Article

Interpretive Lawmaking

For nearly 100 years, prevailing American legal thought has rejected the idea that there can be unwritten bodies of law that judges ascertain and apply just as they do written law. Instead, the story goes, the only preexisting sets of legal rules come from written texts; all other rules—at common law, in equity, or in filling gaps in statutory or constitutional text—are necessarily made by judges. So, when a written text fails to provide a legal rule, courts have the power to make policy decisions and create one, subject to some limitations such as the Due Process Clause.

But the Founders understood judges to be capable of resolving disputes by only finding law—a belief that persisted into the early twentieth century. Not only did judges lack the authority to make law at common law or in equity, but they also lacked authority to make law in applying written text—even when traditional methods of finding and applying written law provided no answer and even if Congress intended to delegate lawmaking power. What’s more, the judicial power granted in Article III was not originally understood to have included a freestanding lawmaking power. And because it is possible for judges to find law, that original understanding might constrain the judiciary today. To be sure, it is often difficult to know where interpretation and application end and lawmaking begins. And the Founders’ conception of the judicial role might not be binding or might have been altered by nearly a century’s practice. But judges, especially originalist judges, should seriously confront the fact that, as an original matter, the Constitution granted judges no lawmaking power.

This Article also explores how several current judicial doctrines might change if courts refused to make law in applying written text. For example, Article III could offer its own prohibition against vague statutes—subject to different requirements and remedies than the conventional due process-based vagueness doctrine. A return to the original understanding of the judicial power would cast doubt on the judicial practices of interstitial lawmaking and of making law when applying so-called “common law statutes.” And Erie guesses might raise Article III concerns if the relevant state court is authorized to make law (in which case federal courts predicting such a state court would be impermissibly lawmaking). Stare decisis considerations might counsel caution in some areas. But judges should also approach the constitutional problems and doctrinal inconsistencies caused by uncritical judicial lawmaking with clear eyes.

Introduction

Justice Oliver Wendell Holmes, Jr., derided the idea of preexisting unwritten law as belief in a “brooding omnipresence in the sky.”1 1.See S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).Show MoreHe even criticized Justice Story for being “dominat[ed]” by such a fanciful idea in Swift v. Tyson.2 2.41 U.S. (16 Pet.) 1 (1842), overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533–35 (1928) (Holmes, J., dissenting).Show MoreShortly thereafter, the Supreme Court declared the idea a “fallacy” and disclaimed the existence of any “transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute.”3 3.Erie, 304 U.S. at 79 (quoting Black & White Taxicab, 276 U.S. at 533 (Holmes, J., dissenting)).Show MoreIn the modern era, even Justice Scalia, who was otherwise considered a historical formalist, considered the idea “naive.”4 4.James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring in the judgment); Stephanos Bibas, Blakely’s Federal Aftermath, 16 Fed. Sent’g Rep. 333, 341–42 (2004) (noting “Justice Scalia’s historical, formalist ideal”). Justice Scalia distinguished what the lawmaking legislators do by recharacterizing judicial lawfinding as a case-by-case lawmaking in which judges “discern[] what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.” James B. Beam, 501 U.S. at 549; see also id. at 546 (White, J., concurring in the judgment) (arguing that Justice Scalia’s proposed distinction does not work and relies on “citizens who are naive enough to believe” that lawfinding is possible). But that move does not completely avoid the problem because lawfinding at the Founding was not considered to be lawmaking at all. See infra note 128.Show MoreIf it is true that judges routinely make law, then the basis for the Constitution’s protections of judicial independence, such as life tenure, becomes unclear, as they were premised on the idea that judges would find law. And if judges are not in fact so constrained, why should those protections bind today?

But the tides are turning—or returning. Recent scholarship has defended the prevailing conception at the Founding that judges can find law—either as expressed in written text or as existing as authoritative unwritten law.5 5.See, e.g., Stephen E. Sachs, Finding Law, 107 Calif. L. Rev. 527, 529 (2019) [hereinafter Sachs, Finding Law]. To be sure, seeds of dissent have been around for much longer. See William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1514–15 (1984); Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54 Wm. & Mary L. Rev. 921, 924–37 (2013) [hereinafter Nelson, Critical Guide].Show MoreOne commentator has even argued that the judicial power given to federal courts in Article III does not include the authority to make common law.6 6.See Micah S. Quigley, Article III Lawmaking, 30 Geo. Mason L. Rev. 279, 302–05 (2022).Show MoreAnd a recent article advances the argument that the law does not necessarily run out, which means that a judge could only find law.7 7.See Charles F. Capps, Does the Law Ever Run Out?, 100 Notre Dame L. Rev. (forthcoming 2025) (manuscript at 11–12), https://papers.ssrn.com/sol3/papers.cfm?abstract_‌id=4908863 [https://perma.cc/97YH-FDPP].Show MoreFormalist judges have introduced some of these underlying theories in various contexts.8 8.See, e.g., Lester v. United States, 921 F.3d 1306, 1312–13 (11th Cir. 2019) (Pryor, J., statement respecting the denial of rehearing en banc) (asserting that judges find law in the context of retroactivity in collateral proceedings).Show MoreBut to date, little attention has been paid to legal interpretation in a post-realist legal order.9 9.One notable recent exception is Professor Charles Tyler. See Charles W. Tyler, Common Law Statutes, 99 Notre Dame L. Rev. 669, 679–84 (2023). But he offers other reasons for using general law in interpretation, see id. at 684–92, and avoids answering the question whether Article III requires it, id. at 685 & n.92.Show MoreThis Article fills that void.

Historically, courts distinguished between interpreting and applying law—which were permissible judicial functions—and making law when neither statute nor unwritten law provided a legal rule—which was an impermissible legislative function.10 10.See, e.g., Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246, 309 (1818).Show MoreAlthough the line was not always easy to draw, courts tried to thread the needle and considered themselves to be applying only preexisting law, possible instances of judicial lawmaking notwithstanding. It was in this legal context that Article III was drafted and ratified. The judicial power referenced in Article III was not understood to contain a substantive lawmaking power—even when no law provided an applicable rule.11 11.See infra Subsection II.A.3.Show MoreAnd because judges found rather than made law, they plausibly needed to be independent from political interests that would seek to influence them to create new law outside the legislative process.

This conclusion has obvious relevance for cases involving unwritten law, but the Founding generation similarly understood the judicial power to be so limited in cases involving written law. When a case turned on a question of written law, courts first looked to the text—in the light of the common law and other legal customs—to find the relevant legal rule. If this textual inquiry did not provide an answer, courts could apply a rule of unwritten law (if there was one) or state law in some instances. And if there was no applicable unwritten- or state-law rule, courts considered themselves bound to simply declare that there was no legal rule and use default rules or burdens of proof to resolve the parties’ dispute.12 12.See infra Subsection II.A.3.Show MoreIn a way, the lack of authority would have incentivized judges to find all the law they could in recognized sources.

Then arrived the legal realist movement, which was reflected in Erie Railroad Co. v. Tompkins. Erie declared three principles, only one of which I challenge here. First, it explained that in cases arising from diversity jurisdiction, state substantive law applied under both the Rules of Decision Act and the Constitution.13 13.Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Nelson, Critical Guide, supra note 5, at 951.Show MoreNothing in this Article undermines that conclusion.14 14.For an argument that this conclusion did not support the holding in Erie, see Nelson, Critical Guide, supra note 5, at 951–56, 959.Show MoreSecond, in a departure from the first nearly 150 years of American jurisprudence, Erie stated that there was no American general common law.15 15.Erie, 304 U.S. at 78–79. For an argument that such general law demonstrably existed, see Fletcher, supra note 5, at 1514–21. For an argument that it persists post-Erie, see Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503, 547–48, 548 n.216 (2006) [hereinafter Nelson, Persistence].Show MoreAgain, nothing here requires jettisoning this conclusion. If there is a general common law, then it might be within the judicial power to find and apply it; if there is no such law, judges would still have been considered bound to find law, albeit from other sources. Third, Erie asserted that there was no such thing as unwritten law—when judges pronounced a legal rule, they were in fact making that rule as much as a legislature would make a rule through a statute.16 16.Erie, 304 U.S. at 79.Show MoreOnly this part of Erie is implicated here. Erie was incorrect to conclude that finding law is impossible. Even further, by not granting the federal judiciary any lawmaking power, the Constitution necessarily envisioned a judiciary confined to finding law. So, to reiterate, nothing I say here implicates Erie’s conclusions that state substantive law governs in diversity cases or that there is no American general common law. Rather, my target is Erie’s conclusion that judicial lawmaking is inevitable. Not only is that conclusion mistaken, but Article III’s grant of judicial power contemplated the opposite: a judiciary that only found law.

