Symposium

Reconstructing Citizenship

In our republican democracy, voting is a central right of citizenship. Yet millions of voters are routinely disenfranchised as a result of convictions or because their carceral status creates barriers to voting. In the past decade, academic scholarship has focused on the impact of disenfranchisement based on conviction. This work has mapped the legal and social implications of policies that deny voting rights to over five million otherwise eligible voters nationwide. Yet this work has some gaps. First, by focusing solely on conviction-based disenfranchisement, the existing scholarship has largely ignored fatal barriers to voting created (and at times perpetuated) by incarceration alone. Second, the lived experiences of those denied the right to vote are notably absent from the literature. This paper seeks to re-center the conversation about the right to vote in the lives of those impacted by the policies that restrict the franchise.

To do so, this paper uses the participatory law scholarship (“PLS”) methodology to draw heavily from the shared experiences of the co-authors, who collaborated in 2022 on an unsuccessful attempt to overturn Connecticut’s felon disenfranchisement law and open pathways to voting for incarcerated people. Specifically, this paper lays out the historical and theoretical bases that inform policies of conviction- or incarceration-based disenfranchisement. It then turns to two critical and novel claims. First, it challenges the bases and scope of such policies, noting their broad impact. Second, it grounds the story of conviction- or incarceration-based disenfranchisement in the lives of affected individuals and their communities. This second point is critical; we seek to marry the lived experience of a co-author, James Jeter, with the academic treatment of that experience.

Vital claims emerge from James’s firsthand narrative. First, disenfranchisement creates a ripple effect that moves through communities, impacting not only the incarcerated and convicted person but also all those who love and depend on them. Second, disenfranchisement that is the product of contact with criminal legal systems creates and perpetuates a gap in representation. Disenfranchised people do not exist in a vacuum. They are parents, spouses, children, and partners. Denying their right to vote denies their ability to directly represent not only themselves, but also their communities. Instead, disenfranchisement creates a secondary representation model in which those who live in affected communities depend on others to represent and defend their interests. At best, someone else’s vote aligns with the interests of those in disenfranchised communities. More often, the votes of those outside the community become acts of charity and otherizing. This is clear in descriptions of social policy. Through rhetorical tropes ranging from “welfare queens” to “law and order,” those in power promulgate policies constructed around the suggestion that there are populations requiring support, saving, and protection through secondary representation as opposed to enjoying the ability to represent themselves and their own interests.

And so, this paper joins an existing conversation about power, representation, and exclusion with a conjoined narrative—a firsthand account of disenfranchisement, community organizing, and the democratic harm wrought by current policies.

Introduction

The United States incarcerates more people than any other country in the world.1 1.See Growth in Mass Incarceration: Prison Populations Over Time, Sent’g Project, https://www.sentencingproject.org/research/ [https://perma.cc/YX7W-VXHU] (last visited July 7, 2024). These figures do not include people incarcerated pretrial. For those figures, see Pretrial Detention, Prison Pol’y Initiative, https://www.prisonpolicy.org/research/pretrial‌_detention/ [https://perma.cc/NGC6-4F2K] (last visited July 7, 2024). Combined, both sets of data reveal that Black and brown men are incarcerated at disproportionately high rates. See Fact Sheet: Felony Disenfranchisement, Sent’g Project, https://www.prisonpolicy.org/scans/‌sp/Felony-Disenfranchisement-Laws-in-the-US.pdf [https://perma.cc/L9MT-K5HD] (last updated Apr. 2014).Show More In the process, we also disenfranchise the single largest class of eligible voters, either explicitly—through laws that bar voting for those who have been convicted or are currently incarcerated—or implicitly, by creating barriers to voting even for eligible incarcerated or convicted voters.2 2.The precise number of individuals excluded from voting as a result of conviction and/or carceral status is difficult to pinpoint given movement within the population (in and out of custody) and variances in jurisdiction regarding disenfranchisement. It is agreed, however, that this population represents the single largest excluded group of otherwise eligible voters. See Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 308 (2000). For population in custody, see Wendy Sawyer & Peter Wagner, Prison Pol’y Initiative, MassIncarceration: The Whole Pie 2024(Mar. 14, 2024), https://www.pris‌onpolicy.org/reports/pie2024.html?c=pie&gad_source=1&gclid=Cj0KCQjwwMqvBhCtARI‌sAIXsZpYlQqVoshNKo3krB3_MBj-rkXE00wdS9rZXcg7iO2MXt5TVJt4DIL0aAmJ6EA‌Lw_wcB [https://perma.cc/3XZJ-Z8TR] (estimating that over 1.9 million people are incarcerated in the United States); Sentencing Project, supra note 1 (estimating that 5.85 million people have lost their right to vote as a result of felony conviction).Show More

We, the authors, are a law professor and former Director of Yale Law School’s Liman Center (Jenny) and the Director of Dwight Hall’s New Haven Civic Allyship Initiative and the Full Citizen Coalition (James). In 2022, we worked as part of a grassroots coalition to urge the Connecticut legislature to repeal laws that disenfranchised those serving sentences for felony convictions and to create greater access to the ballot for currently incarcerated individuals.3 3.In 2021, Connecticut altered its restrictions on voting rights for people with felony convictions. See Off. of Legis. Rsch., Conn. Gen. Assembly, Issue Brief: Voting Rights After Felony Conviction (Nov. 23, 2021), https://www.cga.ct.gov/2021/rpt/pdf/2021-R-0188.pdf [https://perma.cc/48ZM-3LGZ] (describing changes to voting rights based on 2021 law). James both worked as an activist and organizer on the 2021 law and had his own voting rights restored as a result of its passage. SeeKelan Lyons, The Vote, Unlocked: Why This Election Day Is Special for Those on Parole,CT Mirror (Nov. 2, 2021, 7:44 PM), https://ctmirror. org‌/2021/11/02/the-vote-unlocked-why-this-election-day-is-special-for-those-on-parole/ [https://perma.cc/XYV2-YPTF]. Buoyed by the passage of the 2021 bill, in 2022 a coalition of criminal justice and election reform advocates formed to extend voting reform to cover incarcerated people. Both authors worked on this effort.Show More The effort was part of an ongoing campaign across the nation to repeal or alter laws that deny or suppress the voting rights of over one million voters.4 4.For a summary of these efforts, see Voting Rights, Sent’g Project, https://www.sentenc‌ingproject.org/issues/voting-rights/?gad_source=1&gclid=Cj0KCQjwwMqvBhCtARIsAIX‌sZpZSLKU_yBgWxj9eNxz1FkUqpOy2EycTB08tJfML6ovK2un-a3HiuEcaAix9EALw_w‌cB [https://perma.cc/8ECZ-6JFM] (last visited July 7, 2024) (summarizing voting reform efforts around the nation focused on disenfranchisement due to conviction and/or incarceration).Show More Ultimately, our efforts in Connecticut were unsuccessful. The bill we proposed never even received a number or a committee hearing. As James noted, it died without ever seeing the light of day. Nonetheless, our work continues.

This paper offers a firsthand account of this work by examining the nexus between criminal legal systems in the United States and disenfranchisement. While we cannot cover all aspects of this expansive topic, we offer one account that unfolds in three Parts. First, we offer a brief history of voting, focusing particularly on what role voting plays in defining citizenship and facilitating democratic representation. This history provides evidence of the race- and class-based impetuses for disenfranchisement based on conviction or carceral status––a reality that continues in modern disenfranchisement and voting qualification policies. Beyond this, the history of voting offers insights into constructions of the franchise as a privilege or a right. While the authors of this paper treat voting as a right and refer to it as such, the inconsistent legal construction of voting as either a privilege or a right is critical to understanding justifications for the historical absence of universal suffrage in the United States. At the end of Part I, we consider the significance of such a conceptualization of voting.

Next, we offer a lived account of James’s disenfranchisement and both authors’ shared commitment to ensure voting rights for convicted and incarcerated people. In this second Part, the effect of the rhetoric and theory of Part I is rendered real. Denial of voting rights, barriers to voting created by carceral systems, and misinformation about voting status not only redefine the citizenship of those subject to criminal legal systems and handicap reintegration of such individuals, but also dilute the representation of the communities such individuals call their own.

The conclusion urges a reconceptualization of voting rights and, by extension, citizenship. This final part is critical not only because it reimagines our democracy as more representative through the repeal of disenfranchisement statutes and policies but also because it pushes reform conversations to think broadly about how such representation is achieved. Certainly, repealing statutes and policies that explicitly deny individuals the right to vote because of conviction or carceral status is critical, but repeal alone will not resolve the problem this paper seeks to highlight. Barriers to voting abound for incarcerated and convicted people even if they remain eligible to vote. Until such barriers are addressed, denial of citizenship and the representation it promises will linger.

