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Foreword: Two Kinds of Participatory Legal Scholarship

Cross-pollination tends to improve legal writing.1 1.By “tends,” I mean that experiences of this kind can often improve a writer’s work-product, even if only slightly.Show More Examine an issue of a law review from fifty years ago and you will be struck at the stilted, inward-looking, formalistic, heavily-footnoted writing encapsulated in articles discussing other articles and cases that in turn rest on earlier cases for precedential value.2 2.See Richard Delgado, Groundhog Law, 21 J.L. Soc’y 1, 14–17 (2021) (describing how the imperative of citation to previous authors can hinder innovation).Show More Authors published in legal journals from that period cited law review articles almost exclusively, and only very rarely worked in other disciplines such as history, literature, or even economics.

Starting a few decades ago, this started to change as writers began creating new forms of legal scholarship, some of which were spurred by developments in other fields such as law and literature3 3.See generally James Boyd White, The Legal Imagination (45th Anniv. ed. 2018) (a foundational text of the law and literature movement).Show More or law and economics.4 4.See generally Richard A. Posner, Economic Analysis of Law (9th ed. 2014) (setting out the main ideas in this field).Show More Empirical studies5 5.See Empirical Legal Studies, Legal Info. Inst., https://www.law.cornell.edu/wex/empirica‌l_legal_studies [https://perma.cc/9RZ7-9R78] (last updated Oct. 2022) (outlining the contours of the field).Show More and law-in-action6 6.See Our Law-in-Action Tradition, Univ. Wis. L. Sch., https://law.wisc.edu/law-in-action/ [https://perma.cc/LU78-NH9K] (last visited Mar. 28, 2024) (explaining the contributions of such writers as Willard Hurst and Stewart Macauley, who emphasized the importance of studying the actual effects of legal doctrine in the world of people, institutions, and corporations).Show More showed how law works in the real world. Critical race theorists7 7.E.g., Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 3–4 (4th ed. 2023) (discussing the origins and main ideas of this school of thought).Show More and critical legal studies exponents8 8.E.g., David Kairys, The Politics of Law: A Progressive Critique 3–4, 16 (3d ed. 1998); Mark Kelman, A Guide to Critical Legal Studies (1987) (describing the movement’s main concepts).Show More examined the racial and economic underpinnings of our social system.

No longer were the pages of top law reviews a succession of doctrinal articles.9 9.See, e.g., Kim Lane Scheppele, Foreword: Telling Stories, 87 Mich. L. Rev. 2073, 2073–75 (1989) (an early exposition of the narrative-study movement).Show More By most accounts, this change was much for the better.

Rachel López’s Participatory Law Scholarship is an important addition in this process of expansion.10 10.Participatory Law Scholarship is written in collaboration with individuals who are not legal scholars but have personal knowledge of some aspect of society, such as life in a total institution. See Rachel López, Participatory Law Scholarship, 123 Colum. L. Rev. 1795, 1798–1800 (2021) [hereinafter López, Participatory]; Terrell Carter, Rachel López & Kempis Songster, Redeeming Justice, 116 Nw. U. L. Rev. 315, 319–20 (2021) [hereinafter Carter et al., Redeeming]. For a significant forerunner, see V. Noah Gimbel & Craig Muhammad, Are Police Obsolete? Breaking Cycles of Violence Through Abolition Democracy, 40 Cardozo L. Rev. 1453, 1468 (2019).Show More She points out that authors who write with the goal of understanding and improving conditions for a vulnerable group, such as prisoners—and, presumably, others such as people with disabilities, mental inmates, young schoolchildren, and single moms—can often benefit from taking on co-authors from these groups.11 11.As López puts it: “Drawing from the experience of coauthoring scholarship with two activists who were sentenced to life without parole over three decades ago, this piece outlines the theory and practice of Participatory Law Scholarship . . . [which is] written in collaboration with authors who have no formal training in the law but rather expertise in its function and dysfunction through lived experience.” López, Participatory, supra note 10, at 1795.Show More

Tapping resources like these can enable a legal writer to ponder real-life circumstances he or she could easily overlook as a person who wears a neat suit and goes to work in a law building or library every day.12 12.See, e.g., id. at 1853 (noting that this form of writing can “improve[] legal scholarship by tethering it to the tangible” and that it enabled López to improve her thinking and scholarship as well).Show More One’s co-author may know things the primary writer does not know or may push her in directions she might not have considered.13 13.E.g., id. at 1800–01 (noting how López’s incarcerated co-authors—organic intellectuals in the manner of Antonio Gramsci—had access to knowledge that she lacked).Show More

For these reasons, Participatory Law Scholarship can enrich the work of almost any legal writer, bringing her into contact with people and ideas beyond the ones she encounters daily in a world of casebooks, treatises, and law journals.14 14.See id. at 1815–16 (noting that partnering with members of an outgroup can help an academic writer see reality more fully than she can see alone); Carter et al., Redeeming, supra note 10, at 318–19; see also supra notes 10–11 and accompanying text (elaborating on the perspective-enhancing quality of participatory scholarship).Show More

