements that serve to make formal institutions, including those that regulate legal culture, more democratic”).Show More Demosprudence is the study of how ordinary people, acting collectively, make legal meaning by shifting societal narratives that inform the law.⁹ 9.Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 Yale L.J. 2740, 2743, 2755 (2014) [hereinafter Guinier & Torres, Changing the Wind] (explaining that demosprudence involves “an analysis of how social power circulates and finds its expression in law” and of “the collective expressions of resistance (whether through counter-narratives or paradigm-shifting mobilizations) that test the democratic content of the formal institutions of lawmaking studied by jurisprudents and legisprudents”).Show More As a genre of legal scholarship, it seeks to “understand, analyze, and document those social movements that increase the extant democratic potential in our polity, and which do so in a way that produces durable social and legal change.”¹⁰ 10.Id. at 2749.Show More In developing this canon, Torres and Guinier argue that lawmaking and interpretation should not just be an endeavor for legal elites; rather, it should be and, in fact, already is influenced by non-legal actors and social movements.¹¹ 11.Guinier, Courting the People, supra note 8, at 442.Show More

Thinking alongside Torres, in this Essay, we explore the democratizing features of PLS, delineating its connections to demosprudence. Part I of this Essay elucidates the unifying philosophy that binds PLS and demosprudence. Like demosprudence, PLS recognizes and values the role that individuals who are not legally trained can play in informing the making of legal meaning and democratizing the law.¹² 12.López, supra note 7, at 1820 (“PLS charts a path to developing a more holistic and democratic account of law through collaboration with nonlawyers who intimately know the law by their experience of its injustice.”).Show More In addition to sharing common principles and aspirations, Part II explains how PLS operationalizes demosprudence, creating a new venue for democratic dialogue and norm generation. For this reason, we identify PLS as a form of demosprudential praxis. In Part III, Kempis Songster, the participatory legal scholar who coauthored Redeeming Justice, the law review article that gave birth to PLS, describes how PLS operated as demosprudence in action for the movement he founded.¹³ 13.Terrell Carter, Rachel López & Kempis Songster, Redeeming Justice, 116 Nw. U. L. Rev. 315, 318–19, 324–35 (2021) [hereinafter Carter et al., Redeeming Justice].Show More He explains how Redeeming Justice helped to catalyze an international coalition to concretize the right to redemption—a right which he and others serving life without parole (“LWOP”) conceptualized while behind bars—within international human rights law.¹⁴ 14.For more information about this international coalition and their fight to recognize death by incarceration as a violation of human rights, see Death by Incarceration Is Torture, https://www.deathbyincarcerationistorture.com [https://perma.cc/2FXA-PZXE] (last visited Sept. 1, 2024).Show More

1.  Charles Franklin, New Marquette Law School National Survey Finds Approval of U.S. Supreme Court at 40%, Public Split on Removal of Trump from Ballot, Marq. L. Sch. (Feb. 20, 2024), https://law.marquette.edu/poll/2024/02/20/new-marquette-law-school-national-sur‌vey-finds-approval-of-u-s-supreme-court-at-40-public-split-on-removal-of-trump-from-ball‌ot/ [https://perma.cc/5YPQ-P8HN] (finding that only 40% of Americans approve of the U.S. Supreme Court, and that most Americans also lack confidence in the presidency, Congress, and the Department of Justice). ↑
2.  Richard Wike et al., Pew Rsch. Ctr., Representative Democracy Remains a Popular Ideal, but People Around the World Are Critical of How It’s Working 15 (Feb. 28, 2024), https://www.pewresearch.org/global/wp-content/uploads/sites/2/2024/02/gap_2024.02.28_de‌mocracy-closed-end_report.pdf [https://perma.cc/7MHN-LACY]; Laura Silver & Janell Fetterolf, Who Likes Authoritarianism, and How Do They Want To Change Their Government?, Pew Rsch. Ctr. (Feb. 28, 2024), https://www.pewresearch.org/short-reads/2024‌/02/28/who-likes-authoritarianism-and-how-do-they-want-to-change-their-government/ [https://perma.cc/BV59-4KQP]. ↑
3.  See, e.g., A Conversation with Chief Justice Roberts, C-SPAN (June 25, 2011), https://www.c-span.org/video/?300203-1/conversation-chief-justice-roberts [https://perma.cc‌/CXE5-KBQE] (“Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria or something, which I’m sure was of great interest to the academic that wrote it but isn’t of much help to the bar.”); Adam Liptak, When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant, N.Y. Times (Mar. 19, 2007), https://www.nytimes.com/2007/03/19/‌us/19bar.html [https://perma.cc/4W8J-VZN9]; Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34, 34–36 (1992). ↑
4.  Jeffrey L. Harrison & Amy R. Mashburn, Citations, Justifications, and the Troubled State of Legal Scholarship: An Empirical Study, 3 Tex. A&M L. Rev. 45, 55, 83 (2015). ↑
5.  Id. at 83. ↑
6.  We use the term “rebellious” as a nod to Gerald López’s concept of rebellious lawyering, a model of lawyering which aims to center community activism and empowerment. See Gerald P. López, Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice 38 (1992). ↑
7.  Rachel López, Participatory Law Scholarship, 123 Colum. L. Rev. 1795, 1798 (2023). ↑
8.  Lani Guinier, Courting the People: Demosprudence and the Law/Politics Divide, 127 Harv. L. Rev. 437, 442 (2013) [hereinafter Guinier, Courting the People] (describing demosprudence as a term coined by Gerald Torres and Guinier to “describe the process of making and interpreting law from an external—not just internal—perspective [that] emphasizes the role of informal democratic mobilizations and wide-ranging social movements that serve to make formal institutions, including those that regulate legal culture, more democratic”). ↑
9.  Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 Yale L.J. 2740, 2743, 2755 (2014) [hereinafter Guinier & Torres, Changing the Wind] (explaining that demosprudence involves “an analysis of how social power circulates and finds its expression in law” and of “the collective expressions of resistance (whether through counter-narratives or paradigm-shifting mobilizations) that test the democratic content of the formal institutions of lawmaking studied by jurisprudents and legisprudents”). ↑
10.  Id. at 2749. ↑
11.  Guinier, Courting the People, supra note 8, at 442. ↑
12.  López, supra note 7, at 1820 (“PLS charts a path to developing a more holistic and democratic account of law through collaboration with nonlawyers who intimately know the law by their experience of its injustice.”). ↑
13.  Terrell Carter, Rachel López & Kempis Songster, Redeeming Justice, 116 Nw. U. L. Rev. 315, 318–19, 324–35 (2021) [hereinafter Carter et al., Redeeming Justice]. ↑

14.  For more information about this international coalition and their fight to recognize death by incarceration as a violation of human rights, see Death by Incarceration Is Torture, https://www.deathbyincarcerationistorture.com [https://perma.cc/2FXA-PZXE] (last visited Sept. 1, 2024). ↑