Before addressing any of these Parts, however, we offer a word about our choice of methodology: the PLS methodology.5 5.See Rachel López, Participatory Law Scholarship, 123 Colum. L. Rev. 1795, 1795 (2023) (“PLS is legal scholarship written in collaboration with authors who have no formal training in the law but rather expertise in its function and dysfunction through lived experience.”).Show More The choice was intentional. At its core, PLS offers the opportunity to meld our experiences (the firsthand account) with the theory that informs this piece—and which this piece seeks to dismantle.6 6.Id. at 1807.Show More In this way, this Essay tells a story in ways that other methodologies might preclude. PLS also offered us an opportunity for self-reflection about the work we do and who we are. Our identities are integral to the narrative we seek to lift up in this work. As authors, activists, colleagues, friends, teachers, scholars, a lawyer (Jenny), and an organizer who is also a formerly incarcerated Black man (James), our perspectives are driven by the world as we know it and as we engage with it through our different identities. Our experiences are simultaneously unique to us and rendered more global as we layer them with legal and political theory in an effort to push back against the existing paradigm.

This self-reflection mirrors the topic we chose. As we sought to weave together our stories with the history and theory of voting in the United States—and more accurately, voting exclusion and the construction of citizenship—we also had to work not to obscure or elevate a single voice. We speak both for ourselves collectively and individually here, just as we advocate a model of enfranchisement that permits each person to contribute to the body politic directly, as an individual. A model of inclusive voting allows each person to speak for themselves.

Finally, in choosing to write a PLS piece, we also sought to democratize legal scholarship. Legal academic writing tells a particular story. It can distill law and its boundaries to singularities. In this, it carries a unique value, but it, like the law it examines, is exclusive in its constructions. Not everyone reads legal scholarship, as Chief Justice Roberts has helpfully noted.7 7.See A Conversation with Chief Justice Roberts, C-SPAN, at 30:40–48 (June 25, 2011), https://www.c-span.org/video/?300203-1/conversation-chief-justice-roberts [https://perma.cc‌/JYY3-4PZS] (“There is a great disconnect between the academy and the profession.”).Show More Similarly, not everyone gets to write legal scholarship, much less publish it in pages as auspicious as these. On a recent walk, James voiced his dislike of academic writing to Jenny. He described it as a National Geographic show in which a lion (the state) attacks and kills a gazelle (the subject/the marginalized person). The narrator is the legal scholar. The narrator describes the attack in painful detail: the lion’s claws are exactly this long; his fur is this color; etc., and in the end the gazelle dies. The description is not wrong, but it is also incomplete. We never hear the gazelle’s story. It does not get to say to the viewer “these claws really hurt” or “I don’t want to die.” PLS offers a space for the gazelle’s story in the gazelle’s own voice. Our Essay is not just about voting exclusion. It is not just about the value of a voice in our nation’s participatory democracy or a defined identity of citizen. It is not just about who makes laws and who is subject to law. It is about all of those things. It is the story of rights denied told from the perspective of those denied.

  1.  See Growth in Mass Incarceration: Prison Populations Over Time, Sent’g Project, https://www.sentencingproject.org/research/ [https://perma.cc/YX7W-VXHU] (last visited July 7, 2024). These figures do not include people incarcerated pretrial. For those figures, see Pretrial Detention, Prison Pol’y Initiative, https://www.prisonpolicy.org/research/pretrial‌_detention/ [https://perma.cc/NGC6-4F2K] (last visited July 7, 2024). Combined, both sets of data reveal that Black and brown men are incarcerated at disproportionately high rates. See Fact Sheet: Felony Disenfranchisement, Sent’g Project, https://www.prisonpolicy.org/scans/‌sp/Felony-Disenfranchisement-Laws-in-the-US.pdf [https://perma.cc/L9MT-K5HD] (last updated Apr. 2014). ↑
  2.  The precise number of individuals excluded from voting as a result of conviction and/or carceral status is difficult to pinpoint given movement within the population (in and out of custody) and variances in jurisdiction regarding disenfranchisement. It is agreed, however, that this population represents the single largest excluded group of otherwise eligible voters. See Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 308 (2000). For population in custody, see Wendy Sawyer & Peter Wagner, Prison Pol’y Initiative, Mass Incarceration: The Whole Pie 2024 (Mar. 14, 2024), https://www.pris‌onpolicy.org/reports/pie2024.html?c=pie&gad_source=1&gclid=Cj0KCQjwwMqvBhCtARI‌sAIXsZpYlQqVoshNKo3krB3_MBj-rkXE00wdS9rZXcg7iO2MXt5TVJt4DIL0aAmJ6EA‌Lw_wcB [https://perma.cc/3XZJ-Z8TR] (estimating that over 1.9 million people are incarcerated in the United States); Sentencing Project, supra note 1 (estimating that 5.85 million people have lost their right to vote as a result of felony conviction). ↑
  3.  In 2021, Connecticut altered its restrictions on voting rights for people with felony convictions. See Off. of Legis. Rsch., Conn. Gen. Assembly, Issue Brief: Voting Rights After Felony Conviction (Nov. 23, 2021), https://www.cga.ct.gov/2021/rpt/pdf/2021-R-0188.pdf [https://perma.cc/48ZM-3LGZ] (describing changes to voting rights based on 2021 law). James both worked as an activist and organizer on the 2021 law and had his own voting rights restored as a result of its passage. See Kelan Lyons, The Vote, Unlocked: Why This Election Day Is Special for Those on Parole, CT Mirror (Nov. 2, 2021, 7:44 PM), https://ctmirror. org‌/2021/11/02/the-vote-unlocked-why-this-election-day-is-special-for-those-on-parole/ [https://perma.cc/XYV2-YPTF]. Buoyed by the passage of the 2021 bill, in 2022 a coalition of criminal justice and election reform advocates formed to extend voting reform to cover incarcerated people. Both authors worked on this effort. ↑
  4.  For a summary of these efforts, see Voting Rights, Sent’g Project, https://www.sentenc‌ingproject.org/issues/voting-rights/?gad_source=1&gclid=Cj0KCQjwwMqvBhCtARIsAIX‌sZpZSLKU_yBgWxj9eNxz1FkUqpOy2EycTB08tJfML6ovK2un-a3HiuEcaAix9EALw_w‌cB [https://perma.cc/8ECZ-6JFM] (last visited July 7, 2024) (summarizing voting reform efforts around the nation focused on disenfranchisement due to conviction and/or incarceration). ↑
  5.  See Rachel López, Participatory Law Scholarship, 123 Colum. L. Rev. 1795, 1795 (2023) (“PLS is legal scholarship written in collaboration with authors who have no formal training in the law but rather expertise in its function and dysfunction through lived experience.”). ↑
  6.  Id. at 1807. ↑

  7.  See A Conversation with Chief Justice Roberts, C-SPAN, at 30:40–48 (June 25, 2011), https://www.c-span.org/video/?300203-1/conversation-chief-justice-roberts [https://perma.cc‌/JYY3-4PZS] (“There is a great disconnect between the academy and the profession.”). ↑

Youth Participatory Law Scholarship

This Essay joins a formally trained legal scholar-practitioner with a grassroots youth activist and advocate to introduce the emerging subgenre of Youth Participatory Law Scholarship (“YPLS”). YPLS expands on the movement for Participatory Law Scholarship by including youth co-authors whom U.S. legal systems have excluded from democracy and whom legal academia have silenced in scholarship. YPLS works to repair this harm against young people by elevating youth legal knowledge and contributions to law through co-authoring legal scholarship.

This piece makes two contributions to the movement of Participatory Law Scholarship (“PLS”). In Part I, McRae shares a narrative account of the unique ways that legal professionals have silenced her voice. In Part II, Medina Camiscoli outlines strategies that the co-authors have co-created to build a shared understanding of racial capitalism and adultism in legal institutions and reparative practices to share ownership of the writing process. The piece closes with a series of questions on which future co-authors of YPLS should reflect as they work to build scholarly practices that include and elevate the resistance and freedom dreams of mobilized and marginalized youth.