Just think what some of the new vistas might be. Professor López has already contributed two sparkling articles that focus mainly on the rights of the incarcerated.15 15.López, Participatory, supra note 10, at 1797–99; Carter et al., Redeeming, supra note 10, at 324 (describing participatory scholarship with co-authors who are incarcerated).Show More But other articles in the same vein might center on children trapped in classrooms that demean and disrespect them at every turn and deny them the possibility of realizing their potential.16 16.E.g., Jonathan Kozol, Savage Inequalities: Children in America’s Schools 104–07 (1991) (discussing some of the horrors of underfinanced, crowded public schools). For a critical view of life in school, see Paulo Freire, Pedagogy of the Oppressed (Myra Bergman Ramos trans., 2005).Show More They might include pieces co-authored with mentally ill individuals who are incarcerated,17 17.E.g., Titicut Follies (Bridgewater Films 1967) (recounting the atrocities of life in an institution for the mentally ill).Show More immigrants struggling to negotiate the Darien Gap,18 18.See Behind the Lens: On Migration Paths in Latin America, Associated Press (Dec. 16, 2022, 2:54 PM), https://apnews.com/article/colombia-south-america-panama-f586b73668dcd‌c15649b82e79b1929cf [https://perma.cc/W8PD-ZNBA] (graphically depicting life along the pipeline); Jeanine Cummins, American Dirt 8–9 (2019) (describing the experiences of a Mexican bookseller forced to leave Mexico with her son to escape retribution by cartels and make their way to the United States as undocumented immigrants); Polly Rosenwaike, American Dirt Offers a Thrilling Adrenaline Rush, Wash. Post (Jan. 13, 2020, 12:16 PM), https://www.washingtonpost.com/entertainment/books/american-dirt-offers-a-thrilling-adren‌aline-rush–and-insights-into-the-latin-american-migrant-experience/2020/01/13/c52e6ea4-3‌005-11ea-9313-6cba89b1b9fb_story.html [https://perma.cc/XQ9G-4DYK] (describing the hair-raising events surrounding the main character’s decision to abandon her middle-class life in Acapulco, Mexico and flee to avoid the clutches of vicious cartels angered by her husband’s journalism).Show More or people working for a minimum wage.19 19.Barbara Ehrenreich, Nickel and Dimed: On (Not) Getting by in America 1–3 (2001) (discussing life on a minimum wage).Show More

Participatory Legal Scholarship provides readers with concrete examples of lived experience, coupled with a sense of urgency to effect change. But writing processes undertaken in partnerships between legal scholars and those with expertise through personal experience can also result in scholarship that is clear and accessible.20 20.See López, Participatory, supra note 10, at 1836 (“[O]ur partnership . . . was forged . . . with members of the R2R Committee, which started in 2014 when members of the group trained me in community-based learning practices as part of a workshop for Drexel faculty engaged in experiential learning.”).Show More Consider, for example, an article about talented minority youth caught up in the school-to-prison pipeline.21 21.E.g., What Is the School-to-Prison Pipeline?, ACLU (June 6, 2008), https://www.aclu.org‌/documents/what-school-prison-pipeline [https://perma.cc/V6NE-36HW] (explaining how minor disciplinary actions may lead a schoolchild into a life of crime and incarceration). A judge might easily miss this connection because the narrative is foreign to his or her experience. See López, Participatory, supra note 10, at 1822–23 (discussing how even a well-intentioned judge can “kill” narratives that strike him or her as implausible).Show More Many schoolchildren are excellent writers, without the many tics and mannerisms some of us reveal when we are unsure of where we are going.22 22.See, e.g., Elisabeth Egan, Bronx Students Embraced a Book That Spoke to Them, N.Y. Times, Mar. 18, 2024, at C1.Show More Moreover, young students might easily know things that we might not: for example, how a single teacher who takes a dislike to a child can poison an entire teaching staff by a few choice remarks in the faculty lounge.

Thus, in addition to the substantive advantages of greater concreteness and immediacy, co-authorship can simply result in better writing.23 23.See, e.g., Lani Guinier & Gerald Torres, Changing the Wind: Toward a Demosprudence of Law and Social Movements, 123 Yale L.J. 2742, 2799–800 (2014).Show More Adult writers in other disciplines and fields do not write as badly as many of us in the legal profession do. Lynn Hunt, for example, showed how early novelists like Charles Dickens24 24.E.g., Charles Dickens, Oliver Twist 498–504 (London, Chapman & Hall 1897) (discussing conditions in Newgate prison).Show More and Samuel Richardson25 25.E.g., Samuel Richardson, Clarissa iii–vii (London, S. Richardson 1748) (covering the fortunes of a young woman of talent trapped by convention and a poor hand dealt her by fate).Show More were able to reach across the page and move readers who formerly knew—or cared—little about women, factory workers, or wretches locked up in debtors’ prison.26 26.Lynn Hunt, Inventing Human Rights: A History 38–39 (2007) (describing how early novels enabled readers to identify with the fortunes of new groups, such as the poor or women).Show More Nonfiction writers like Alex Haley and Malcolm X reached large audiences and changed minds.27 27.See generally Malcolm X, The Autobiography of Malcolm X (1965) (covering his upbringing, participation in the Nation of Islam, and activism).Show More And cinéma vérité movie directors like Frederick Wiseman brought viewers inside the world of mental patients locked up in asylums, winning awards and large audiences for their efforts.28 28.Titicut Follies, supra note 17.Show More

A Second Source: The World Within

Not every legal writer will find it feasible to write in such a fashion. Some will be disabled or located far from the penitentiary or immigrant detention center housing the people with whom he or she would like to write.29 29.Michael Olivas, for example, once lamented how his immigration law students were located far from the nearest detention center. Personal Conversation with Olivas (c. Fall 1999).Show More The institution, school, or asylum may have rules against working with the inmates or even gaining access to them.30 30.In similar fashion, this Author’s students have commented that a detention center located only thirty miles away makes it difficult for them to gain access to the inmates once they were there.Show More You may be disabled and unable to cover the distance between you and them.