Part I explains that finding law is indeed possible. The notion that finding law is possible is a prerequisite to the argument that the Constitution put into place a system that required courts to exclusively find law. If finding law were not possible, the conceptions of judicial power held by the Framers and ratifiers of the Constitution would have little import, even under originalist theories. Part I borrows on recent scholarship by Steve Sachs, Micah Quigley, and Allan Beever, all of whom defend in different ways the possibility of finding unwritten law, and all of whom tie those theories to Founding-era legal thought.

Part II first argues that the judicial power granted to the federal judiciary in Article III did not include a freestanding lawmaking power. The Framers and ratifiers considered judges bound to find and apply preexisting law—whether written or unwritten. And that conception informs the phrase “judicial Power” in Article III. Assuming our government is one of enumerated powers, the fact that the judicial power did not include a freestanding lawmaking power entails that judges were granted only the power to find law, not make it.

Part II also responds to two forceful counterarguments that stand in the way. First, the Founding generation understood courts’ power to make procedural law as consistent with the judicial role. And if Article III’s judicial power allows procedural lawmaking, the argument goes, surely it allowed judges to make substantive law. Second, sometimes—explicitly or implicitly—Congress delegated its Article I lawmaking power to the judiciary. When Congress attempted to do so, an objector might argue, judges were constitutionally obligated to honor Congress’s intent and make law. Regardless of whether this potential for delegated lawmaking justified judicial lawmaking in areas without such delegation, Article III’s judicial power surely allowed judges to make law when Congress delegated that power to them.

But both counterarguments come up short. Federal courts’ limited authority to make “procedural law” did not justify a freestanding substantive lawmaking power. The source of the federal judiciary’s procedural lawmaking power is uncertain. It might be an incidental judicial power to the case-deciding judicial power (that is, the judicial power granted in Article III). In other words, as a historical matter, the case-deciding judicial power necessarily entailed a procedural-lawmaking judicial power. Or it could be understood as an inherent power. Under this theory, the judiciary had the power to make procedural law because there was no way to exercise its case-deciding judicial power without making procedural law. But under either theory, courts’ procedural lawmaking power (1) was strictly limited to questions of procedure and (2) could be permissibly exercised only when no other law—written or unwritten—provided a procedural rule on point.17 17.See, e.g., Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825) (explaining that a procedural question within the inherent power of the judiciary could be regulated by Congress, in which case the judiciary’s power was dormant); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227–28 (1821) (similar proposition for the judicial contempt power).Show More

Nor was Congress understood to be able to delegate its legislative power to courts.18 18.See 1 Walter Malins Rose, A Code of Federal Procedure § 6, at 47 (1907) (“[T]he courts may not be required, nor have they a right to exercise non-judicial powers.”).Show MoreUnlike the legislative and executive branches, the judicial branch was given no role in the legislative process and no legislative powers.19 19.SeeU.S. Const. art. I, § 1; id. §§ 3, 7; The Federalist No. 47, at 300–05 (James Madison) (Clinton Rossiter ed., 1961) (presenting this view of the separation of powers and collecting instances of crossovers in the states, including instances of the executive branch being given limited legislative powers).Show MoreAnd the structure of judicial review makes it even more unlikely that courts could have made law—even with acquiescence from the other two branches—because judges could not be neutral arbiters of the constitutionality of their own laws. To be sure, this nondelegation principle did not prohibit all judicial discretion in every context, but early courts took seriously the idea that congressional delegation did not provide a lawmaking safe harbor.

Part III addresses the admittedly murky line between applying written texts in adjudication and lawmaking. The fact that a line is difficult to discern does not mean that the distinction is hopelessly indeterminate. Though I do not purport to set forth a clear formula for determining when a court has made law or found and applied it, there are some instances in which courts have indisputably made law. I examine those examples and seek to deduce some guiding principles from which to identify judicial lawmaking.

Part IV examines some potential implications on modern judicial doctrines. In the nearly ninety years since Erie, many doctrines have developed in the shadow of Erie’s presumption that the judiciary has the authority to make law. I examine four such doctrines here and consider how each of these doctrines might be altered if courts revived a lawfinding-only approach.

First, instead of—or perhaps in addition to—being rooted in the Due Process Clause, vagueness doctrine and its accompanying canons of statutory interpretation might have a root in Article III. Grounding vagueness doctrine in Article III would also restrict the remedies available in vagueness challenges; for example, it would cut against facial invalidation of statutes because future courts would still be obligated to apply the statute when law can be found in it.

Second, some laws are not vague in the traditional sense but still invite judicial lawmaking. These laws are so broad that no one interprets them to have their full textual scope, such as Section One of the Sherman Act.20 20.See infra notes 317–22 and accompanying text.Show MoreAlthough some of these laws could be read as codifying common law principles, federal courts have not always considered themselves to be constrained by the common law at the time of enactment or the common law as developed over time. Instead, courts have taken it upon themselves to make new law and essentially create a new statute via their own judicial policy. But that arrogation of power leaves the judiciary with the legislative task of weighing policy interests to determine the reach of a duly enacted statute.

Third, written texts sometimes appear incomplete or destined to fail, such as the Banking Act of 1933, which created the Federal Deposit Insurance Corporation (“FDIC”).21 21.See Banking Act of 1933, Pub. L. No. 73-66, § 12B, 48 Stat. 162, 168 (1933).Show MoreCourts in those cases have concluded that they have the power to weigh competing federal policies and fashion their own rules through “interstitial lawmaking.”22 22.See Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 Iowa L. Rev. 735, 746–47, 747 n.42 (2001).Show More Openly acting as policy-makers, courts create rules that protect federal interests by considering whether a uniform federal rule is needed and which one to create.23 23.See United States v. Kimbell Foods, Inc., 440 U.S. 715, 727–28 (1979) (“Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy ‘dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.’” (quoting United States v. Standard Oil Co., 332 U.S. 301, 310 (1947))).Show MoreAt bottom, courts are creating and enforcing their own legislative decisions and balancing competing interests with (at best) loose congressional guidance.

And finally, although Article III does not define the powers of state courts, the prevailing lawfinding conception affects state law when federal courts perform “Erie guesses.” One of the principles underlying Erie assumes that state high courts must always make law.24 24.See Nelson, Critical Guide, supra note 5, at 975–84; cf. Michael Steven Green, Erie’s Suppressed Premise, 95 Minn. L. Rev. 1111, 1112–13 (2011) [hereinafter Green, Premise].Show MoreBut if state courts make new law in adjudications, that law could not have preexisted the relevant decision. So, rather than guess what the state supreme court would do (thereby in a very real sense making the law that state courts would have made in the future), federal courts should state that there is no law to apply, yet. A close examination of state constitutional law, however, might reveal that state courts cannot or do not make law25 25.See Green, Premise, supra note 24, at 1126–27 (discussing Georgia practices regarding unwritten law); Jason Boatright, End Judicial Lawmaking, 24 Tex. Rev. L. & Pol. 355, 370 (2020) (discussing the same in Texas).Show Moreor that even intermediate state appellate courts have some limited power to make law.

None of this is to say that these doctrines (and others premised on a judicial lawmaking power) must be undone or rejected. A return to lawfinding as the exclusive method for answering questions of substantive law would have its downsides as well. Judges might become increasingly likely to read too much into the text if they can no longer make law outside of it, our legal community might have let its lawfinding muscles decay for too long to be brought back to life, and perhaps a greater attention to unwritten law would result in a less constrained judiciary than one that could make law but was nonetheless bound by limiting doctrines. (Just to name a few.) As a result, stare decisis considerations might counsel against walking back any of these doctrines, especially those subject to a heightened statutory stare decisis standard. So perhaps the answer would be not to undo any of these doctrines, but to cabin them in recognition of their uneasy pedigree.