Introduction

From the inception of the settler-colonial project1 1.K-Sue Park, The History Wars and Property Law: Conquest and Slavery as Foundational to the Field, 131 Yale L.J. 1062, 1067 (2022) (“The predominant understanding of U.S. law and legal institutions, most simply, is built on a narrative from which the histories of colonization and enslavement—and the ways they shaped the evolution of racial dynamics in this country—have been erased over time.”).Show More to present threats of authoritarianism,2 2.Kimberlé W. Crenshaw, This Is Not a Drill: The War Against Antiracist Teaching in America, 68 UCLA L. Rev. 1702, 1725 (2022) (“[T]he relationship between authoritarian tyranny and white supremacy make it abundantly clear that there is no daylight between attacks on democracy and attacks on antiracism.”).Show More youth3 3.“Young” refers broadly to people between the ages of 12–24 years old—the age band when youth have increased capacity for advocacy. See Daniel J. Siegel, Brainstorm: The Power and Purpose of the Teenage Brain 6–9 (2013) (explaining how adolescence spans across the ages of 12–24 years old, during which the frontal cortex develops and people present a higher proclivity for novelty, risk, social cohesion, and intense emotions). The Supreme Court has assumed this interpretation of prefrontal cortex development for youth under the age of 18. See Roper v. Simmons, 543 U.S. 551, 569–71, 578 (2005) (banning the death penalty for minors); Graham v. Florida, 560 U.S. 48, 68, 82 (2010) (banning sentences of mandatory life imprisonment without parole for minors convicted of crimes other than homicide); Miller v. Alabama, 567 U.S. 460, 471–72, 489 (2012) (banning sentences of mandatory life imprisonment without parole for minors convicted of homicide).Show More leaders have interpreted, resisted, and enhanced democracy4 4.Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 Yale L.J. 2740, 2745–46 n.12 (2014) (explaining how social movements have created “both constituencies of accountability and alternative and authoritative interpretative communities”).Show More under U.S. law.5 5.See generally Sarah Medina Camiscoli, Teenage Rebels and the Demand for Due Process, Geo. J.L. & Mod. Critical Race Persps. (forthcoming 2024) (on file with authors) [hereinafter Medina Camiscoli, Teenage Rebels] (recounting the demosprudence of young women, enslaved youth, kidnapped indigenous youth, immigrant youth, and gender expansive youth). See also Sarah Medina Camiscoli, Youth Movement Law: The Case for Interpreting the Constitution with Mobilized Youth, 26 U. Pa. J. Const. L. (forthcoming 2024) (manuscript at 9, 52–53) (on file with authors) [hereinafter Medina Camiscoli, Youth Movement Law] (discussing the strategies of transgender and gender expansive youth leaders to pursue abolition, a Constitution of positive rights, and radical forms of direct democracy).Show More However, formally trained law practitioners and legal scholars have largely failed to include youth contributions as a source of legitimate knowledge.6 6.The Participatory Law Scholarship movement has illuminated the harms of excluding marginalized peoples’ voices in legal knowledge productions. See Rachel López & Terrell Carter, If Lived Experience Could Speak: A Legal Method for Repairing Epistemic Violence in Law & the Legal Academy, 109 Minn. L. Rev. (forthcoming 2024) (manuscript at 4), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4741795 [https://perma.cc/MRB5-YT‌JU] (“[A]cademics often evoke the stories of [marginalized] communities without asking them what they think is best for them or making them the authors of their own stories. Then, their extracted stories are guarded behind paywalls inaccessible to them and in some instances, as will be detailed below, used against them as a matter of law.” (footnote omitted)). See generally Rachel López, Participatory Law Scholarship, 123 Colum. L. Rev. 1795 (2023) (describing the theory and practice of Participatory Law Scholarship).Show More In fact, scholars rarely acknowledge the age of the people who catalyzed, created, and enhanced U.S. laws and legal systems. For example, originalist legal scholars have not yet discussed the oddity that multiple “key American Revolution figures” were only teenagers when they took up arms against the British, and yet most teenagers today cannot even vote in their school board elections.7 7.Todd Andrlik, How Old Were the Leaders of the American Revolution on July 4, 1776?, Slate (Aug. 20, 2013, 5:30 AM), https://slate.com/news-and-politics/2013/08/how-old-were-the-founding-fathers-the-leaders-of-the-american-revolution-were-younger-than-we-imagine‌.html [https://perma.cc/L38F-AR‌F9]; see also John S.C. Abbot, Lives of the Presidents of the United States of America, From Washington to the Present Time210 (Portland, H. Hallett & Co. 1879) (“[T]he first time [Andrew Jackson] took part in active service [was at fourteen years old] . . . . Andrew and his brother were taken prisoners. A British officer ordered him to brush his mud-spattered boots, I am a prisoner of war, not your servant,’ was the reply of the dauntless boy.”); c.f. Joseph Fishkin, Weightless Votes, 121 Yale L.J. 1888, 1904 (2012) (“‘[T]he framers were aware that this apportionment and representation base would include categories of persons who were ineligible to vote—women, children, bound servants, convicts, the insane, and, at a later time, aliens.’” (quoting Garza v. County of Los Angeles, 918 F.2d 763, 774 (9th Cir. 1990)); Julian Roberts-Grmela, A Seat Without A Voice: Student School Board Members Have No Voting Power, Chalkbeat (Jan. 24, 2023, 3:14 PM), https://www.ch‌alkbeat.org/newyork/2023/1/24/23569203/nyc-school-board-panel-for-educational-policy-st‌udent-power/ [https://perma.cc/M3AX-YHYA] (featuring students who deal with the “hard lesson” that students cannot vote on the school board even if they win a seat, which further elevates the disconnect between policies and their realities).Show More Similarly, abolitionist legal scholars do not often discuss how enslaved Gabriel Prosser, at 24 years old, led a historic rebellion of enslaved peoples,8 8.See Douglas R. Egerton, Gabriel’s Rebellion: The Virginia Slave Conspiracies of 1800 and 1802, at 20, 45, 48, 165, 168 (1993); Darrell A.H. Miller, Estoppel by Nonviolence, 85 Law & Contemp. Probs. 69, 73 (2022) (“In 1800, a blacksmith named Gabriel, [enslaved] by a planter named Prosser, planned a multiracial republican revolution against slavery and merchant oppression in Henrico County, Virginia.”); Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 63–64 (2019) (“The abolitionist Constitution was forged, as well, by ordinary black folks who abandoned plantations, served in the Union Army, and demanded recognition of their equal citizenship.”).Show More one of several rebellions which catalyzed the abolitionist movement and signified the struggle for the recognition of civil rights only later realized through the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments.9 9.See Roberts, supra note 8, at 63–64.Show More Likewise, scholars have not seriously considered the significance of the fact that Sitting Bull was only fourteen years old when he participated in his first war party, beginning his effort to demand land rights and legal sovereignty for indigenous communities.10 10.Robert M. Utley, The Last Sovereigns: Sitting Bull and the Resistance of the Free Lakotas 3 (2020); B.J. Jones, Welcoming Tribal Courts into the Judicial Fraternity: Emerging Issues in Tribal-State and Tribal-Federal Court Relations, 24 Wm. Mitchell L. Rev. 457, 514 n.255 (1998) (recognizing that “[a]lthough Sitting Bull was not a jurist in the English common law sense,” his people called on him to mediate governance disputes and resist injustice regarding indigenous sovereignty).Show More Further, few have credited the Student Nonviolent Coordinating Committee for the birth of the Voting Rights Act in 1965 or migrant youth for the passage of the Agricultural Labor Relations Act (“ALRA”).11 11.Guinier & Torres, supra note 4, at 2799 (“Without the MFDP, without SNCC, without the march from Selma to Montgomery, there would have been no Voting Rights Act in 1965 . . . . Similarly, without the UFW—and its capacity to organize allies across the country . . . there would have been no Agricultural Labor Relations Act (ALRA) in California.”).Show More