Even for the able-bodied, the partners you choose may not cozy up to you. You may be too academic for them. They may not trust people from your world. You two may hit it off, but they may turn out to have little to add to what you know and were prepared to say. After all, you had to make a preliminary decision that they might be the kind of person you would like to work with. This preliminary decision may set parameters, so that you end up telling each other things that the other already knows. Your choice to write participatory research may turn out to require a prefiguring decision to choose this person or that, so that you and your readers gain little beyond what you could each have written alone.

By the same token, your choice of partners may cause confusion because it turns out that the client community is interested in one thing, while you and your legal colleagues are interested in something else. Derrick Bell once described a Black community in the South that was interested in better-funded schools with the same Black teachers and administrators that it had had all along.31 31.Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 477–78 (1976) (discussing divergent aims and interests between clients and lawyers in cases challenging school segregation in the South).Show More Often, though, the lawyer from a think tank or legal defense fund may be more interested in establishing a new legal theory, perhaps one in which schools are integrated by race.32 32.Id. at 475–77.Show More Or, as Lucie White warned, the client may just want a new pair of Sunday shoes.33 33.How disappointing, the lawyer thinks; why should they settle for that? See Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes:Notes on the Hearing of Mrs. G., 38 Buff. L. Rev. 1, 48–49 (1990).Show More

If you find yourself constantly encountering obstacles such as these, a second place to look for new insights that sidestep many such barriers is, simply, inside yourself—what one might call self-participatory legal scholarship. Thus, a person with a disability might write about the frustration of trying to patronize a favorite restaurant only to encounter a door too narrow to accommodate his or her wheelchair.34 34.See, e.g., Ruth Colker, Law of Disability Discrimination 603–05 (6th ed. 2007) (discussing remedies for wrongs like these). Incidents like these can be frustrating. See ADA Compliance for Restaurants, Webstaurant (Nov. 27, 2023), https://www.webstaurantstore.co‌m/article/152/ada-compliance-for-restaurants.html#doors [https://perma.cc/47G6-JXY8]; see also I Went into a Restaurant Last Week and Their Bathroom Doors Were Not ADA Compliant. My Wheelchair Could Not Fit Through, Just Answer Legal, https://www.justans‌wer.com/law/ll1m8-went-restaurant-last-week-bathroom-doors.html [https://perma.cc/ZAT8‌-PBCP] (describing a humiliating encounter with a restaurant’s bathroom door that was too small).Show More A member of a racial minority may find a book written by this Author that suggests that life is turning him or her into an insect and write about how she felt upon the realization.35 35.Richard Delgado, Metamorphosis: A Minority Professor’s Life, 53 U.C. Davis L. Rev. Online 1, 1 (2019) (discussing how a sequence of put-downs and minor affronts turned a high-achieving fictional academic into an insect). See generally Delgado, supra note 2 (in which the Author takes on an imagined persona to perform an analysis of currents in legal scholarship).Show More A writer like Peter Gabel might consult a therapist and learn that he and many people like him wonder whether reality and consciousness may be different sides of the same thing.36 36.Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 Tex. L. Rev. 1563, 1563–64 (1984) (noting that “prevailing legal ideas . . . acquire social meaning and . . . this social meaning helps to constitute the social world”).Show More

Legal writing attenuates the role of the self. It is desiccated. We are taught not to use the word “I.” But you can reconnect with yourself by simply looking within to see if you have a hidden partner that you have yet to bring out into the open, ready to engage during your next adventure in law review writing.

If you are bashful about too much self-disclosure, you can co-author with an academic in a field different from yours but located in the same campus or even law building. Jean Stefancic and I once realized we were both interested in the shape of legal knowledge and ended up co-authoring an article on this subject.37 37.Richard Delgado & Jean Stefancic, Why Do We Tell the Same Stories?: Law Reform, Critical Librarianship, and the Triple Helix Dilemma, 42 Stan. L. Rev. 207, 208 (1989) (discussing how widely used research tools can hinder legal innovation).Show More If you are, like many in this audience, classroom teachers, clinical professors are often located nearby, right in your law school. Maybe they know a great deal about your teaching area from a real-world perspective. David Binder, for example, once told me that one’s theory of the case shifts and changes as the lawyer learns more about it in the course of meetings and interviews with the client and witnesses.38 38.Binder was a Clinical Professor of Law at UCLA during the period in question. See David A. Binder, LLB ’59, June 10, 1934–September 15, 2020, Stan. Law. Mag. (Oct. 30, 2020), https://law.stanford.edu/stanford-lawyer/articles/david-a-binder-llb-59-june-10-1934-septe‌mber-15-2020/ [https://perma.cc/72XQ-4YYV] (discussing his career).Show More This realization suggested that legal knowledge itself might be similarly dialogic.

* * *

Today reminds me in some respects of a joyous moment in 1989, when a dozen or so young professors met at a convent outside Madison, Wisconsin, to discuss common interests and coin a name for future civil rights scholarship.39 39.Viz, “critical race theory.” The ideas had been developing for some time, although they lacked a name and organizational structure. These early authors included Bell, Jr., supra note 31; Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978); Richard Delgado, Words That Wound:A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev 133 (1982).Show More Or another a few years earlier, when an even smaller group met at a historic hotel in Los Angeles to propose a new element for the critical legal studies movement.40 40.This was the Critical Legal Studies (“CLS”) annual meeting at the Biltmore Hotel in Los Angeles that included a panel session on the advisability of including race, in addition to class, as an explanatory principle for analyzing U.S. society. See Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 Harv. C.R.-C.L. L. Rev. 301, 301 n.2 (1987) (describing the event in question).Show More Both occasions exhibited the same ferment and the same joy in finding, at last, a group of the like-minded, as does this one in Charlottesville. If someone prepares T-shirts memorializing this symposium, I hope somebody sends me one. I want to wear it around my law school while I’m pondering my next article and wondering who has the nitty-gritty background that I need to make it as engaging and reality-based as it can be.41 41.Angela Harris, Foreword to Delgado & Stefancic, supra note 7, at xiii, xiii­–xvii (describing the small gathering in Madison that she attended as a recent law school graduate, the sense of euphoria and invention the participants experienced, and the T-shirt she wears even today on special occasions).Show More