And of course, an exclusively lawfinding regime might be rejected on the ground that originalist interpretations of the Constitution in no way bind us today or that decades of practice and acquiescence have sanctioned judicial lawmaking. But even so, originalists and non-originalists alike should be open-eyed about the relationship between the original understanding of the judicial role and its more modern conception.

  1.  See S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting). ↑
  2.  41 U.S. (16 Pet.) 1 (1842), overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533–35 (1928) (Holmes, J., dissenting). ↑
  3.  Erie, 304 U.S. at 79 (quoting Black & White Taxicab, 276 U.S. at 533 (Holmes, J., dissenting)). ↑
  4.  James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring in the judgment); Stephanos Bibas, Blakely’s Federal Aftermath, 16 Fed. Sent’g Rep. 333, 341–42 (2004) (noting “Justice Scalia’s historical, formalist ideal”). Justice Scalia distinguished what the lawmaking legislators do by recharacterizing judicial lawfinding as a case-by-case lawmaking in which judges “discern[] what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.” James B. Beam, 501 U.S. at 549; see also id. at 546 (White, J., concurring in the judgment) (arguing that Justice Scalia’s proposed distinction does not work and relies on “citizens who are naive enough to believe” that lawfinding is possible). But that move does not completely avoid the problem because lawfinding at the Founding was not considered to be lawmaking at all. See infra note 128. ↑
  5.  See, e.g., Stephen E. Sachs, Finding Law, 107 Calif. L. Rev
    . 527, 529 (2019)

    [hereinafter Sachs, Finding Law]. To be sure, seeds of dissent have been around for much longer. See William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1514–15 (1984); Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54

    Wm. & Mary L. Rev. 921, 924–37 (2013) [hereinafter Nelson, Critical Guide]. ↑

  6.  See Micah S. Quigley, Article III Lawmaking, 30 Geo. Mason L. Rev
    .

    279, 302–05 (2022). ↑

  7.  See Charles F. Capps, Does the Law Ever Run Out?, 100 Notre Dame L. Rev. (forthcoming 2025) (manuscript at 11–12), https://papers.ssrn.com/sol3/papers.cfm?abstract_‌id=4908863 [https://perma.cc/97YH-FDPP]. ↑
  8.  See, e.g., Lester v. United States, 921 F.3d 1306, 1312–13 (11th Cir. 2019) (Pryor, J., statement respecting the denial of rehearing en banc) (asserting that judges find law in the context of retroactivity in collateral proceedings). ↑
  9.  One notable recent exception is Professor Charles Tyler. See Charles W. Tyler, Common Law Statutes, 99 Notre Dame L. Rev. 669, 679–84 (2023). But he offers other reasons for using general law in interpretation, see id. at 684–92, and avoids answering the question whether Article III requires it, id. at 685 & n.92. ↑
  10.  See, e.g., Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246, 309 (1818). ↑
  11.  See infra Subsection II.A.3. ↑
  12.  See infra Subsection II.A.3. ↑
  13.  Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Nelson, Critical Guide, supra note 5, at 951. ↑
  14.  For an argument that this conclusion did not support the holding in Erie, see Nelson, Critical Guide, supra note 5, at 951–56, 959. ↑
  15.  Erie, 304 U.S. at 78–79. For an argument that such general law demonstrably existed, see Fletcher, supra note 5, at 1514–21. For an argument that it persists post-Erie, see Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503, 547–48, 548 n.216 (2006) [hereinafter Nelson, Persistence]. ↑
  16.  Erie, 304 U.S. at 79. ↑
  17.  See, e.g., Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825) (explaining that a procedural question within the inherent power of the judiciary could be regulated by Congress, in which case the judiciary’s power was dormant); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227–28 (1821) (similar proposition for the judicial contempt power). ↑
  18.  See 1 Walter Malins Rose, A Code of Federal Procedure
    § 6

    , at 47 (1907) (“[T]he courts may not be required, nor have they a right to exercise non-judicial powers.”). ↑

  19.  See U.S. Const. art. I, § 1; id. §§ 3, 7; The Federalist No. 47, at 300–05 (James Madison) (Clinton Rossiter ed., 1961) (presenting this view of the separation of powers and collecting instances of crossovers in the states, including instances of the executive branch being given limited legislative powers). ↑
  20.  See infra notes 317–22 and accompanying text. ↑
  21.  See Banking Act of 1933, Pub. L. No. 73-66, § 12B, 48 Stat. 162, 168 (1933). ↑
  22.  See Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 Iowa L. Rev.

    735, 746–47, 747 n.42 (2001). ↑

  23.  See United States v. Kimbell Foods, Inc., 440 U.S. 715, 727–28 (1979) (“Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy ‘dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.’” (quoting United States v. Standard Oil Co., 332 U.S. 301, 310 (1947))). ↑
  24.  See Nelson, Critical Guide, supra note 5, at 975–84; cf. Michael Steven Green, Erie’s Suppressed Premise, 95 Minn. L. Rev. 1111, 1112–13 (2011) [hereinafter Green, Premise]. ↑

  25.  See Green, Premise, supra note 24, at 1126–27 (discussing Georgia practices regarding unwritten law); Jason Boatright, End Judicial Lawmaking, 24 Tex. Rev. L. & Pol

    .

    355, 370 (2020) (discussing the same in Texas). ↑

Shamed

Victims of rape, sexual assault, and sexual abuse have long had to contend with victim blaming and victim shaming. While legal scholars have had fruitful and theoretically engaging debates regarding the validity and merits of shaming sanctions and shaming criminal defendants, there has been precious little written about the shame that victims face, let alone a recognition that their interaction with shame as both a social force and an emotion is multidimensional. In a previous piece titled “Ruined,” I examined the language judges use during sentencing hearings in sexual assault cases to describe victims, such as pronouncing them “broken,” “ruined,” or “destroyed.” This Article serves as a continuation of the inquiry I started in “Ruined” by expanding in focus. It seeks to differentiate between the related concepts of shame and stigma and explain why shaming of rape victims is so common. I propose a novel typology with which to examine a rape victim’s experience and separate the shame that victims are made to feel by the criminal adjudicative process, the shame victims are supposed to perform, and the shame victims are supposed to feel into discrete components, revealing that shame in relation to such victims is multilayered and much more complex than legal scholarship has made it out to be. Even outside of the law of rape and sexual assault, this typology has potential broader applicability in criminal law and other fields of legal practice.

I share my own experiences with each of these manifestations of shame to demonstrate the usefulness of my new typology. I also relate how I have felt ashamed to come forward with my story as a practicing attorney as well as my experiences of being shamed in the legal academy. I conclude, however, with a note of optimism, reflecting on the positive things to have come with my very public self-disclosure of being a rape and sexual abuse victim and hoping to encourage others to employ personal narrative and auto-ethnographic methods in their own scholarship, as well.

Introduction

In the Getty Center in the Brentwood neighborhood of Los Angeles hangs a depiction of Lucretia painted by Italian Baroque painter Artemisia Gentileschi sometime around 1627.1 1.Artemisia Gentileschi, Lucretia, c. 1627, oil on canvas, 92.9 × 72.7 cm, Getty Center, https://www.getty.edu/art/collection/object/109Q8G [https://perma.cc/BT2Q-VJQR].Show MoreAs depicted by Gentileschi, Lucretia is obviously a noblewoman of some sort. She wears pearls not just as earrings but strung throughout her hair. Her shoulders are draped in a diaphanous, light white fabric that appears to be tulle. She gazes to the upper right corner of the frame with a plaintive look on her face. In her right hand, she holds a dagger with a silver blade. The end of the dagger’s hilt appears to be gold, ending in the small figure of an animal, maybe a rabbit. She points the dagger to her chest. According to legend, Lucretia, the faithful wife of Lucius Tarquinius Collatinus, was raped by Sextus Tarquinius, the son of the King of Rome.2 2.Lucretia, Getty, https://www.getty.edu/art/collection/object/109Q8G [https://perma.cc/BT‌2Q-VJQR] (last visited Nov. 11, 2024).Show MoreBefore stabbing herself to death, she “called on her father and her husband [to exact] vengeance” for this wrong.3 3.Id.Show MoreThe legend goes that anger over Lucretia’s death led to the fall of the Roman monarchy and the establishment of the Roman Republic.4 4.Virginia Gorlinski, Lucretia, Encyc. Britannica, https://www.britannica.com/topic/Lucreti‌a-ancient-Roman-heroine [https://perma.cc/TJE9-VXGN] (last visited Nov. 11, 2024).Show More

Artemisia Gentileschi, Lucretia (c. 1627)

A painting of a person holding a knife AI-generated content may be incorrect.