Over the course of the last twenty years, more youth have continued this tradition of resistance and legal interpretation than ever before.12 12.Erica Chenoweth, Zoe Marks, Matthew Cebul & Miranda Rivers, Youth and LGBTQ+ Participation in Nonviolent Action, USAID (Jan. 2023), https://pdf.usaid.gov/pdf_docs/PA00‌ZSDF.pdf [https://perma.cc/E42J-SHA8] (finding more nonviolent protest activities than ever before, which also include a greater number of LGBTQ+ and youth participants).Show More These mobilized youth, like those who came before them, have seeded a constitutional renewal in a moment of democratic decay;13 13.See Medina Camiscoli, Youth Movement Law, supra note 5 (manuscript at 8) (arguing that “mobilized youth play an essential role in transforming the present ‘political crisis’ into an opportunity to reimagine American democracy” (citations omitted)); Jack M. Balkin, The Cycles of Constitutional Time 44 (2020) (arguing that the United States is experiencing constitutional rot and defining constitutional decay or rot as “[w]hen a republic . . . loses its connection to the joint pursuit of the public good”).Show More they demand commonsense gun laws,14 14.Mass shootings present an enormous public health crisis, as they constitute the number one cause of death of children in the United States. James G. Hodge, Jr., Erica N. White, Rebecca Freed & Nora Wells, Supreme Court Impacts in Public Health Law: 2021–2022, 50 J.L. Med. & Ethics 608, 610 (2022) (“Extending Second Amendment rights to include general self-defense outside the home threatens a multitude of public health regulations aimed at reducing firearm-related morbidity and mortality as Congress ponders federal legislative limits after multiple acts of gun violence in Buffalo, Uvalde (TX), and other locales in 2022.”); see also German Lopez, It’s Official: March for Our Lives Was One of the Biggest Youth Protests Since the Vietnam War, Vox (Mar. 26, 2018, 10:10 AM), https://www.vox.com/polic‌y-and-politics/2018/3/26/17160646/march-for-our-lives-crowd-size-count [https://perma.cc/‌Y8BN-MKHQ] (detailing how March for Our Lives included over 1.2 million people nationwide and was “one of the biggest rallies for gun control ever in the nation’s capital”); Fordham L. Ctr. on Race, L. & Just., Youth Power Not Guns, Vimeo (Oct. 25, 2023), https://vi‌meo.com/884009211 [https://perma.cc/XN8Q-ADS6].Show More abolition,15 15.The United States still incarcerates more young people than any other country in the world. See Alec Karakatsanis, The Punishment Bureaucracy: How to Think About “Criminal Justice Reform,” 128 Yale L.J.F. 848, 849–50 (2019) (using the term “human caging” to de-normalize the mass incarceration crisis in the United States). See generally Peer Def. Project, Abolish New York City’s Youth Punishment Systems (2023) (Anna Milliken & Kailyn Gaines eds.), https://acrobat.adobe.com/link/review?uri=urn:aaid:scds:US:df106b9c-53a8-34‌f4-97bc‌-206923b41449 [https://perma.cc/K2PX-PYJ4] (a youth-authored guide to the legal systems and history of punishing and caging of young people in New York City). See also Matthew Clair & Amanda Woog, Courts and the Abolition Movement, 110 Calif. L. Rev. 1, 7 (2022) (describing how the movement for abolition has impacted the court system through “(1) power shifting, (2) defunding and reinvesting, and (3) transformation”).Show More climate justice,16 16.“Six in ten each of Millennials and Gen Z see climate change as a critical threat to U.S. interests.” Emily Sullivan, Millennials and Gen Z Sound the Alarm on Climate Change, Chi. Council on Glob. Affs. (Jan. 18, 2023), https://globalaffairs.org/commentary-and-analysis/bl‌ogs/millennials-and-gen-z-sound-alarm-climate-change [https://perma.cc/6ZHV-AK8G]; see Camila Bustos, Movement Lawyering in the Time of the Climate Crisis, 39 Pace Env’t L. Rev. 1, 17 (2022) (describing Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020), as “a groundbreaking case where a group of youth plaintiffs filed a constitutional climate lawsuit to challenge the federal government’s actions causing climate change, alleging violations to their right to life, liberty, and property”).Show More racial justice,17 17.Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/2‌020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/7F6Z-ZPHK]; see Rashawn Ray, Black Lives Matter at 10 Years: 8 Ways the Movement Has Been Highly Effective, Brookings (Oct. 12, 2022), https://www.brookings.edu/articles/black-lives-matter-at-10-years-what-impact-has-it-had-on-policing/ [https://perma.cc/5N9K-3UW6] (explaining how Black Lives Matter transformed laws and policies around the United States).Show More economic justice,18 18.Young workers and mobilized students transformed the landscape of the labor movement. See Leanna First-Arai, Young Workers Are Bridging the Climate and Labor Movements, Teen Vogue (July 25, 2022), https://www.teenvogue.com/story/young-workers-labor-movement [https://perma.cc/4498-P7QT]; see also Zeynep Biyikli, Students Leverage Their University Affiliation to Gain Ground in the Fight Against Starbucks’s Union-Busting Efforts, 49 Hum. Rts. 36, 36 (2023) (“[U]niversity students across the country have reconsidered their school’s financial relationships with one of the most prolific union-busters in modern history.”).Show More migrant justice,19 19.Sylvia R. Lazos Vargas, The Immigrant Rights Marches (Las Marchas): Did the “Gigante” (Giant) Wake Up or Does It Still Sleep Tonight?, 7 Nev. L.J. 780, 788, 790 (2007) (noting the 2006 Los Angeles protest of La Gran Marcha as the largest demonstration for immigrant rights in U.S. history, where “[s]tudents staged ‘walkouts’ for three consecutive days following ‘la Gran Marcha.’”).Show More gender justice,20 20.See Medina Camiscoli, Youth Movement Law, supra note 5 (manuscript at 59–77) (outlining over eighty youth organizations resisting laws that target gender expansive youth).Show More education justice,21 21.See generally Medina Camiscoli, Teenage Rebels, supra note 5 (elevating the demosprudence of youth movement leaders in Students Engaged in Advancing Texas (“SEAT”) coalition fighting book bans in and outside of legal institutions).Show More health justice,22 22.Months before the Supreme Court struck down constitutional protections for abortion, youth movement leaders began building mutual aid networks to protect access. See Christine Mui, “Thanks for Hating, It Helps the Movement”: How a 19 Year Old Used Her Internet Trolls to Raise $2 Million for Abortion Access in Less Than a Week, Fortune (Aug. 6, 2022, 6:00 AM), https://fortune.com/2022/08/06/teenager-fundraiser-abortion-access-gen-z-2-milli‌on [https://perma.cc/PCU5-ZQDG]; Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284–85 (2022) (abolishing the constitutional right to abortion and allowing states to make independent decisions about regulating abortion access).Show More and housing justice.23 23.Young tenants have organized across communities and college campuses to demand a right to housing in the midst of a housing crisis. See, Youth All. For Hous., About, https://www.y4h.org/about [https://perma.cc/A2UJ-CK9C] (last visited Oct. 13, 2024) (“[E]nvision[ing] a world where housing is de-commodified, houselessness does not exist, and everyone is guaranteed a safe, quality, and permanently affordable home.”); Jonathan Franklin, Howard University Students Reach an Agreement with Officials After a Month of Protest, NPR (Nov. 15, 2021, 8:12 PM), https://www.npr.org/2021/11/15/1055929172/howar‌d-university-students-end-protest-housing-agreement [https://perma.cc/5E5U-US42] (describing how students protested uninhabitable housing conditions on Howard University’s campus); John Infranca, The New State Zoning: Land Use Preemption Amid A Housing Crisis, 60 B.C. L. Rev. 823, 829 (2019) (“The breadth and depth of the housing crisis in communities throughout the country has made housing affordability a salient issue for a broader swath of the population.”).Show More

Instead of building camaraderie with these young visionaries,24 24.See López, supra note 6, at 1798 (“[Participatory Law Scholarship] also involves another profoundly human element, one that is fundamental to the ethos and epistemology of Participatory Law Scholarship: camaraderie.”).Show More formally trained legal professionals have participated in epistemic violence by erasing and excluding young people’s ways of knowing the law from legal scholarship. Fortunately, the Participatory Law Scholarship (“PLS”) movement has been developing a framework to “fumbl[e] towards repair”25 25.See generally Mariame Kaba & Shira Hassan, Fumbling Towards Repair: A Workbook for Community Accountability Facilitators (2019) (providing tips and educational materials to community accountability facilitators). See also I. India Thusi, Book Review, Feminist Scripts for Punishment, 134 Harv. L. Rev. 2449, 2480 (2021) (discussing Mariame Kaba and Shira Hassan’s workbook Fumbling Towards Repair, “which provides facilitation guidance on responding to harm and encouraging people who inflict harm to take responsibility”).Show More of epistemic violence in the legal academy. Specifically, PLS practitioners build partnerships between people “academically trained [as] legal scholars” and people “with lived experience confronting the daily realities of injustice and organizing the disenfranchised.”26 26.See López, supra note 6, at 1800; see also id. (“PLS “shifts power to people who are not lawyers, establishing them as experts in their own legal realities . . . push[ing] the boundaries of how society and the legal academy understand their interventions.”).Show More By joining these groups of people as co-authors, PLS practitioners reallocate the “time, training, and resources to engage in deep research” away from individual legal scholars and toward partnerships and projects that “develop further support for the episteme of organic jurists, by bolstering it with other empirical evidence, grounding it in legal doctrine, and connecting it with other theories and literature.”27 27.Id. at 1801.Show More