  1.  By “tends,” I mean that experiences of this kind can often improve a writer’s work-product, even if only slightly. ↑
  2.  See Richard Delgado, Groundhog Law, 21 J.L. Soc’y 1, 14–17 (2021) (describing how the imperative of citation to previous authors can hinder innovation). ↑
  3.  See generally James Boyd White, The Legal Imagination (45th Anniv. ed. 2018) (a foundational text of the law and literature movement). ↑
  4.  See generally Richard A. Posner, Economic Analysis of Law (9th ed. 2014) (setting out the main ideas in this field). ↑
  5.  See Empirical Legal Studies, Legal Info. Inst., https://www.law.cornell.edu/wex/empirica‌l_legal_studies [https://perma.cc/9RZ7-9R78] (last updated Oct. 2022) (outlining the contours of the field). ↑
  6.  See Our Law-in-Action Tradition, Univ. Wis. L. Sch., https://law.wisc.edu/law-in-action/ [https://perma.cc/LU78-NH9K] (last visited Mar. 28, 2024) (explaining the contributions of such writers as Willard Hurst and Stewart Macauley, who emphasized the importance of studying the actual effects of legal doctrine in the world of people, institutions, and corporations). ↑
  7.  E.g., Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 3–4 (4th ed. 2023) (discussing the origins and main ideas of this school of thought). ↑
  8.  E.g., David Kairys, The Politics of Law: A Progressive Critique 3–4, 16 (3d ed. 1998); Mark Kelman, A Guide to Critical Legal Studies (1987) (describing the movement’s main concepts). ↑
  9.  See, e.g., Kim Lane Scheppele, Foreword: Telling Stories, 87 Mich. L. Rev. 2073, 2073–75 (1989) (an early exposition of the narrative-study movement). ↑
  10.  Participatory Law Scholarship is written in collaboration with individuals who are not legal scholars but have personal knowledge of some aspect of society, such as life in a total institution. See Rachel López, Participatory Law Scholarship, 123 Colum. L. Rev. 1795, 1798–1800 (2021) [hereinafter López, Participatory]; Terrell Carter, Rachel López & Kempis Songster, Redeeming Justice, 116 Nw. U. L. Rev. 315, 319–20 (2021) [hereinafter Carter et al., Redeeming]. For a significant forerunner, see V. Noah Gimbel & Craig Muhammad, Are Police Obsolete? Breaking Cycles of Violence Through Abolition Democracy, 40 Cardozo L. Rev. 1453, 1468 (2019). ↑
  11.  As López puts it: “Drawing from the experience of coauthoring scholarship with two activists who were sentenced to life without parole over three decades ago, this piece outlines the theory and practice of Participatory Law Scholarship . . . [which is] written in collaboration with authors who have no formal training in the law but rather expertise in its function and dysfunction through lived experience.” López, Participatory, supra note 10, at 1795. ↑
  12.  See, e.g., id. at 1853 (noting that this form of writing can “improve[] legal scholarship by tethering it to the tangible” and that it enabled López to improve her thinking and scholarship as well). ↑
  13.  E.g., id. at 1800–01 (noting how López’s incarcerated co-authors—organic intellectuals in the manner of Antonio Gramsci—had access to knowledge that she lacked). ↑
  14.  See id. at 1815–16 (noting that partnering with members of an outgroup can help an academic writer see reality more fully than she can see alone); Carter et al., Redeeming, supra note 10, at 318–19; see also supra notes 10–11 and accompanying text (elaborating on the perspective-enhancing quality of participatory scholarship). ↑
  15.  López, Participatory, supra note 10, at 1797–99; Carter et al., Redeeming, supra note 10, at 324 (describing participatory scholarship with co-authors who are incarcerated). ↑
  16.  E.g., Jonathan Kozol, Savage Inequalities: Children in America’s Schools 104–07 (1991) (discussing some of the horrors of underfinanced, crowded public schools). For a critical view of life in school, see Paulo Freire, Pedagogy of the Oppressed (Myra Bergman Ramos trans., 2005). ↑
  17.  E.g., Titicut Follies (Bridgewater Films 1967) (recounting the atrocities of life in an institution for the mentally ill). ↑
  18.  See Behind the Lens: On Migration Paths in Latin America, Associated Press (Dec. 16, 2022, 2:54 PM), https://apnews.com/article/colombia-south-america-panama-f586b73668dcd‌c15649b82e79b1929cf [https://perma.cc/W8PD-ZNBA] (graphically depicting life along the pipeline); Jeanine Cummins, American Dirt 8–9 (2019) (describing the experiences of a Mexican bookseller forced to leave Mexico with her son to escape retribution by cartels and make their way to the United States as undocumented immigrants); Polly Rosenwaike, American Dirt Offers a Thrilling Adrenaline Rush, Wash. Post (Jan. 13, 2020, 12:16 PM), https://www.washingtonpost.com/entertainment/books/american-dirt-offers-a-thrilling-adren‌aline-rush–and-insights-into-the-latin-american-migrant-experience/2020/01/13/c52e6ea4-3‌005-11ea-9313-6cba89b1b9fb_story.html [https://perma.cc/XQ9G-4DYK] (describing the hair-raising events surrounding the main character’s decision to abandon her middle-class life in Acapulco, Mexico and flee to avoid the clutches of vicious cartels angered by her husband’s journalism). ↑
  19.  Barbara Ehrenreich, Nickel and Dimed: On (Not) Getting by in America 1–3 (2001) (discussing life on a minimum wage). ↑