There have been many depictions of Lucretia over many hundreds of years.5 5.See Natasha H. Arora, Lucretia’s Many Bodies Through the Ages, Art & Object (Dec. 15, 2022), https://www.artandobject.com/news/lucretias-many-bodies-through-ages [https://per‌ma.cc/BS2X-LKTW] (discussing various artistic depictions of Lucretia).Show MoreYet this depiction of her by Gentileschi is the one that I, as a rape victim, have always found most relatable. It focuses exclusively on Lucretia and her anguish rather than on the political ramifications of her death. Perhaps this empathy with Lucretia’s plight makes sense on the part of the artist, given that Gentileschi was raped by the artist Agostino Tassi when she was seventeen.6 6.Mary O’Neill, Artemisia’s Moment, Smithsonian Mag. (May 2002), https://www.smithso‌nianmag.com/arts-culture/artemisias-moment-62150147/ [https://perma.cc/H6B8-GQRV].Show MoreWhile Tassi initially promised to marry Gentileschi, he later refused, leading Gentileschi to report what happened to her father, Orazio.7 7.Joseph Wm. Slap, Artemisia Gentileschi: Further Notes, 42 Am. Imago 335, 337 (1985).Show MoreAt the time, “rape was viewed more as a crime against a family’s honor than as a violation of a woman,” and it was Orazio, rather than Gentileschi herself, who pressed charges against Tassi.8 8.O’Neill, supra note 6.Show MoreThe trial took more than half a year.9 9.Elizabeth S. Cohen, The Trials of Artemisia Gentileschi: A Rape as History, 31 Sixteenth Century J.47, 49 (2000). This does not mean, however, that it was a trial in the sense with which we would be familiar today. Rather, “[t]he trial dragged on through seven months of intermittent interrogations and legal maneuvers. During at least the first six weeks, there continued private negotiations toward a settlement ending in marriage.” Id.Show MoreGentileschi testified at the trial while tortured, purportedly to assure the truthfulness of her testimony.10 10.O’Neill, supra note 6.Show MoreAs she was put to thumbscrews, she exclaimed to Tassi, “This is the ring you give me, and these are your promises[!]”11 11.Slap, supra note 7, at 337 (quoting Rudolf Wittkower & Margot Wittkower, Born Under Saturn: The Character and Conduct of Artists 162 (1963)).Show More

Perhaps to today’s reader, both stories—Lucretia’s and Gentileschi’s—sound remote and archaic. There is, however, a long association between those attempting suicide and those reporting histories of sexual assault.12 12.Jonathan R.T. Davidson, Dana C. Hughes, Linda K. George & Dan G. Blazer, The Association of Sexual Assault and Attempted Suicide Within the Community, 53 Archives Gen. Psychiatry 550, 550 (1996).Show MoreBy one estimate, rape victims are 4.1 times more likely to contemplate suicide and are 13 times more likely to attempt suicide compared to non-victims.13 13.Dean G. Kilpatrick, Christine N. Edmunds & Anne Seymour, Nat’l Victim Ctr. & Crime Victims Rsch. & Treatment Ctr., Rape in America: A Report to the Nation 7 (1992).Show MoreMoreover, while victims no longer face physical torture at trial, they may still be tormented in other ways. For example, if victims do not want to testify, they can be threatened with jail time until they do.14 14.See Sexual Assault Kit Initiative & RTI Int’l, “Next-Level” Compulsion of Victim Testimony in Crimes of Sexual Violence Against Adults: Prosecutorial Considerations Before Using Bench Warrants/Body Attachments and Material Witness Warrants 2–3 (2022), https://sakitta.org/toolkit/docs/14451SAKINextLevelComplsnVctmTstmny.pdf [https://perm‌a.cc/T5ZT-Z8JR] (discussing the challenges victims of sexual assault may face if held in contempt for not complying with an order to testify).Show MoreThose that do testify risk being discredited or degraded and may have their experiences essentialized.15 15.See infra Part II.Show More

Victims of sexual assault continue to be shamed in a multitude of ways today. This Article introduces a typology of shame to consider when thinking about how victims are treated by the legal system and subjected to shaming through those mechanisms: the shame that victims feel or are made to feel by both investigations and proceedings in court, the shame that victims are supposed to perform for others, and the shame that victims are supposed to feel.

The title of my previous article addressing the language used by judges during sentencing in sexual assault cases is “Ruined.”16 16.Maybell Romero, “Ruined,” 111 Geo. L.J. 237 (2022).Show MoreThe reason there are quotation marks around that title is the basis for the argument of the paper itself; while judges may wish to pronounce rape victims “ruined,” it is the victims themselves who should be allowed to determine and pronounce their own fate.17 17.See generally id. (arguing that a judge’s pronouncement of a victim as “ruined” is stigmatizing and perpetuates myths about victimhood).Show MoreBut with the title of this paper, Shamed, I dispense with those quotation marks, not because victims should be ashamed of the harm that has been done to them, but because attempts to shame victims are real. They are pervasive. And they are harmful, even when such attempts are not immediately apparent. Shaming of sexual assault victims exists in police investigations, courtrooms, interpersonal relationships, and even within written laws. Not only have I been shamed, but I have shamed others in the course of prosecuting sexual assault cases. As Robert Cover has explained, “interpretive act[s]” on the part of judges are themselves “violent deed[s]” that both “authorize[] and legitim[ize]” acts of violence.18 18.See Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601, 1614 (1986).Show MoreLegal interpretation “depends upon the social practice of violence” to be effective.19 19.Id. at 1613.Show More

This Article considers the existence of shame and its operationalization in the law in relation to rape and sexual assault. Shame itself is its own social sanction, and shaming is its own social practice. While judges and perhaps prosecutors attempt to use shame against sexual offenders as a legal sanction, shame is, primarily, a social sanction. Shame itself is about enforcing social norms, and so many of those norms enshrined in the law and larger culture are harmful and regressive when it comes to sexual assault.

I intend to consider shame—the concept and its operation—more closely in this Article at different junctures in the law and in society than I considered in “Ruined.” While other scholarship has also examined shame as well as shaming sanctions, this Article is unique in relating many of my own experiences of being shamed and wielding shame as a child, as a young female prosecutor, and especially, as a law professor and legal scholar. From this perspective, I also examine different forms of sexual assault shaming in legal professional spheres.

At multiple prosecution trainings early in my career, I and everyone else in the audience were informed that people (usually, specifically women) who have gone through sexual assault should never work on sexual assault cases because they would be too “biased” and would lack the objectivity to do the job well—that somehow victims of sexual assault would be overtaken by their emotions to the point of rendering them ineffective.20 20.When using the word “ineffective,” I mean it in a much more general sense, rather than as a specific reference to ineffective assistance of counsel as discussed in Strickland v. Washington, 466 U.S. 668 (1984), and its progeny.Show MoreIn an environment like that one, I certainly did not feel free to come forward with my story for fear that colleagues, law enforcement officers with whom I had to work, and maybe even other victims would judge me as not professionally competent to work on rape and sexual assault cases. When Kim Foxx, former Cook County, Illinois, State’s Attorney (the equivalent office of an elected District Attorney), came forward as a victim of child sexual abuse21 21.Carol Felsenthal, Kim Foxx Wants to Tell You a Story, Chi. Mag. (Dec. 10, 2018, 12:22 PM), https://www.chicagomag.com/chicago-magazine/january-2019/kim-foxx-wants-t‌o-tell-you-a-story/ [https://perma.cc/ZGE7-JDKH].Show Moreand rape as a college student,22 22.Carol Thompson & Dorothy Tucker, Kim Foxx Calls Findings Showing as Many as 1 in 3 Black Women in 2022 Were Victims of Crime “Jarring,” CBS News (Dec. 4, 2023, 10:27 PM), https://www.cbsnews.com/chicago/news/kimberly-foxx-findings-black-women-c‌rime-jarring/ [https://perma.cc/V25P-JVH2].Show More her objectivity and professional competency were privately questioned in a way unlikely to have happened if she had been the victim of a less stigmatized crime like burglary. Coming forward as a victim of sexual assault seems to flout many long-established trappings of respectability in the legal profession.