In this Essay, we stretch the tradition of PLS to acknowledge and repair what PLS scholars call the “academic silencing”28 28.See The HLS Conference Organizers, Critical Race Theory: Inside and Beyond the Ivory Tower, 69 UCLA L. Rev. Disc. (Law Meets World) 118, 126–27 (2022) (arguing that the recent surge in “anti-CRT” legislation targeted at schools is an example of epistemicide and recognizing that law school spaces fail to critique the “dominant epistemics of law”); see also López & Carter, supra note 6 (manuscript at 36) (defining “academic silencing” as “using the tools at academics’ disposal to suppress or alter [marginalized] knowledge” and observing that “[l]egal academics regularly speak for the marginalized, articulating how the law could better serve them, but rarely ceding space or resources so that the subaltern can speak for themselves”).Show More and legal smothering29 29.Legal scholars have argued that legal academia emboldens racial capitalism when historically marginalized people or ideas are included in university spaces to extract value from those marginalized people or ideas for the institution. See Nancy Leong, Racial Capitalism, 126 Harv. L. Rev. 2151, 2171–72 (2013) (arguing that diversity has historically been sanctioned when privileged, White people in the academy decide they can derive social or economic value from nonwhiteness).Show More of young people in the legal academy and other legal institutions.30 30.See López & Carter, supra note 6 (manuscript at 23) (“We employ the term legal smothering to describe when the subaltern silences themselves either because the law prevents them from speaking for themselves or only recognizes testimony that aligns with the dominant discourse in law.”). See generally Guinier & Torres, supra note 4 (elevating the extra-judicial interpretations of law of social movements as a legitimate interpretation of law). See also Medina Camiscoli, Youth Movement Law, supra note 5 (manuscript at 7) (explaining how gender expansive youth “and their families have fled hostile states to escape skyrocketing rates of harassment, hate crimes, criminalization, suicide, and other efforts to eradicate trans people from public life” such as bans on books, community organizations, and families where young people can exercise their right to bodily autonomy); Benjamin C. Park, Rishub K. Das & Brian C. Drolet, Increasing Criminalization of Gender-Affirming Care for Transgender Youths—A Politically Motivated Crisis, 175 JAMA Pediatrics1205, 1205(2021) (discussing how laws that criminalize gender-affirming care have serious and negative health impacts on transgender and gender expansive youth).Show More Specifically, we introduce Youth Participatory Law Scholarship (“YPLS”) as a method to mitigate the silencing of youth knowledge by including young people as authors on scholarly projects about young people and building practices for humane governance of those projects.31 31.Boaventura de Sousa Santos, Epistemologies of the South: Justice Against Epistemicide 93 (2014) (defining “humane governance” of knowledge as one that “‘facilitates communication across . . . nationalist, ethnic, class, generational, cognitive, and gender divides,’ but does so with ‘respect and celebration of difference and an attitude of extreme skepticism toward exclusivist alarms that deny space for expression and exploration of others’” (quoting Richard Falk, On Humane Governance: Toward a New Global Politics 242 (1995))). The authors acknowledge the recent allegations of sexual misconduct by young, femme academics against Boaventura de Sousa Santos and assert that sexual misconduct in the academy perpetuates its own kind of epistemic injustice. See Lieselotte Viaene, Catarina Laranjeiro & Miye Nadya Tom, The Walls Spoke When No One Else Would, in Sexual Misconduct in Academia: Informing an Ethics of Care in the University 208, 208–23 (Erin Pritchard & Delyth Edwards eds., 2003) (detailing the authors’ experiences of sexual harassment at an unnamed institution where they were formerly Ph.D. students or postdoctoral researchers and its impact on knowledge production); see also Mariama Correia, Brazilian State Deputy Says She Was Sexually Assaulted by Boaventura de Sousa Santos, Publica (Apr. 14, 2023, 5:55 PM), https://apublica.org/2023/04/brazilian-state-deputy-says-she-was-sexual‌ly-assaulted-by-boaventura-de-sousa-santos/ [https://perma.cc/GY8W-ENST] (providing further information on the sexual assault allegations against Sousa Santos). Throughout the remainder of the paper, the authors make efforts to cite interpretations of epistemic violence by women legal academics in solidarity with the movement to investigate the alleged sexual misconduct and elevate the jurisprudence of marginalized women in legal academia.Show More YPLS facilitates the principles of humane governance of legal knowledge with young people through “respect and celebration of difference and an attitude of extreme skepticism toward exclusivist alarms that deny space for expression and exploration of others.”32 32.López, supra note 6, at 1827–29 (describing that the two principles that undergird equitable partnerships in the co-author model are critical self-reflection and combating academic institutionalization).Show More

Recognizing the power and bold vision of social movements as sites of legal interpretation,33 33.See Guinier & Torres, supra note 4, at 2756–57 (explaining how activist movements in American history “forge[d] new understandings of the status quo . . . [by] creating an alternative narrative of constitutional meaning”); see also Kempis Songster, Rachel López & Gerald Torres, Participatory Law Scholarship as Demosprudence, 110 Va. L. Rev. Online 298 (2024) (discussing how PLS provides a powerful methodology to democratize the law and legal scholarship and improve democratic institutions).Show More YPLS focuses on elevating youth demosprudence—that is, youth interpreting and transforming the law outside of gate-kept legal institutions.34 34.See Guinier & Torres, supra note 4, at 2750; see also López & Carter, supra note 6 (manuscript at 6) (arguing that “PLS should be seen as reparation for ongoing epistemic violence at the hands of academics and academic institutions”).Show More In doing so, co-authors of YPLS work to enhance democracy and bring youth freedom dreams into being.35 35.See Amanda Alexander, Nurturing Freedom Dreams: An Approach to Movement Lawyering in the Black Lives Matter Era, 5 How. Hum. & Civ. Rts. L. Rev. 101, 10 2, 123 (2021) (discussing how lawyers are not trained to encourage freedom dreams).Show More Further, YPLS relies on a theory of cultural democracy—a democracy where all people co-author “all the shared aspects of their lives . . . [and] can influence one another and potentially change one another’s minds” about those shared aspects.36 36.Jonathan Gingerich, Democratic Vibes, 32 Wm. & Mary Bill Rts. J. 1135, 1138 (2024); id. at 1152 (“As the Black Panther Party put it, ‘All Power to the People!’” (citing 7eventytimes7, All Power to the People!—The Black Panther Party and Beyond, YouTube (June 8, 2016), https://youtu.be/pKvE6_s0jy0 [https://perma.cc/2UNU-2G8H])).Show More

Despite their resistance, youth face unprecedented risks to their access and knowledge of law. Each day, lawmakers ban more books and criminalize more spaces where youth could learn about the democracy-enhancing power of social movements,37 37.See Guinier & Torres, supra note 4, at 2803–04 (discussing how the resistance and legal interpretation of grassroots movements have enhanced democracy through the passage of new laws, shifts in jurisprudence, and changes in public opinion).Show More develop their own interpretation of law, and imagine utopian worlds.38 38.UCLA Sch. of L. Critical Race Stud., CRT Forward, https://crtforward.law.ucla.‌edu/ [https://perma.cc/7KEK-DG8Q] (last visited Aug. 21, 2024); Jonathan Friedman & Nadine Farid Johnson, Banned in the USA: The Growing Movement to Censor Books in Schools, PEN America (Sept. 19, 2022), https://pen.org/report/banned-usa-growing-movement-to-cens‌or-books-in-schools/ [https://perma.cc/G8CC-EL8P].Show More To confront this reality, Youth Participatory Law Scholarship has emerged with two intentions: (1) produce scholarship that includes the youth voice as an authority on their own lived experience with law;39 39.See López & Carter, supra note 6 (manuscript at 48–50).Show More (2) co-create reflective practices that unlock opportunities to share in knowledge production and release gate-kept legal resources so that young people can wield those resources for power.40 40.See López, supra note 6, at 1827–29 (identifying strategies such as fostering critical self-reflection and combatting academic institutionalization as critical to the process of developing PLS partnerships and projects).Show More

In this Essay, we—one formally trained legal scholar-practitioner and one youth organizer trained as a legal worker in grassroots organizing spaces—focus on the practice of building shared social analysis and consent-based decision-making to disrupt the tradition of youth silencing and prefigure utopian arrangements in the academy.41 41.Specifically, the two situate their practice within Sameer Ashar’s theory of prefigurative pedagogy, arguing that Youth Participatory Scholarship offers a potent practice of prefigurative pedagogy where marginalized and mobilized youth—those with limited to no levers to participate in democracy or resist authoritarianism—disrupt the gatekeeping of legal knowledge that justifies their exclusion. See generally Sameer M. Ashar, Pedagogy of Prefiguration, 132 Yale L.J.F. 869 (2023) (arguing that lawyers should experiment with social analysis, radical imagination, and dialogical relationship with collaborators to prefigure utopian social arrangements with social movement organizations).Show More Within this context, we use the term “prefigure” as it has been introduced in the context of prefigurative pedagogy—“the idea that we have to build . . . our leftist institutions in the model of the world we are seeking to create.”42 42.Id. at 871 n.8 (citing Prefiguring Border Justice: Interview with Harsha Walia, 6 Critical Ethnic Stud. (Nov. 27, 2019), https://manifold.umn.edu/read/prefiguring-border-justice-inter‌view-with-harsha-walia [https://perma.cc/6MCM-NDXT]).Show More While an individual youth co-author publishing in an esteemed law review is not in and of itself revolutionary, it provides opportunities for a “fulfilled moment” of a “better way of being” where young people are credited for their contributions to law and no longer “humiliated, enslaved, forsaken, scorned, estranged, annihilated, and deprived of identity” in a decaying democracy.43 43.See also Ruth Levitas, Utopia as Method 5–6 (2013); Balkin, supra note 13, at 44 (arguing that the United States is experiencing constitutional rot and defining constitutional decay or rot as “[w]hen a republic . . . loses its connection to the joint pursuit of the public good”); Jack M. Balkin, A Symposium on Jack M. Balkin’s The Cycles of Constitutional Time: How to Do Constitutional Theory While Your House Burns Down, 101 B.U. L. Rev. 1723, 1756 (2021) (“Constitutional rot refers to the processes by which governments become increasingly less democratic and less republican. Rot is endemic to republics. A long tradition of political thought holds that republics are delicate institutions that are easily corrupted and hard to keep going. The people lose civic virtue, the institutions break down, and the norms of trust that are necessary for multiparty competition decay.”); id. at 1759 (“Issues of race, culture, religion, and identity have only made the problems worse. Over the course of four decades, the Republican Party increasingly has become a White person’s party, and politicians have used issues of race, culture, religion, and identity to motivate the Party’s base of White voters.”).Show More These fulfilled moments are prefigurative in that they build arrangements in the legal academy for a utopian democracy—one where youth co-author all shared aspects of life and have opportunities to share critiques that enhance democracy at large.