  20.  See López, Participatory, supra note 10, at 1836 (“[O]ur partnership . . . was forged . . . with members of the R2R Committee, which started in 2014 when members of the group trained me in community-based learning practices as part of a workshop for Drexel faculty engaged in experiential learning.”). ↑
  21.  E.g., What Is the School-to-Prison Pipeline?, ACLU (June 6, 2008), https://www.aclu.org‌/documents/what-school-prison-pipeline [https://perma.cc/V6NE-36HW] (explaining how minor disciplinary actions may lead a schoolchild into a life of crime and incarceration). A judge might easily miss this connection because the narrative is foreign to his or her experience. See López, Participatory, supra note 10, at 1822–23 (discussing how even a well-intentioned judge can “kill” narratives that strike him or her as implausible). ↑
  22.  See, e.g., Elisabeth Egan, Bronx Students Embraced a Book That Spoke to Them, N.Y. Times, Mar. 18, 2024, at C1. ↑
  23.  See, e.g., Lani Guinier & Gerald Torres, Changing the Wind: Toward a Demosprudence of Law and Social Movements, 123 Yale L.J. 2742, 2799–800 (2014). ↑
  24.  E.g., Charles Dickens, Oliver Twist 498–504 (London, Chapman & Hall 1897) (discussing conditions in Newgate prison). ↑
  25.  E.g., Samuel Richardson, Clarissa iii–vii (London, S. Richardson 1748) (covering the fortunes of a young woman of talent trapped by convention and a poor hand dealt her by fate). ↑
  26.  Lynn Hunt, Inventing Human Rights: A History 38–39 (2007) (describing how early novels enabled readers to identify with the fortunes of new groups, such as the poor or women). ↑
  27.  See generally Malcolm X, The Autobiography of Malcolm X (1965) (covering his upbringing, participation in the Nation of Islam, and activism). ↑
  28.  Titicut Follies, supra note 17. ↑
  29.  Michael Olivas, for example, once lamented how his immigration law students were located far from the nearest detention center. Personal Conversation with Olivas (c. Fall 1999). ↑
  30.  In similar fashion, this Author’s students have commented that a detention center located only thirty miles away makes it difficult for them to gain access to the inmates once they were there. ↑
  31.  Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 477–78 (1976) (discussing divergent aims and interests between clients and lawyers in cases challenging school segregation in the South). ↑
  32.  Id. at 475–77. ↑
  33.  How disappointing, the lawyer thinks; why should they settle for that? See Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 Buff. L. Rev. 1, 48–49 (1990). ↑
  34.  See, e.g., Ruth Colker, Law of Disability Discrimination 603–05 (6th ed. 2007) (discussing remedies for wrongs like these). Incidents like these can be frustrating. See ADA Compliance for Restaurants, Webstaurant (Nov. 27, 2023), https://www.webstaurantstore.co‌m/article/152/ada-compliance-for-restaurants.html#doors [https://perma.cc/47G6-JXY8]; see also I Went into a Restaurant Last Week and Their Bathroom Doors Were Not ADA Compliant. My Wheelchair Could Not Fit Through, Just Answer Legal, https://www.justans‌wer.com/law/ll1m8-went-restaurant-last-week-bathroom-doors.html [https://perma.cc/ZAT8‌-PBCP] (describing a humiliating encounter with a restaurant’s bathroom door that was too small). ↑
  35.  Richard Delgado, Metamorphosis: A Minority Professor’s Life, 53 U.C. Davis L. Rev. Online 1, 1 (2019) (discussing how a sequence of put-downs and minor affronts turned a high-achieving fictional academic into an insect). See generally Delgado, supra note 2 (in which the Author takes on an imagined persona to perform an analysis of currents in legal scholarship). ↑
  36.  Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 Tex. L. Rev. 1563, 1563–64 (1984) (noting that “prevailing legal ideas . . . acquire social meaning and . . . this social meaning helps to constitute the social world”). ↑
  37.  Richard Delgado & Jean Stefancic, Why Do We Tell the Same Stories?: Law Reform, Critical Librarianship, and the Triple Helix Dilemma, 42 Stan. L. Rev. 207, 208 (1989) (discussing how widely used research tools can hinder legal innovation). ↑
  38.  Binder was a Clinical Professor of Law at UCLA during the period in question. See David A. Binder, LLB ’59, June 10, 1934–September 15, 2020, Stan. Law. Mag. (Oct. 30, 2020), https://law.stanford.edu/stanford-lawyer/articles/david-a-binder-llb-59-june-10-1934-septe‌mber-15-2020/ [https://perma.cc/72XQ-4YYV] (discussing his career). ↑
  39.  Viz, “critical race theory.” The ideas had been developing for some time, although they lacked a name and organizational structure. These early authors included Bell, Jr., supra note 31; Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978); Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev 133 (1982). ↑
  40.  This was the Critical Legal Studies (“CLS”) annual meeting at the Biltmore Hotel in Los Angeles that included a panel session on the advisability of including race, in addition to class, as an explanatory principle for analyzing U.S. society. See Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 Harv. C.R.-C.L. L. Rev. 301, 301 n.2 (1987) (describing the event in question). ↑