I have also experienced this professional shaming to some extent after writing, publishing, and presenting my recent article, “Ruined.” While the vast majority of the feedback that I have received has been encouraging and substantive, some of it has been very similar to what I heard as a prosecutor working on sexual assault cases. For example, I have had people praise my article, then abruptly ask if it was embarrassing to have it appear online or in print. I had a fellow law professor at a regional workshop critique the work on grounds that he felt he could not critique it at all, contending that I had rendered my arguments unassailable from normal inquiry because I had shared my story. In that sense, he performed a very similar maneuver to that which I heard in prosecution trainings and to that which Kim Foxx has faced—arguing that my experience has somehow rendered me unable to do my job well or even properly, and that it might have been better if I had never talked about it at all. Yet another couple of professors have told me that they refused to read the piece because they found the premise of another law professor sharing such a story too “uncomfortable.”

Law professors do not like being uncomfortable. Sure, they may enjoy being intellectually challenged; they may even enjoy arguing with each other over philosophical differences, interpretive differences, or ideological conflicts generally. Some of us may even enjoy debating the nature of legal scholarship—what it is, what it can be, and what it should be. But we do not like being uncomfortable, which is how I think much of my recent scholarship makes people feel. It is not meant to be enjoyable or easy, but rather to embrace the tradition of Martha Fineman and her approach to having “uncomfortable conversations.”23 23.Martha Albertson Fineman, Introduction: Feminist and Queer Legal Theory, in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations 1, 1 (Martha Albertson Fineman, Jack E. Jackson & Adam P. Romero eds., 2009).Show MoreThis is the sort of discomfort that has led some law professors to stop teaching rape and sexual assault law in their first-year criminal law courses.24 24.Jeannie Suk Gersen, The Trouble with Teaching Rape Law, New Yorker (Dec. 15, 2014), https://www.newyorker.com/news/news-desk/trouble-teaching-rape-law.Show MoreThese uncomfortable conversations, however, need to be had, and I think by not having them, we do our students, the legal profession, and even ourselves a great disservice.

Part I of this Article starts by defining (or attempting to define) shame while distinguishing it from the related concept of stigma. It answers questions regarding why people engage in shaming victims, specifically those who have been raped or sexually assaulted. It also presents historical examples of shaming to demonstrate that the shame that is heaped upon victims today is of a long historical, cultural, and legal lineage. Not only does Part I explore examples of this shaming in the law, but it also offers a sampling of examples from literature, art, and popular culture to show just how pervasive this phenomenon is. Part II examines current ways that victims are shamed specifically by the criminal legal system, introducing a typology of shame and shaming that is the first of its kind in legal scholarship. Part III examines shaming in professional settings, particularly in the legal profession and in legal academia. It reflects on my experiences writing and publishing “Ruined” and scrutinizes what certain pedagogical choices in the criminal law classroom communicate to students. In that sense, it looks at shame in the larger legal and law school cultural environment. The Article closes by advocating for having the uncomfortable conversations that can push back against the shaming with which I and this Article take issue.

  1.  Artemisia Gentileschi, Lucretia, c. 1627, oil on canvas, 92.9 × 72.7 cm, Getty Center, https://www.getty.edu/art/collection/object/109Q8G [https://perma.cc/BT2Q-VJQR]. ↑
  2.  Lucretia, Getty, https://www.getty.edu/art/collection/object/109Q8G [https://perma.cc/BT‌2Q-VJQR] (last visited Nov. 11, 2024). ↑
  3.  Id. ↑
  4.  Virginia Gorlinski, Lucretia, Encyc. Britannica, https://www.britannica.com/topic/Lucreti‌a-ancient-Roman-heroine [https://perma.cc/TJE9-VXGN] (last visited Nov. 11, 2024). ↑
  5.  See Natasha H. Arora, Lucretia’s Many Bodies Through the Ages, Art & Object (Dec. 15, 2022), https://www.artandobject.com/news/lucretias-many-bodies-through-ages [https://per‌ma.cc/BS2X-LKTW] (discussing various artistic depictions of Lucretia). ↑
  6.  Mary O’Neill, Artemisia’s Moment, Smithsonian Mag. (May 2002), https://www.smithso‌nianmag.com/arts-culture/artemisias-moment-62150147/ [https://perma.cc/H6B8-GQRV]. ↑
  7.  Joseph Wm. Slap, Artemisia Gentileschi: Further Notes, 42 Am. Imago 335, 337 (1985). ↑
  8.  O’Neill, supra note 6. ↑
  9.  Elizabeth S. Cohen, The Trials of Artemisia Gentileschi: A Rape as History, 31 Sixteenth Century
    J.

    47, 49 (2000). This does not mean, however, that it was a trial in the sense with which we would be familiar today. Rather, “[t]he trial dragged on through seven months of intermittent interrogations and legal maneuvers. During at least the first six weeks, there continued private negotiations toward a settlement ending in marriage.” Id. ↑

  10.  O’Neill, supra note 6. ↑
  11.  Slap, supra note 7, at 337 (quoting Rudolf Wittkower & Margot Wittkower, Born Under Saturn: The Character and Conduct of Artists 162 (1963)). ↑
  12.  Jonathan R.T. Davidson, Dana C. Hughes, Linda K. George & Dan G. Blazer, The Association of Sexual Assault and Attempted Suicide Within the Community, 53 Archives Gen. Psychiatry 550, 550 (1996). ↑
  13.  Dean G. Kilpatrick, Christine N. Edmunds & Anne Seymour, Nat’l Victim Ctr. & Crime Victims Rsch. & Treatment Ctr., Rape in America: A Report to the Nation 7 (1992). ↑
  14.  See Sexual Assault Kit Initiative & RTI Int’l, “Next-Level” Compulsion of Victim Testimony in Crimes of Sexual Violence Against Adults: Prosecutorial Considerations Before Using Bench Warrants/Body Attachments and Material Witness Warrants 2–3 (2022), https://sakitta.org/toolkit/docs/14451SAKINextLevelComplsnVctmTstmny.pdf [https://perm‌a.cc/T5ZT-Z8JR] (discussing the challenges victims of sexual assault may face if held in contempt for not complying with an order to testify). ↑
  15.  See infra Part II. ↑
  16.  Maybell Romero, “Ruined,” 111 Geo. L.J. 237 (2022). ↑
  17.  See generally id. (arguing that a judge’s pronouncement of a victim as “ruined” is stigmatizing and perpetuates myths about victimhood). ↑
  18.  See Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601, 1614 (1986). ↑
  19.  Id. at 1613. ↑
  20.  When using the word “ineffective,” I mean it in a much more general sense, rather than as a specific reference to ineffective assistance of counsel as discussed in Strickland v. Washington, 466 U.S. 668 (1984), and its progeny. ↑
  21.  Carol Felsenthal, Kim Foxx Wants to Tell You a Story, Chi. Mag. (Dec. 10, 2018, 12:22 PM), https://www.chicagomag.com/chicago-magazine/january-2019/kim-foxx-wants-t‌o-tell-you-a-story/ [https://perma.cc/ZGE7-JDKH]. ↑
  22.  Carol Thompson & Dorothy Tucker, Kim Foxx Calls Findings Showing as Many as 1 in 3 Black Women in 2022 Were Victims of Crime “Jarring,” CBS News (Dec. 4, 2023, 10:27 PM), https://www.cbsnews.com/chicago/news/kimberly-foxx-findings-black-women-c‌rime-jarring/ [https://perma.cc/V25P-JVH2]. ↑
  23.  Martha Albertson Fineman, Introduction: Feminist and Queer Legal Theory, in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations 1, 1 (Martha Albertson Fineman, Jack E. Jackson & Adam P. Romero eds., 2009). ↑

  24.  Jeannie Suk Gersen, The Trouble with Teaching Rape Law, New Yorker (Dec. 15, 2014), https://www.newyorker.com/news/news-desk/trouble-teaching-rape-law. ↑

Regulating Hidden AI Authorship

With the rapid emergence of high-quality generative artificial intelligence (“AI”), some have advocated for mandatory disclosure when the technology is used to generate new text, images, or video. But the precise harms posed by nontransparent uses of generative AI have not been fully explored. While the use of the technology to produce material that masquerades as factual (“deepfakes”) is clearly deceptive, this Article focuses on a more ambiguous area: the consumer’s interest in knowing whether works of art or entertainment were created using generative AI.