The Essay proceeds in the following way: In Part I, Sa’Real McRae—a 19-year-old Black activist, organizer, and legal worker fighting the erasure of youth knowledge of law under legislative bans—shares her story as a descriptive example of how young people, particularly mobilized young people of color, experience erasure and exclusion in knowledge production when formally trained legal professionals and other privileged advocates silence and smother youth knowledge to bolster their own progressive causes.

In Part II, we pass the pen to Sarah Medina Camiscoli to outline two reparative strategies for YPLS that have emerged through facilitating collaborative projects with mobilized youth and formally trained legal professionals—building a shared social analysis of adultism44 44.John Wall, Adultism and Voting Age Discrimination, 36 Harv. Hum. Rts. J. 327, 328 (2023) (“A first step toward a systemic understanding of adultism can be found in . . . [c]hildren’s mistreatment—for example, their being subject to physical punishment, being banned from public spaces, and lack of real voices in schools—is underwritten by the cultural acceptance of an in-built adult-child hierarchy. In . . . the political sphere, ‘adultism refers to all the behaviors and attitudes that flow from the assumption that adults are better than young people, and are entitled to act upon young people in many ways without their agreement.’ This concept of a deep-seated disrespect toward children locates the problem in broad systems of historical preconception.” (quoting Barry Checkoway, Adults as Allies, Partnerships/Community, 1996, at 14)); see also Sarah Medina Camiscoli, Paige Duggins-Clay, Maryam Salmanova & Ibtihal Chamakh, Youth Dignity Takings: How Book and Trans Bans Take Youth Property and Dignity, 1 Loy. Interdisc. J. Pub. Int. L. 1, 75 (2024) (“Adultism legitimizes the belief that Young People are inferior to adults. Adultism further justifies disregarding the contributions of Young People and excluding Youth as decision makers in their communities. Adultism vindicates attorneys who relegate Youth to periphery positions in the legal workplace as interns or community volunteers, where they will often bear the brunt of busy work or outreach for little-to-no compensation.” (footnotes omitted)).Show More within racial capitalism and wielding consent-based decision-making to co-own the writing process.45 45.Guinier & Torres, supra note 4, at 2746 n.12 (“Democracy-enhancing social change reminds us that genuine communities of consent are what justify democracy.” (emphasis added)).Show More We use the term “adultism” to refer to the structures, belief systems, and biases that position young people as inferior to their older counterparts and exclude young people as decision makers in their homes, schools, workplaces, organizations, communities, and legal systems.46 46.See Medina Camiscoli et al., supra note 44, at 74–75.Show More We use the term “racial capitalism” to refer to the way that formally trained legal professionals only include young people of color when they decide that they can “deriv[e] value from the racial identity of another person.”47 47.Leong, supra note 29, at 2153 n.7.Show More

With an eye towards McRae’s concern with erasure and extraction, Medina Camiscoli first explains how building shared social analysis in YPLS requires collaborative study and celebration of accounts of youth resistance as well as shared participation in professional development so that co-authors can share language to reflect on the inevitable manifestations of adultism and white supremacy within the context of a PLS project. Further, Medina Camiscoli explains how consent-based decision-making processes set YPLS apart from similar emerging subgenres such as Youth Movement Law48 48.See generally Medina Camiscoli, Youth Movement Law, supra note 5 (arguing for the elevation and inclusion of marginalized youths’ experiences in constitutional interpretation).Show More and Critical Youth Theory.49 49.See generally Sarah Medina Camiscoli & Kia Turner, Critical Youth Theory: Toward the Abolition of Infantilization and Adultification Under Law, https://www.criticalyouththeory.‌org/ [https://perma.cc/WM7R-WPP9] (last visited Aug. 22, 2024); Kia Turner, Darion Wallace, Danielle Miles-Langaigne & Essence Deras, Toward Black Abolition Theory Within Radical Abolition Studies: Upending Practices, Structures, and Epistemes of Domination, 18 J. Multicultural Educ. 275 (2024) (critiquing the epistemic domination of marginalized communities across generations and calling for new interdisciplinary practices).Show More The Essay closes with a series of questions on which future co-authors of YPLS should reflect as they work to prefigure multiracial, intergenerational, and radically democratic arrangements in the legal academy.

  1.  K-Sue Park, The History Wars and Property Law: Conquest and Slavery as Foundational to the Field, 131 Yale L.J. 1062, 1067 (2022) (“The predominant understanding of U.S. law and legal institutions, most simply, is built on a narrative from which the histories of colonization and enslavement—and the ways they shaped the evolution of racial dynamics in this country—have been erased over time.”). ↑
  2.  Kimberlé W. Crenshaw, This Is Not a Drill: The War Against Antiracist Teaching in America, 68 UCLA L. Rev.
    1702

    , 1725 (2022) (“[T]he relationship between authoritarian tyranny and white supremacy make it abundantly clear that there is no daylight between attacks on democracy and attacks on antiracism.”). ↑

  3.  “Young” refers broadly to people between the ages of 12–24 years old—the age band when youth have increased capacity for advocacy. See Daniel J. Siegel, Brainstorm: The Power and Purpose of the Teenage Brain
    6–9

    (2013) (explaining how adolescence spans across the ages of 12–24 years old, during which the frontal cortex develops and people present a higher proclivity for novelty, risk, social cohesion, and intense emotions). The Supreme Court has assumed this interpretation of prefrontal cortex development for youth under the age of 18. See Roper v. Simmons, 543 U.S. 551, 569–71, 578 (2005) (banning the death penalty for minors); Graham v. Florida, 560 U.S. 48, 68, 82 (2010) (banning sentences of mandatory life imprisonment without parole for minors convicted of crimes other than homicide); Miller v. Alabama, 567 U.S. 460, 471–72, 489 (2012) (banning sentences of mandatory life imprisonment without parole for minors convicted of homicide). ↑

  4.  Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 Yale L.J. 2740, 2745–46 n.12 (2014) (explaining how social movements have created “both constituencies of accountability and alternative and authoritative interpretative communities”). ↑
  5.  See generally Sarah Medina Camiscoli, Teenage Rebels and the Demand for Due Process, Geo. J.L. & Mod. Critical Race Persps. (forthcoming 2024) (on file with authors) [hereinafter Medina Camiscoli, Teenage Rebels] (recounting the demosprudence of young women, enslaved youth, kidnapped indigenous youth, immigrant youth, and gender expansive youth). See also Sarah Medina Camiscoli, Youth Movement Law: The Case for Interpreting the Constitution with Mobilized Youth, 26 U. Pa. J. Const. L. (forthcoming 2024) (manuscript at 9, 52–53) (on file with authors) [hereinafter Medina Camiscoli, Youth Movement Law] (discussing the strategies of transgender and gender expansive youth leaders to pursue abolition, a Constitution of positive rights, and radical forms of direct democracy). ↑
  6.  The Participatory Law Scholarship movement has illuminated the harms of excluding marginalized peoples’ voices in legal knowledge productions. See Rachel López & Terrell Carter, If Lived Experience Could Speak: A Legal Method for Repairing Epistemic Violence in Law & the Legal Academy, 109 Minn. L. Rev. (forthcoming 2024) (manuscript at 4), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4741795 [https://perma.cc/MRB5-YT‌JU] (“[A]cademics often evoke the stories of [marginalized] communities without asking them what they think is best for them or making them the authors of their own stories. Then, their extracted stories are guarded behind paywalls inaccessible to them and in some instances, as will be detailed below, used against them as a matter of law.” (footnote omitted)). See generally Rachel López, Participatory Law Scholarship, 123 Colum. L. Rev. 1795 (2023) (describing the theory and practice of Participatory Law Scholarship). ↑
  7.  Todd Andrlik, How Old Were the Leaders of the American Revolution on July 4, 1776?, Slate (Aug. 20, 2013, 5:30 AM), https://slate.com/news-and-politics/2013/08/how-old-were-the-founding-fathers-the-leaders-of-the-american-revolution-were-younger-than-we-imagine‌.html [https://perma.cc/L38F-AR‌F9]; see also John S.C. Abbot, Lives of the Presidents of the United States of America, From Washington to the Present Time

    210 (Portland, H. Hallett & Co. 1879) (“[T]he first time [Andrew Jackson] took part in active service [was at fourteen years old] . . . . Andrew and his brother were taken prisoners. A British officer ordered him to brush his mud-spattered boots, I am a prisoner of war, not your servant,’ was the reply of the dauntless boy.”); c.f. Joseph Fishkin, Weightless Votes, 121 Yale L.J. 1888, 1904 (2012) (“‘[T]he framers were aware that this apportionment and representation base would include categories of persons who were ineligible to vote—women, children, bound servants, convicts, the insane, and, at a later time, aliens.’” (quoting Garza v. County of Los Angeles, 918 F.2d 763, 774 (9th Cir. 1990)); Julian Roberts-Grmela, A Seat Without A Voice: Student School Board Members Have No Voting Power, Chalkbeat (Jan. 24, 2023, 3:14 PM), https://www.ch‌alkbeat.org/newyork/2023/1/24/23569203/nyc-school-board-panel-for-educational-policy-st‌udent-power/ [https://perma.cc/M3AX-YHYA] (featuring students who deal with the “hard lesson” that students cannot vote on the school board even if they win a seat, which further elevates the disconnect between policies and their realities). ↑