  41.  Angela Harris, Foreword to Delgado & Stefancic, supra note 7, at xiii, xiii­–xvii (describing the small gathering in Madison that she attended as a recent law school graduate, the sense of euphoria and invention the participants experienced, and the T-shirt she wears even today on special occasions). ↑

In Tribute: Judge J. Harvie Wilkinson III

On the occasion of Judge J. Harvie Wilkinson’s fortieth year on the bench, these Essays honor his contributions to the U.S. Court of Appeals for the Fourth Circuit, to American law, and to the lives of his clerks and colleagues.

FOREWORD
 Jay Wilkinson as Teacher ……………………….. John C. Jeffries, Jr.       248

ESSAYS

Judge Wilkinson’s First Amendment:                     Dan Richardson
     Safeguarding the Democratic Process ………….Leslie Kendrick      250

The Judge ………………………………………….. Judge Daniel A. Bress      261

Prudence, Role Morality, and
    Restraint: Judge Wilkinson                    Katherine Mims Crocker
    on the Separation of Powers ………………………. Jack Goldsmith       269

Learning to Disagree Agreeably ……………….. Allison Orr Larsen        283

Consent and Compensation: Resolving Generative AI’s Copyright Crisis

Generative artificial intelligence (AI) has the potential to augment and democratize creativity. However, it is undermining the knowledge ecosystem that now sustains it. Generative AI may unfairly compete with authors, journalists, and other creative workers, displacing them in the market. Most AI firms are not compensating creative workers for composing the songs, drawing the images, and writing both the fiction and nonfiction books that their models need in order to function. AI thus threatens not only to undermine the livelihoods of authors, artists, and other creatives, but also to destabilize the very knowledge ecosystem it relies on.

Alarmed by these developments, many copyright owners have objected to the use of their works by AI providers. In order to recognize and empower their demands to stop nonconsensual use of their works, we propose a streamlined opt-out mechanism that would require AI providers to remove objectors’ works from their databases once copyright infringement has been documented. Those who do not object still deserve compensation for the use of their work by AI providers. We thus also propose a levy on AI providers, to be distributed to the copyright owners whose work they use without a license. This scheme is designed to ensure that creatives receive a fair share of the economic bounty arising out of their contributions to AI. Together, these mechanisms of consent and compensation would result in a new grand bargain between copyright owners and AI firms, helping to ensure the long-term viability of both AI and the human thought and expression it depends on.

Introduction

From the printing press to the Internet, technological advance has profoundly changed the way authors create, disseminate, and monetize their works.1 1.See generally Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates(2009) (discussing the history of copyright piracy).Show More Widespread access to the Internet has caused book, music, and film creators great economic setbacks via piracy, but has also created new opportunities, particularly for “long tail” creators shunned by dominant recording companies and broadcasters.2 2.See Chris Anderson, The Long Tail, Wired (Oct. 1, 2004, 12:00 PM), https://www.wired.‌com/2004/10/tail [https://perma.cc/P9QQ-MPTG].Show More Despite the upheaval, human authors have remained indispensable in the creation of works, as pirates do not create original content.

The rise of generative artificial intelligence (AI), however, represents an inflection point.3 3.Generative AI’s power to create exact replicas of existing works, and to imitate many characteristic elements of existing works, has provoked a wave of lawsuits over the past two years. However, copyright controversies over the training of AI antedate the rise of generative AI. To mark the relevance of that past work, and the continuity of the problems likely to be raised by AI when the next generation of AI arises, we refer to “AI” throughout the Essay, rather than the more cumbersome “generative AI” or “GenAI.”Show More AI can plagiarize at a far faster rate than human copyists.4 4.Kate Knibbs, Scammy AI-Generated Book Rewrites Are Flooding Amazon, Wired (Jan. 10, 2024, 7:00 AM), https://www.wired.com/story/scammy-ai-generated-books-flooding-am‌azon/ [https://perma.cc/4R7G-LXFU].Show More These capacities are menacing both fiction and nonfiction book authors, as well as journalists.5 5.Our focus in this Essay is on corporations developing, marketing, and selling AI services. The legislative approaches developed in this Essay may, in a calibrated fashion, adjust duties of AI providers to reflect their size, for-profit or nonprofit status, and other factors.Show More AI can also create new works that closely resemble the style and content of existing ones. When prompted skillfully, large language models (LLMs) aid in the rapid creation of a high volume of content. The bottom line is an “existential crisis” for many creatives, threatening to drive the marginal value of their labor below subsistence levels as cheap AI content displaces human works.6 6.See Michael Cavna, Artists Are Alarmed by AI—and They’re Fighting Back, Wash. Post (Feb. 14, 2023, 6:00 AM), https://www.washingtonpost.com/comics/2023/02/14/ai-in-illustra‌tion/ [https://perma.cc/4RFW-5FX3] (describing “an existential threat to the livelihood of artists”). Throughout this Essay, we will refer to artists, writers, journalists, and other creators of expressive works as “creatives” or “copyright owners.” We realize these terms may be too capacious: some expressive work only takes a minimal amount of creativity, and many creatives have transferred their copyrights to others in exchange for compensation. Nevertheless, copyright is premised on some minimal level of creativity, and the future compensation of creatives who plan to alienate their copyrights is at least in part premised on the value of those copyrights to those seeking them. Thus the terms capture enough of social and economic reality to be useful here.Show More