In the markets for creative content—fine art, books, movies, television, music, and the like—producers have several financial reasons to hide the role of generative AI in a work’s creation. Copyright law is partially responsible. The Copyright Office and courts have concluded that only human-authored works are copyrightable, meaning much AI-generated content falls directly into the public domain. Producers thus have an incentive to conceal the role of generative AI in a work’s creation because disclosure could jeopardize their ability to secure copyright protection and monetize the work.

Whether and why this obfuscation harms consumers is a different matter. The law has never required disclosure of the precise ways a work is created; indeed, failing to publicly disclose the use of a ghostwriter or other creative assistance is not actionable. But AI authorship is different for several reasons. There is growing evidence that consumers have strong ethical and aesthetic preferences for human-created works and understand the failure to disclose AI authorship as deceptive. Moreover, hidden AI authorship is normatively problematic from the perspective of various theories of artistic value. Works that masquerade as human-made destabilize art’s ability to encourage self-definition, empathy, and democratic engagement, turning all creative works into exclusively entertainment-focused commodities.

This Article also investigates ways to facilitate disclosure of the use of generative AI in creative works. Industry actors could be motivated to self-regulate, adopting a provenance-tracking or certification scheme. And Federal Trade Commission (“FTC”) enforcement could provide some additional checks on the misleading use of AI in a work’s creation. Intellectual property law could also help incentivize disclosure. In particular, doctrines designed to prevent the overclaiming of material in the public domain—such as copyright misuse—could be used to raise the financial stakes of failing to disclose the role of AI in a work’s creation.

Introduction

When Marvel Studios’ big-budget series, Secret Invasion, premiered in June 2023, most viewers did not give a second thought to the show’s opening credits, which featured angular alien faces, a toothless Samuel L. Jackson, and swirling green cityscapes. Shortly after the show premiered, however, director and executive producer Ali Salim made an unusual admission: the credit sequence’s visuals had been generated using artificial intelligence (“AI”).1 1.Zosha Millman, Yes, Secret Invasion’s Opening Credits Scene Is AI-Made—Here’s Why, Polygon (June 22, 2023, 7:16 PM), https://www.polygon.com/23767640/ai-mcu-secret-invas‌ion-opening-credits [https://perma.cc/5WPN-93TY].Show More Public outcry was swift. Many criticized the use of generative AI by a wealthy studio as “unethical,” especially in light of Hollywood labor disputes driven by the possible effects of generative AI on acting and writing jobs.2 2.See Angela Watercutter, Marvel’s Secret Invasion AI Scandal Is Strangely Hopeful, Wired (June 23, 2023, 9:00 AM), https://www.wired.com/story/marvel-secret-invasion-artificial-int‌elligence/.Show More Others argued that Marvel’s use of AI was lazy, yielding images devoid of artistic merit.3 3.See Dani Di Placido, Marvel’s AI-Generated ‘Secret Invasion’ Sequence Sparks Backlash, Forbes (June 23, 2023, 11:47 AM), https://www.forbes.com/sites/danidiplacido/2023/06/21/t‌he-big-backlash-against-marvels-secret-invasion-explained/?sh=2ef04c17344e.Show More The criticism ultimately prompted Marvel to walk back its admission, explaining that “AI is just one tool among the array of tool sets our artists used. No artists’ jobs were replaced by incorporating these new tools; instead, they complemented and assisted our creative teams.”4 4.Carolyn Giardina, ‘Secret Invasion’ Opening Using AI Cost “No Artists’ Jobs,” Says Studio That Made It, Hollywood Rep. (June 21, 2023, 8:12 PM), https://www.hollywoodrepo‌rter.com/tv/tv-news/secret-invasion-ai-opening-1235521299/ [https://perma.cc/3DTD-U4‌6W].Show More

With the dramatic arrival of high-quality generative AI systems,5 5.For a full discussion of what I mean by “generative AI,” see infra Section I.A.Show More scholars and policy-makers have begun debating the potential harms posed by the technology’s many possible applications. Much of this debate has centered on generative AI’s ability to create materials that masquerade as factual—in particular, false photorealistic images and audiovisual content, commonly known as “deepfakes”—which can harm individual reputations or further misinformation that undermines public trust.6 6.See generally Lisa Macpherson, Lies, Damn Lies, and Generative Artificial Intelligence: How GAI Automates Disinformation and What We Should Do About It, Pub. Knowledge (Aug. 7, 2023), https://publicknowledge.org/lies-damn-lies-and-generative-artificial-intellige‌nce-how-gai-automates-disinformation-and-what-we-should-do-about-it/ [https://perma.cc/9‌BNL-QN9S] (discussing the potential harm to the integrity of news through the use of generative AI); Adam Satariano & Paul Mozur, The People Onscreen Are Fake. The Disinformation Is Real, N.Y. Times (Feb. 7, 2023), https://www.nytimes.com/2023/02/07/tec‌hnology/artificial-intelligence-training-deepfake.html (describing how deepfakes make it difficult to separate reality from forgeries and enable the spread of propaganda by foreign governments); Todd C. Helmus, Artificial Intelligence, Deepfakes, and Disinformation: A Primer, RAND Corp. (July 6, 2022), https://www.rand.org/pubs/perspectives/PEA1043-1.ht‌ml [https://perma.cc/HD55-62L5] (observing that, in an increasingly polarized and fact-resistant political climate, deepfakes pose a potent threat). See also Council Regulation 2024/1689, art. 134, 2024 O.J. (L) 1, 34 (EU) (requiring creators of deepfakes to disclose use of AI).Show More But the Secret Invasion controversy illustrates an underexplored dimension of the lack of transparency in many uses of generative AI: Are consumers also deceived by nonfactual, AI-generated creative works that masquerade as human-made? Put another way, does hidden AI “authorship”—that is, the undisclosed use of AI to produce expression that we generally consider to be within the purview of human creators7 7.As discussed below, AI cannot be an author for legal purposes, so when I say “AI authorship,” I refer to situations in which AI has accomplished the creative work that we generally associate with human authorship. See infra Subsections I.B.2, II.C.2.Show More—pose harm to the public?

This Article provides the first comprehensive treatment of this question, as well as the problem of hidden AI authorship more generally. In so doing, this Article makes three contributions. The first contribution is descriptive: the Article examines how and why producers of commercial creative works—visual art, books, television, music, films, and more—might choose to hide the role of generative AI in the production of new content. Though not immediately obvious, this phenomenon is deeply intertwined with intellectual property law, and copyright law in particular. As copyright decision-makers increasingly find that AI-generated works are largely unprotectable, producers have an incentive to hide their use of the technology. The second contribution is normative: the Article argues that the hiding of AI authorship indeed poses harm to consumers, albeit a less straightforward form of harm than the clear problems posed by deceptive deepfakes. This harm must be understood by examining the strong evidence that many consumers prefer human-created works of art and entertainment, as well as the broader social significance of human authorship in art’s ability to foster self-definition, empathy, and political engagement. The third contribution is prescriptive: the Article identifies various regulatory options, including existing consumer protection and intellectual property law regimes, that could be used to encourage greater transparency among the sellers of AI-generated content, enabling better informed consumer choice.