  8.  See Douglas R. Egerton, Gabriel’s Rebellion: The Virginia Slave Conspiracies of 1800 and 1802, at 20, 45, 48, 165, 168 (1993); Darrell A.H. Miller, Estoppel by Nonviolence, 85 Law & Contemp. Probs. 69, 73 (2022) (“In 1800, a blacksmith named Gabriel, [enslaved] by a planter named Prosser, planned a multiracial republican revolution against slavery and merchant oppression in Henrico County, Virginia.”); Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 63–64 (2019) (“The abolitionist Constitution was forged, as well, by ordinary black folks who abandoned plantations, served in the Union Army, and demanded recognition of their equal citizenship.”). ↑
  9.  See Roberts, supra note 8, at 63–64. ↑
  10.  Robert M. Utley, The Last Sovereigns: Sitting Bull and the Resistance of the Free Lakotas 3 (2020); B.J. Jones, Welcoming Tribal Courts into the Judicial Fraternity: Emerging Issues in Tribal-State and Tribal-Federal Court Relations, 24 Wm. Mitchell L. Rev. 457, 514 n.255 (1998) (recognizing that “[a]lthough Sitting Bull was not a jurist in the English common law sense,” his people called on him to mediate governance disputes and resist injustice regarding indigenous sovereignty). ↑
  11.  Guinier & Torres, supra note 4, at 2799 (“Without the MFDP, without SNCC, without the march from Selma to Montgomery, there would have been no Voting Rights Act in 1965 . . . . Similarly, without the UFW—and its capacity to organize allies across the country . . . there would have been no Agricultural Labor Relations Act (ALRA) in California.”). ↑
  12.  Erica Chenoweth, Zoe Marks, Matthew Cebul & Miranda Rivers, Youth and LGBTQ+ Participation in Nonviolent Action, USAID (Jan. 2023), https://pdf.usaid.gov/pdf_docs/PA00‌ZSDF.pdf [https://perma.cc/E42J-SHA8] (finding more nonviolent protest activities than ever before, which also include a greater number of LGBTQ+ and youth participants). ↑
  13.  See Medina Camiscoli, Youth Movement Law, supra note 5 (manuscript at 8) (arguing that “mobilized youth play an essential role in transforming the present ‘political crisis’ into an opportunity to reimagine American democracy” (citations omitted)); Jack M. Balkin, The Cycles of Constitutional Time 44 (2020) (arguing that the United States is experiencing constitutional rot and defining constitutional decay or rot as “[w]hen a republic . . . loses its connection to the joint pursuit of the public good”). ↑
  14.  Mass shootings present an enormous public health crisis, as they constitute the number one cause of death of children in the United States. James G. Hodge, Jr., Erica N. White, Rebecca Freed & Nora Wells, Supreme Court Impacts in Public Health Law: 2021–2022, 50 J.L. Med. & Ethics 608, 610 (2022) (“Extending Second Amendment rights to include general self-defense outside the home threatens a multitude of public health regulations aimed at reducing firearm-related morbidity and mortality as Congress ponders federal legislative limits after multiple acts of gun violence in Buffalo, Uvalde (TX), and other locales in 2022.”); see also German Lopez, It’s Official: March for Our Lives Was One of the Biggest Youth Protests Since the Vietnam War, Vox (Mar. 26, 2018, 10:10 AM), https://www.vox.com/polic‌y-and-politics/2018/3/26/17160646/march-for-our-lives-crowd-size-count [https://perma.cc/‌Y8BN-MKHQ] (detailing how March for Our Lives included over 1.2 million people nationwide and was “one of the biggest rallies for gun control ever in the nation’s capital”); Fordham L. Ctr. on Race, L. & Just., Youth Power Not Guns, Vimeo (Oct. 25, 2023), https://vi‌meo.com/884009211 [https://perma.cc/XN8Q-ADS6]. ↑
  15.  The United States still incarcerates more young people than any other country in the world. See Alec Karakatsanis, The Punishment Bureaucracy: How to Think About “Criminal Justice Reform,” 128 Yale L.J.F. 848, 849–50 (2019) (using the term “human caging” to de-normalize the mass incarceration crisis in the United States). See generally Peer Def. Project, Abolish New York City’s Youth Punishment Systems (2023) (Anna Milliken & Kailyn Gaines eds.), https://acrobat.adobe.com/link/review?uri=urn:aaid:scds:US:df106b9c-53a8-34‌f4-97bc‌-206923b41449 [https://perma.cc/K2PX-PYJ4] (a youth-authored guide to the legal systems and history of punishing and caging of young people in New York City). See also Matthew Clair & Amanda Woog, Courts and the Abolition Movement, 110 Calif. L. Rev. 1, 7 (2022) (describing how the movement for abolition has impacted the court system through “(1) power shifting, (2) defunding and reinvesting, and (3) transformation”). ↑
  16.  “Six in ten each of Millennials and Gen Z see climate change as a critical threat to U.S. interests.” Emily Sullivan, Millennials and Gen Z Sound the Alarm on Climate Change, Chi. Council on Glob. Affs. (Jan. 18, 2023), https://globalaffairs.org/commentary-and-analysis/bl‌ogs/millennials-and-gen-z-sound-alarm-climate-change [https://perma.cc/6ZHV-AK8G]; see Camila Bustos, Movement Lawyering in the Time of the Climate Crisis, 39 Pace Env’t L. Rev. 1, 17 (2022) (describing Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020), as “a groundbreaking case where a group of youth plaintiffs filed a constitutional climate lawsuit to challenge the federal government’s actions causing climate change, alleging violations to their right to life, liberty, and property”). ↑
  17.  Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/2‌020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/7F6Z-ZPHK]; see Rashawn Ray, Black Lives Matter at 10 Years: 8 Ways the Movement Has Been Highly Effective, Brookings (Oct. 12, 2022), https://www.brookings.edu/articles/black-lives-matter-at-10-years-what-impact-has-it-had-on-policing/ [https://perma.cc/5N9K-3UW6] (explaining how Black Lives Matter transformed laws and policies around the United States). ↑
  18.  Young workers and mobilized students transformed the landscape of the labor movement. See Leanna First-Arai, Young Workers Are Bridging the Climate and Labor Movements, Teen Vogue (July 25, 2022), https://www.teenvogue.com/story/young-workers-labor-movement [https://perma.cc/4498-P7QT]; see also Zeynep Biyikli, Students Leverage Their University Affiliation to Gain Ground in the Fight Against Starbucks’s Union-Busting Efforts, 49 Hum. Rts. 36, 36 (2023) (“[U]niversity students across the country have reconsidered their school’s financial relationships with one of the most prolific union-busters in modern history.”). ↑
  19.  Sylvia R. Lazos Vargas, The Immigrant Rights Marches (Las Marchas): Did the “Gigante” (Giant) Wake Up or Does It Still Sleep Tonight?, 7 Nev. L.J. 780, 788, 790 (2007) (noting the 2006 Los Angeles protest of La Gran Marcha as the largest demonstration for immigrant rights in U.S. history, where “[s]tudents staged ‘walkouts’ for three consecutive days following ‘la Gran Marcha.’”). ↑
  20.  See Medina Camiscoli, Youth Movement Law, supra note 5 (manuscript at 59–77) (outlining over eighty youth organizations resisting laws that target gender expansive youth). ↑
  21.  See generally Medina Camiscoli, Teenage Rebels, supra note 5 (elevating the demosprudence of youth movement leaders in Students Engaged in Advancing Texas (“SEAT”) coalition fighting book bans in and outside of legal institutions). ↑
  22.  Months before the Supreme Court struck down constitutional protections for abortion, youth movement leaders began building mutual aid networks to protect access. See Christine Mui, “Thanks for Hating, It Helps the Movement”: How a 19 Year Old Used Her Internet Trolls to Raise $2 Million for Abortion Access in Less Than a Week, Fortune (Aug. 6, 2022, 6:00 AM), https://fortune.com/2022/08/06/teenager-fundraiser-abortion-access-gen-z-2-milli‌on [https://perma.cc/PCU5-ZQDG]; Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284–85 (2022) (abolishing the constitutional right to abortion and allowing states to make independent decisions about regulating abortion access). ↑
  23.  Young tenants have organized across communities and college campuses to demand a right to housing in the midst of a housing crisis. See, Youth All. For Hous., About, https://www.y4h.org/about [https://perma.cc/A2UJ-CK9C] (last visited Oct. 13, 2024) (“[E]nvision[ing] a world where housing is de-commodified, houselessness does not exist, and everyone is guaranteed a safe, quality, and permanently affordable home.”); Jonathan Franklin, Howard University Students Reach an Agreement with Officials After a Month of Protest, NPR (Nov. 15, 2021, 8:12 PM), https://www.npr.org/2021/11/15/1055929172/howar‌d-university-students-end-protest-housing-agreement [https://perma.cc/5E5U-US42] (describing how students protested uninhabitable housing conditions on Howard University’s campus); John Infranca, The New State Zoning: Land Use Preemption Amid A Housing Crisis, 60 B.C. L. Rev. 823, 829 (2019) (“The breadth and depth of the housing crisis in communities throughout the country has made housing affordability a salient issue for a broader swath of the population.”). ↑
  24.  See López, supra note 6, at 1798 (“[Participatory Law Scholarship] also involves another profoundly human element, one that is fundamental to the ethos and epistemology of Participatory Law Scholarship: camaraderie.”). ↑
  25.  See generally Mariame Kaba & Shira Hassan, Fumbling Towards Repair: A Workbook for Community Accountability Facilitators (2019) (providing tips and educational materials to community accountability facilitators). See also I. India Thusi, Book Review, Feminist Scripts for Punishment, 134 Harv. L. Rev. 2449, 2480 (2021) (discussing Mariame Kaba and Shira Hassan’s workbook Fumbling Towards Repair, “which provides facilitation guidance on responding to harm and encouraging people who inflict harm to take responsibility”). ↑
  26.  See López, supra note 6, at 1800; see also id. (“PLS “shifts power to people who are not lawyers, establishing them as experts in their own legal realities . . . push[ing] the boundaries of how society and the legal academy understand their interventions.”). ↑
  27.  Id. at 1801. ↑
  28.  See The HLS Conference Organizers, Critical Race Theory: Inside and Beyond the Ivory Tower, 69 UCLA L. Rev. Disc. (Law Meets World) 118, 126–27 (2022) (arguing that the recent surge in “anti-CRT” legislation targeted at schools is an example of epistemicide and recognizing that law school spaces fail to critique the “dominant epistemics of law”); see also López & Carter, supra note 6 (manuscript at 36) (defining “academic silencing” as “using the tools at academics’ disposal to suppress or alter [marginalized] knowledge” and observing that “[l]egal academics regularly speak for the marginalized, articulating how the law could better serve them, but rarely ceding space or resources so that the subaltern can speak for themselves”). ↑
  29.  Legal scholars have argued that legal academia emboldens racial capitalism when historically marginalized people or ideas are included in university spaces to extract value from those marginalized people or ideas for the institution. See Nancy Leong, Racial Capitalism, 126 Harv. L. Rev. 2151, 2171–72 (2013) (arguing that diversity has historically been sanctioned when privileged, White people in the academy decide they can derive social or economic value from nonwhiteness). ↑
  30.  See López & Carter, supra note 6 (manuscript at 23) (“We employ the term legal smothering to describe when the subaltern silences themselves either because the law prevents them from speaking for themselves or only recognizes testimony that aligns with the dominant discourse in law.”). See generally Guinier & Torres, supra note 4 (elevating the extra-judicial interpretations of law of social movements as a legitimate interpretation of law). See also Medina Camiscoli, Youth Movement Law, supra note 5 (manuscript at 7) (explaining how gender expansive youth “and their families have fled hostile states to escape skyrocketing rates of harassment, hate crimes, criminalization, suicide, and other efforts to eradicate trans people from public life” such as bans on books, community organizations, and families where young people can exercise their right to bodily autonomy); Benjamin C. Park, Rishub K. Das & Brian C. Drolet, Increasing Criminalization of Gender-Affirming Care for Transgender Youths—A Politically Motivated Crisis, 175
    JAMA P