Given the enthusiasm for AI evident among so many owners of dominant content distribution platforms, such a displacement may already be underway.7 7.Edward Zitron, Are We Watching the Internet Die?, Where’s Your Ed At? (Mar. 11, 2024), https://www.wheresyoured.at/are-we-watching-the-internet-die/ [https://perma.cc/PZC5-H9‌FF] (recognizing that because “platforms were built to reward scale and volume far more often than quality,” creatives who use AI enjoy important advantages over those who do not).Show More To create and improve their AI models, large technology firms have undermined authors’ proprietary control over their works by using these works as training data, without consent and often through opaque processes.8 8.See infra Section I.B.Show More At the same time, AI systems like ChatGPT and MidJourney can rapidly generate a wide variety of content, potentially outperforming humans in the marketplace of ideas—particularly when so many of this marketplace’s main organizers such as Alphabet (Google’s parent company), X (formerly Twitter), and Meta (formerly Facebook) are themselves developing AI.9 9.See Thomas H. Davenport & Nitin Mittal, How Generative AI Is Changing Creative Work, Harv. Bus. Rev. (Nov. 14, 2022), https://hbr.org/2022/11/how-generative-ai-is-changing-crea‌tive-work [https://perma.cc/SK98-ZE5T].Show More

To compound these challenges, leading firms in the AI space are unlikely to offer compensation for the vital contributions of copyrighted works to their systems. In 2023, this state of affairs helped lead to an unprecedented 148-day strike by Hollywood screenwriters.10 10.Ben Schwartz, AI and the Hollywood Writers’ Strike, Nation (May 8, 2023), https://www.‌thenation.com/article/economy/ai-and-the-hollywood-writers-strike [https://perma.cc/8TJR-ZBUC]; Jennifer Maas, The Writers Strike Is Over: WGA Votes to Lift Strike Order After 148 Days, Variety (Sept. 26, 2023, 5:07 PM), https://variety.com/2023/tv/news/writers-strike-over-wga-votes-end-work-stoppage-1235735512/ [https://perma.cc/F5P7-QEWF].Show More Book authors are also alarmed. Over 15,000 writers, including prominent novelists such as Dan Brown, Suzanne Collins, and Margaret Atwood, have endorsed an open letter demanding fair compensation, credit, and author consent for the use of their works in AI systems.11 11.Open Letter to Generative AI Leaders, Action Network, https://actionnetwork.org/petitio‌ns/authors-guild-open-letter-to-generative-ai-leaders [https://perma.cc/8D5W-WGFL] (last visited Mar. 3, 2024).Show More At least one former executive in an AI firm has resigned his position, considering the unlicensed use of music as training data both ethically and legally untenable.12 12.Kate Knibbs, This Tech Exec Quit His Job to Fight Generative AI’s Original Sin, Wired (Jan. 17, 2024, 4:44 PM), https://www.wired.com/story/ai-executive-ed-newton-rex-turns-cru‌sader-stand-up-for-artists [https://perma.cc/97NE-H4Y7].Show More This struggle has resulted in numerous courtroom battles over copyright infringement, too.13 13.Complaint at 2–3, Basbanes v. Microsoft Corp., No. 24-cv-00084 (S.D.N.Y. Jan. 5, 2024); Complaint at 2–4, N.Y. Times Co. v. Microsoft Corp., No. 23-cv-11195 (S.D.N.Y. Dec. 27, 2023); Generative AI-Intellectual Property Cases and Policy Tracker, Mishcon de Reya LLP, https://www.mishcon.com/generative-ai-intellectual-property-cases-and-policy-tr‌acker [https://perma.cc/7RHU-3PG2] (last visited Mar. 3, 2024).Show More AI firms claim that they are protected by the fair use defense,14 14.Mark A. Lemley & Bryan Casey, Fair Learning, 99 Tex. L. Rev. 743, 748 (2021) (arguing that “a [machine learning] system’s use of the data often is transformative as that term has come to be understood in copyright law, because even though it doesn’t change the underlying work, it changes the purpose for which the work is used”).Show More but application of the doctrine is notoriously uncertain, particularly with respect to new technologies.15 15.Katherine Lee, A. Feder Cooper & James Grimmelmann, Talkin’ ‘Bout AI Generation: Copyright and the Generative-AI Supply Chain, 71 J. Copyright Soc’y (forthcoming 2024) (manuscript at 105), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4523551 [https://pe‌rma.cc/Z3C7-PJWJ] (“[F]air use is famously case-specific, so no ex ante analysis can anticipate all of the relevant issues.”).Show More

This litigation may drag on for years, slowing the development of AI while denying or delaying fair compensation to creatives. The situation strikes many policymakers as deeply unfair and undesirable. As the Communications and Digital Committee of the United Kingdom’s House of Lords has concluded, “[w]e do not believe it is fair for tech firms to use rightsholder data for commercial purposes without permission or compensation, and to gain vast financial rewards in the process.”16 16.Commc’ns & Digit. Comm., Large Language Models and Generative AI, 2023-24, HL 54, ¶ 245 (UK).Show More A legislative solution is desirable, and there is a venerable tradition of actual and proposed solutions to the copyright problems created by new technological uses of works.17 17.See William W. Fisher III, Promises to Keep: Technology, Law, and the Future of Entertainment 1–22 (2004).Show More

To guide policymakers, this Essay outlines a promising framework for a legislative solution premised on coupling mechanisms of control (via opt-out rights) and compensation (via a levy to be imposed on AI providers by a central authority and then distributed to owners of works used by those AI providers without a license). These mechanisms could first be imposed on the largest AI providers and then expanded as appropriate once standardized. Part I explains the urgency of this proposal by demonstrating that free expropriation of copyrighted works by AI providers not only devalues human creativity, but also threatens to undermine AI itself by eliminating critical incentives for the ongoing creation of works necessary for further technological development. Part II outlines an opt-out mechanism, permitting creatives to forbid nonconsensual use of their works for training AI models after documenting copyright infringement. Part III addresses the proper level of levies necessary to compensate those who do not choose to opt out or license their works to AI providers. Part IV anticipates and responds to objections to our proposal. This Essay concludes by reflecting on the broader policy implications of our proposal.