How might generative AI come to be frequently, but nontransparently, used to create new works of art and entertainment? As Part I explores, this problem is already emerging. Generative AI is quickly being incorporated into content creation, leading large content producers to encounter a dilemma like the one faced by Marvel: whether or not to disclose the role of the technology in a work’s creation. As the creators of Secret Invasion discovered, many consumers seem to bristle at the use of the technology. Indeed, recent empirical research suggests that many consumers consider “AI-generated” works inferior, even if they cannot tell from the work itself that AI had a role in its creation.8 8.See infra Subsection I.B.1; see, e.g., Lucas Bellaiche et al., Humans Versus AI: Whether and Why We Prefer Human-Created Compared to AI-Created Artwork, 8 Cognitive Rsch., 2023, at 1, 3 (observing that, across multiple artistic mediums, study participants preferred art labelled “human-created” over art labelled “AI-created”).Show More This yields a clear financial incentive to hide the AI provenance of a work from the public.

Current trends in copyright law compound producers’ incentives to hide their use of generative AI. It is black-letter law that a work created by a nonhuman is ineligible for copyright protection.9 9.See, e.g., Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018) (monkey that took “selfie” photos could not claim copyright for lack of standing); see also infra Subsection I.B.2 (discussing limits on copyright protections for works not produced by human beings).Show More Courts and the Copyright Office10 10.The Copyright Office is a regulatory body housed in the Library of Congress that is responsible for registering new works. See infra Subsection I.B.2.Show More have emphasized the importance of “elements of human creativity” when assessing whether an AI-generated work can be registered, such as human-made decisions about how to organize and structure AI-generated material in a final work.11 11.See, e.g., Letter from Robert J. Kasunic, U.S. Copyright Off. Rev. Bd., to Van Lindberg, Taylor Eng. Duma LLP, Zarya of the Dawn (Registration # VAu001480196), at 5–8 (Feb. 21, 2023), https://www.cop‌yright.gov/docs/zarya-of-the-daw‌n.pdf [https://perma.cc/X54U-MQ‌4F] (finding that AI-generated images in a comic book were unprotectable but the comic book could still be thinly protected as a compilation).Show More For content producers, this means that highlighting the role of generative AI in a work’s production can compromise efforts to achieve copyright registration.12 12.See, e.g., Thaler v. Perlmutter, 687 F. Supp. 3d 140, 149–50 (D.D.C. 2023) (upholding denial of copyright registration where “the record designed by plaintiff from the outset of his application for copyright registration . . . [showed] the absence of any human involvement in the creation of the work,” precluding copyrightability for AI-generated image); see also infra Subsection I.B.2 (describing instances in which acknowledging the role of AI in a work’s creation foreclosed copyright protection).Show More Failure to obtain protection essentially means that new content immediately falls into the public domain and cannot be monetized. Thus, if trends in the law continue in their likely direction, content producers will increasingly try to hide the role of AI in new creative works to ensure such works remain protectable.13 13.Disclosure to the Copyright Office and public disclosure are interrelated. The Copyright Office has begun listing registrations that explicitly state whether a work is a product of generative AI (noting that the AI-produced elements are unprotectable). These registrations are easily publicly searchable. See infra Section I.C.Show More

Should this obfuscation be considered a problem? After all, if a consumer enjoys a work like the Secret Invasion credit images, does it matter whether they know that work was produced using generative AI? Part II addresses this question, arguing that consumers seem to have a range of “process preferences”14 14.See Douglas A. Kysar, Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 Harv. L. Rev. 525, 529 (2004) (examining how “consumer preferences may be heavily influenced by information regarding the manner in which goods are produced”).Show More—that is, preferences that relate to how a work was created, rather than just the work itself—that implicate the use of generative AI. One issue is ethical: consumers may prefer human-created works because of ethical concerns over AI supplanting human labor.15 15.See infra Subsection II.A.1.Show More Another issue is aesthetic: as showcased in old debates regarding the use of “mechanical reproduction” in art, human creation can confer an element of authenticity on a creative work that a machine-generated work lacks.16 16.See infra Subsection II.A.2.Show More Finally, consumers have deep-seated connections to specific artists, born out of a sense of fandom, which are undermined by the more specific example of AI-generated works that mimic an artist’s voice or style.17 17.See infra Subsection II.A.3.Show More Considering these preferences, obscuring the role of generative AI in a work’s creation may prevent a consumer from making an informed decision about whether to consume it.

But just because consumers have these preferences does not mean the law must respect them.18 18.See infra Part II (examining difficulties of determining whether consumer preferences should give rise to regulatory action).Show More Part II thus also provides a separate normative case for why consumers who care about human authorship should be taken seriously. As aesthetic and ethical theorists have argued, authorship and readership19 19.By “readership,” I mean the experience of engaging with a work of art or entertainment. See infra Section II.B.Show More are fundamentally social activities; through art, the public can engage in ongoing “dialogic” processes of self-definition, ethical development, and political engagement. Novelist and journalist Jay Caspian Kang has recently put it more plainly: “[T]he reason we read books and listen to songs and look at paintings is to see the self in another self, or even to just see what other people are capable of creating.”20 20.Jay Caspian Kang, What’s the Point of Reading Writing by Humans?, New Yorker (Mar. 31, 2023), https://www.newyorker.com/news/our-columnists/whats-the-point-of-reading-writ‌ing-by-humans; see also infra note 199 (surveying other writers’ similar perspectives).Show More Thus, even if, as some have argued, the author’s “intent” lacks significance,21 21.See infra Subsection II.B.1 (noting that postmodern theorists have questioned the importance of the individual author). See generally Roland Barthes, The Death of the Author, in Image, Music, Text 142 (Stephen Heath trans., 1977) (criticizing literary critics’ preoccupation with individual authors and instead emphasizing the importance of readers as recipients and interpreters of literary texts).Show More the author’s and reader’s basic shared humanness can be essential to allowing art to play a meaningful social and ethical function. The undisclosed use of generative AI in authoring a work22 22.Importantly, I distinguish between truly “authoring” a work—that is, generating something that is at the creative heart of the work—and using AI in a merely assistive role. Copyright’s doctrinal distinction between these two concepts corresponds well to this normative distinction. See infra Subsection II.C.2. I also explain why the use of a human ghostwriter does not pose the same problems as undisclosed AI authorship. See infra Subsection II.C.1.Show More fundamentally destabilizes this dialogue between author and reader, robbing art of its social value and turning it into an exclusively entertainment-focused commodity.23 23.See infra Subsection II.B.2 (exploring how lack of knowledge regarding a work’s provenance forces consumers to exclusively engage with works of art on market-based, rather than social, terms).Show More The argument here is not that AI authorship is inherently immoral; indeed, AI might yield a range of works that consumers enjoy. Rather, it is that such use must be disclosed in order to allow consumers to choose whether and on what terms they wish to engage with a work.

The obvious solution to the problem of undisclosed AI authorship is to provide consumers with information about a work’s provenance, so that they can make an informed choice. Part III explores various regulatory options for fostering transparency, examining their benefits and shortcomings. An affirmative disclosure regime could come about through industry self-regulation; if it is true that some consumers prefer human-made works, the market would logically step in to provide this information.24 24.See infra Subsection III.A.1 (examining private ordering solutions, such as provenance tracking and a certification regime).Show More A legislative transparency mandate would also—and more thoroughly—accomplish this task.25 25.See infra Subsection III.A.2.Show More In lieu of a comprehensive affirmative disclosure regime, the FTC could also target specific instances in which producers deceptively omit information about a work’s origins so as to mislead consumers.26 26.See infra Section III.B.Show More

An additional, and perhaps more politically feasible,27 27.See infra Section III.C (exploring barriers to legislation and FTC enforcement).Show More set of options is offered by existing intellectual property law. Such an approach would look to IP’s existing doctrines as a way of forcing information, making it costlier for producers to hide the fact that they used generative AI to produce works. In particular, litigants could take advantage of the often-ignored doctrine of copyright misuse to police those who assert that an entire work was human-created, when, in fact, it was a product of AI. Such assertions should fall within one of the categories of copyright misuse: the overclaiming of material that is in the public domain.28 28.See infra Subsection III.C.1; see also infra Subsection I.B.2 (noting that AI-generated material is inherently in the public domain due to lack of authorship, rendering many AI-derived works unprotectable or only thinly protectable).Show More Using the copyright misuse doctrine in litigation would raise the financial risks of surreptitiously using AI-generated materials, incentivizing rightsholders to disclose (and disclaim) this content.29 29.See infra Subsection III.C.1. In particular, a copyright misuse finding prevents a rightsholder from enforcing even legally protectable aspects of their work, rendering the work completely uncopyrightable and essentially valueless. See infra Subsection III.C.1.Show More Trademark law and the right of publicity could also play a role in raising the financial stakes of nontransparency. For the specific subset of AI-generated works that mimic a human artist’s voice or likeness,30 30.See infra Subsection II.A.3 (discussing examples such as “fake Drake”).Show More trademark and the right of publicity provide causes of action that could subject producers and distributors to damages.31 31.See infra Subsection III.C.2.Show More In combination, these various tools could ideally achieve a world in which information about most works’ provenance is readily accessible to consumers.

  1.  Zosha Millman, Yes, Secret Invasion’s Opening Credits Scene Is AI-Made—Here’s Why, Polygon (June 22, 2023, 7:16 PM), https://www.polygon.com/23767640/ai-mcu-secret-invas‌ion-opening-credits [https://perma.cc/5WPN-93TY]. ↑

  2.  See Angela Watercutter, Marvel’s Secret Invasion AI Scandal Is Strangely Hopeful, Wired (June 23, 2023, 9:00 AM), https://www.wired.com/story/marvel-secret-invasion-artificial-int‌elligence/. ↑

  3.  See Dani Di Placido, Marvel’s AI-Generated ‘Secret Invasion’ Sequence Sparks Backlash, Forbes (June 23, 2023, 11:47 AM), https://www.forbes.com/sites/danidiplacido/2023/06/21/t‌he-big-backlash-against-marvels-secret-invasion-explained/?sh=2ef04c17344e. ↑

  4.  Carolyn Giardina, ‘Secret Invasion’ Opening Using AI Cost “No Artists’ Jobs,” Says Studio That Made It, Hollywood Rep. (June 21, 2023, 8:12 PM), https://www.hollywoodrepo‌rter.com/tv/tv-news/secret-invasion-ai-opening-1235521299/ [https://perma.cc/3DTD-U4‌6W]. ↑

  5.  For a full discussion of what I mean by “generative AI,” see infra Section I.A. ↑

  6.  See generally Lisa Macpherson, Lies, Damn Lies, and Generative Artificial Intelligence: How GAI Automates Disinformation and What We Should Do About It, Pub. Knowledge (Aug. 7, 2023), https://publicknowledge.org/lies-damn-lies-and-generative-artificial-intellige‌nce-how-gai-automates-disinformation-and-what-we-should-do-about-it/ [https://perma.cc/9‌BNL-QN9S] (discussing the potential harm to the integrity of news through the use of generative AI); Adam Satariano & Paul Mozur, The People Onscreen Are Fake. The Disinformation Is Real, N.Y. Times (Feb. 7, 2023), https://www.nytimes.com/2023/02/07/tec‌hnology/artificial-intelligence-training-deepfake.html (describing how deepfakes make it difficult to separate reality from forgeries and enable the spread of propaganda by foreign governments); Todd C. Helmus, Artificial Intelligence, Deepfakes, and Disinformation: A Primer, RAND Corp. (July 6, 2022), https://www.rand.org/pubs/perspectives/PEA1043-1.ht‌ml [https://perma.cc/HD55-62L5] (observing that, in an increasingly polarized and fact-resistant political climate, deepfakes pose a potent threat). See also Council Regulation 2024/1689, art. 134, 2024 O.J. (L) 1, 34 (EU) (requiring creators of deepfakes to disclose use of AI). ↑

  7.  As discussed below, AI cannot be an author for legal purposes, so when I say “AI authorship,” I refer to situations in which AI has accomplished the creative work that we generally associate with human authorship. See infra Subsections I.B.2, II.C.2. ↑

  8.  See infra Subsection I.B.1; see, e.g., Lucas Bellaiche et al., Humans Versus AI: Whether and Why We Prefer Human-Created Compared to AI-Created Artwork, 8 Cognitive Rsch., 2023, at 1, 3 (observing that, across multiple artistic mediums, study participants preferred art labelled “human-created” over art labelled “AI-created”). ↑

  9.  See, e.g., Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018) (monkey that took “selfie” photos could not claim copyright for lack of standing); see also infra Subsection I.B.2 (discussing limits on copyright protections for works not produced by human beings). ↑

  10.  The Copyright Office is a regulatory body housed in the Library of Congress that is responsible for registering new works. See infra Subsection I.B.2. ↑

  11.  See, e.g., Letter from Robert J. Kasunic, U.S. Copyright Off. Rev. Bd., to Van Lindberg, Taylor Eng. Duma LLP, Zarya of the Dawn (Registration # VAu001480196), at 5–8 (Feb. 21, 2023), https://www.cop‌yright.gov/docs/zarya-of-the-daw‌n.pdf [https://perma.cc/X54U-MQ‌4F] (finding that AI-generated images in a comic book were unprotectable but the comic book could still be thinly protected as a compilation). ↑

  12.  See, e.g., Thaler v. Perlmutter, 687 F. Supp. 3d 140, 149–50 (D.D.C. 2023) (upholding denial of copyright registration where “the record designed by plaintiff from the outset of his application for copyright registration . . . [showed] the absence of any human involvement in the creation of the work,” precluding copyrightability for AI-generated image); see also infra Subsection I.B.2 (describing instances in which acknowledging the role of AI in a work’s creation foreclosed copyright protection). ↑

  13.  Disclosure to the Copyright Office and public disclosure are interrelated. The Copyright Office has begun listing registrations that explicitly state whether a work is a product of generative AI (noting that the AI-produced elements are unprotectable). These registrations are easily publicly searchable. See infra Section I.C. ↑

  14.  See Douglas A. Kysar, Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 Harv. L. Rev. 525, 529 (2004) (examining how “consumer preferences may be heavily influenced by information regarding the manner in which goods are produced”). ↑

  15.  See infra Subsection II.A.1. ↑

  16.  See infra Subsection II.A.2. ↑

  17.  See infra Subsection II.A.3. ↑

  18.  See infra Part II (examining difficulties of determining whether consumer preferences should give rise to regulatory action). ↑

  19.  By “readership,” I mean the experience of engaging with a work of art or entertainment. See infra Section II.B. ↑

  20.  Jay Caspian Kang, What’s the Point of Reading Writing by Humans?, New Yorker (Mar. 31, 2023), https://www.newyorker.com/news/our-columnists/whats-the-point-of-reading-writ‌ing-by-humans; see also infra note 199 (surveying other writers’ similar perspectives). ↑

  21.  See infra Subsection II.B.1 (noting that postmodern theorists have questioned the importance of the individual author). See generally Roland Barthes, The Death of the Author, in Image, Music, Text 142 (Stephen Heath trans., 1977) (criticizing literary critics’ preoccupation with individual authors and instead emphasizing the importance of readers as recipients and interpreters of literary texts). ↑

  22.  Importantly, I distinguish between truly “authoring” a work—that is, generating something that is at the creative heart of the work—and using AI in a merely assistive role. Copyright’s doctrinal distinction between these two concepts corresponds well to this normative distinction. See infra Subsection II.C.2. I also explain why the use of a human ghostwriter does not pose the same problems as undisclosed AI authorship. See infra Subsection II.C.1. ↑

  23.  See infra Subsection II.B.2 (exploring how lack of knowledge regarding a work’s provenance forces consumers to exclusively engage with works of art on market-based, rather than social, terms). ↑

  24.  See infra Subsection III.A.1 (examining private ordering solutions, such as provenance tracking and a certification regime). ↑

  25.  See infra Subsection III.A.2. ↑

  26.  See infra Section III.B. ↑

  27.  See infra Section III.C (exploring barriers to legislation and FTC enforcement). ↑

  28.  See infra Subsection III.C.1; see also infra Subsection I.B.2 (noting that AI-generated material is inherently in the public domain due to lack of authorship, rendering many AI-derived works unprotectable or only thinly protectable). ↑

  29.  See infra Subsection III.C.1. In particular, a copyright misuse finding prevents a rightsholder from enforcing even legally protectable aspects of their work, rendering the work completely uncopyrightable and essentially valueless. See infra Subsection III.C.1. ↑

  30.  See infra Subsection II.A.3 (discussing examples such as “fake Drake”). ↑

  31.  See infra Subsection III.C.2. ↑

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