  1.  See generally Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates

    (2009) (discussing the history of copyright piracy). ↑

  2.  See Chris Anderson, The Long Tail, Wired (Oct. 1, 2004, 12:00 PM), https://www.wired.‌com/2004/10/tail [https://perma.cc/P9QQ-MPTG]. ↑
  3.  Generative AI’s power to create exact replicas of existing works, and to imitate many characteristic elements of existing works, has provoked a wave of lawsuits over the past two years. However, copyright controversies over the training of AI antedate the rise of generative AI. To mark the relevance of that past work, and the continuity of the problems likely to be raised by AI when the next generation of AI arises, we refer to “AI” throughout the Essay, rather than the more cumbersome “generative AI” or “GenAI.” ↑
  4.  Kate Knibbs, Scammy AI-Generated Book Rewrites Are Flooding Amazon, Wired (Jan. 10, 2024, 7:00 AM), https://www.wired.com/story/scammy-ai-generated-books-flooding-am‌azon/ [https://perma.cc/4R7G-LXFU]. ↑
  5.  Our focus in this Essay is on corporations developing, marketing, and selling AI services. The legislative approaches developed in this Essay may, in a calibrated fashion, adjust duties of AI providers to reflect their size, for-profit or nonprofit status, and other factors. ↑
  6.  See Michael Cavna, Artists Are Alarmed by AI—and They’re Fighting Back, Wash. Post
    (

    Feb. 14, 2023, 6:00 AM), https://www.washingtonpost.com/comics/2023/02/14/ai-in-illustra‌tion/ [https://perma.cc/4RFW-5FX3] (describing “an existential threat to the livelihood of artists”). Throughout this Essay, we will refer to artists, writers, journalists, and other creators of expressive works as “creatives” or “copyright owners.” We realize these terms may be too capacious: some expressive work only takes a minimal amount of creativity, and many creatives have transferred their copyrights to others in exchange for compensation. Nevertheless, copyright is premised on some minimal level of creativity, and the future compensation of creatives who plan to alienate their copyrights is at least in part premised on the value of those copyrights to those seeking them. Thus the terms capture enough of social and economic reality to be useful here. ↑

  7.  Edward Zitron, Are We Watching the Internet Die?, Where’s Your Ed At? (Mar. 11, 2024), https://www.wheresyoured.at/are-we-watching-the-internet-die/ [https://perma.cc/PZC5-H9‌FF] (recognizing that because “platforms were built to reward scale and volume far more often than quality,” creatives who use AI enjoy important advantages over those who do not). ↑
  8.  See infra Section I.B. ↑
  9.  See Thomas H. Davenport & Nitin Mittal, How Generative AI Is Changing Creative Work, Harv. Bus. Rev. (Nov. 14, 2022), https://hbr.org/2022/11/how-generative-ai-is-changing-crea‌tive-work [https://perma.cc/SK98-ZE5T]. ↑
  10.  Ben Schwartz, AI and the Hollywood Writers’ Strike, Nation (May 8, 2023), https://www.‌thenation.com/article/economy/ai-and-the-hollywood-writers-strike [https://perma.cc/8TJR-ZBUC]; Jennifer Maas, The Writers Strike Is Over: WGA Votes to Lift Strike Order After 148 Days, Variety (Sept. 26, 2023, 5:07 PM), https://variety.com/2023/tv/news/writers-strike-over-wga-votes-end-work-stoppage-1235735512/ [https://perma.cc/F5P7-QEWF]. ↑
  11.  Open Letter to Generative AI Leaders, Action Network, https://actionnetwork.org/petitio‌ns/authors-guild-open-letter-to-generative-ai-leaders [https://perma.cc/8D5W-WGFL] (last visited Mar. 3, 2024). ↑
  12.  Kate Knibbs, This Tech Exec Quit His Job to Fight Generative AI’s Original Sin, Wired
    (

    Jan. 17, 2024, 4:44 PM), https://www.wired.com/story/ai-executive-ed-newton-rex-turns-cru‌sader-stand-up-for-artists [https://perma.cc/97NE-H4Y7]. ↑

  13.  Complaint at 2–3, Basbanes v. Microsoft Corp., No. 24-cv-00084 (S.D.N.Y. Jan. 5, 2024); Complaint at 2–4, N.Y. Times Co. v. Microsoft Corp., No. 23-cv-11195 (S.D.N.Y. Dec. 27, 2023); Generative AI-Intellectual Property Cases and Policy Tracker, Mishcon de Reya LLP, https://www.mishcon.com/generative-ai-intellectual-property-cases-and-policy-tr‌acker [https://perma.cc/7RHU-3PG2] (last visited Mar. 3, 2024). ↑
  14.  Mark A. Lemley & Bryan Casey, Fair Learning, 99 Tex. L. Rev. 743, 748 (2021) (arguing that “a [machine learning] system’s use of the data often is transformative as that term has come to be understood in copyright law, because even though it doesn’t change the underlying work, it changes the purpose for which the work is used”). ↑
  15.  Katherine Lee, A. Feder Cooper & James Grimmelmann, Talkin’ ‘Bout AI Generation: Copyright and the Generative-AI Supply Chain, 71 J. Copyright Soc’y (forthcoming 2024) (manuscript at 105), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4523551 [https://pe‌rma.cc/Z3C7-PJWJ] (“[F]air use is famously case-specific, so no ex ante analysis can anticipate all of the relevant issues.”). ↑
  16.  Commc’ns & Digit. Comm., Large Language Models and Generative AI, 2023-24, HL 54, ¶ 245 (UK). ↑

  17.  See

    William W. Fisher III, Promises to Keep: Technology, Law, and the Future of Entertainment 1–22 (2004). ↑

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