    ediatrics

    1205, 1205 (2021) (discussing how laws that criminalize gender-affirming care have serious and negative health impacts on transgender and gender expansive youth). ↑

  31.  Boaventura de Sousa Santos, Epistemologies of the South: Justice Against Epistemicide 93 (2014) (defining “humane governance” of knowledge as one that “‘facilitates communication across . . . nationalist, ethnic, class, generational, cognitive, and gender divides,’ but does so with ‘respect and celebration of difference and an attitude of extreme skepticism toward exclusivist alarms that deny space for expression and exploration of others’” (quoting Richard Falk, On Humane Governance: Toward a New Global Politics 242 (1995))). The authors acknowledge the recent allegations of sexual misconduct by young, femme academics against Boaventura de Sousa Santos and assert that sexual misconduct in the academy perpetuates its own kind of epistemic injustice. See Lieselotte Viaene, Catarina Laranjeiro & Miye Nadya Tom, The Walls Spoke When No One Else Would, in Sexual Misconduct in Academia: Informing an Ethics of Care in the University 208, 208–23 (Erin Pritchard & Delyth Edwards eds., 2003) (detailing the authors’ experiences of sexual harassment at an unnamed institution where they were formerly Ph.D. students or postdoctoral researchers and its impact on knowledge production); see also Mariama Correia, Brazilian State Deputy Says She Was Sexually Assaulted by Boaventura de Sousa Santos, Publica (Apr. 14, 2023, 5:55 PM), https://apublica.org/2023/04/brazilian-state-deputy-says-she-was-sexual‌ly-assaulted-by-boaventura-de-sousa-santos/ [https://perma.cc/GY8W-ENST] (providing further information on the sexual assault allegations against Sousa Santos). Throughout the remainder of the paper, the authors make efforts to cite interpretations of epistemic violence by women legal academics in solidarity with the movement to investigate the alleged sexual misconduct and elevate the jurisprudence of marginalized women in legal academia. ↑
  32.  López, supra note 6, at 1827–29 (describing that the two principles that undergird equitable partnerships in the co-author model are critical self-reflection and combating academic institutionalization). ↑
  33.  See Guinier & Torres, supra note 4, at 2756–57 (explaining how activist movements in American history “forge[d] new understandings of the status quo . . . [by] creating an alternative narrative of constitutional meaning”); see also Kempis Songster, Rachel López & Gerald Torres, Participatory Law Scholarship as Demosprudence, 110 Va. L. Rev. Online 298 (2024) (discussing how PLS provides a powerful methodology to democratize the law and legal scholarship and improve democratic institutions). ↑
  34.  See Guinier & Torres, supra note 4, at 2750; see also López & Carter, supra note 6 (manuscript at 6) (arguing that “PLS should be seen as reparation for ongoing epistemic violence at the hands of academics and academic institutions”). ↑
  35.  See Amanda Alexander, Nurturing Freedom Dreams: An Approach to Movement Lawyering in the Black Lives Matter Era, 5 How. Hum. & Civ. Rts. L. Rev. 101, 10 2, 123 (2021) (discussing how lawyers are not trained to encourage freedom dreams). ↑
  36.  Jonathan Gingerich, Democratic Vibes, 32 Wm. & Mary Bill Rts. J. 1135, 1138 (2024); id. at 1152 (“As the Black Panther Party put it, ‘All Power to the People!’” (citing 7eventytimes7, All Power to the People!—The Black Panther Party and Beyond, YouTube (June 8, 2016), https://youtu.be/pKvE6_s0jy0 [https://perma.cc/2UNU-2G8H])). ↑
  37.  See Guinier & Torres, supra note 4, at 2803–04 (discussing how the resistance and legal interpretation of grassroots movements have enhanced democracy through the passage of new laws, shifts in jurisprudence, and changes in public opinion). ↑
  38.  UCLA Sch. of L. Critical Race Stud., CRT Forward, https://crtforward.law.ucla.‌edu/ [https://perma.cc/7KEK-DG8Q] (last visited Aug. 21, 2024); Jonathan Friedman & Nadine Farid Johnson, Banned in the USA: The Growing Movement to Censor Books in Schools, PEN America (Sept. 19, 2022), https://pen.org/report/banned-usa-growing-movement-to-cens‌or-books-in-schools/ [https://perma.cc/G8CC-EL8P]. ↑
  39.  See López & Carter, supra note 6 (manuscript at 48–50). ↑
  40.  See López, supra note 6, at 1827–29 (identifying strategies such as fostering critical self-reflection and combatting academic institutionalization as critical to the process of developing PLS partnerships and projects). ↑
  41.  Specifically, the two situate their practice within Sameer Ashar’s theory of prefigurative pedagogy, arguing that Youth Participatory Scholarship offers a potent practice of prefigurative pedagogy where marginalized and mobilized youth—those with limited to no levers to participate in democracy or resist authoritarianism—disrupt the gatekeeping of legal knowledge that justifies their exclusion. See generally Sameer M. Ashar, Pedagogy of Prefiguration, 132 Yale L.J.F. 869 (2023) (arguing that lawyers should experiment with social analysis, radical imagination, and dialogical relationship with collaborators to prefigure utopian social arrangements with social movement organizations). ↑
  42.  Id. at 871 n.8 (citing Prefiguring Border Justice: Interview with Harsha Walia, 6 Critical Ethnic Stud. (Nov. 27, 2019), https://manifold.umn.edu/read/prefiguring-border-justice-inter‌view-with-harsha-walia [https://perma.cc/6MCM-NDXT]). ↑
  43.  See also Ruth Levitas, Utopia as Method 5–6 (2013); Balkin, supra note 13, at 44 (arguing that the United States is experiencing constitutional rot and defining constitutional decay or rot as “[w]hen a republic . . . loses its connection to the joint pursuit of the public good”); Jack M. Balkin, A Symposium on Jack M. Balkin’s The Cycles of Constitutional Time: How to Do Constitutional Theory While Your House Burns Down, 101 B.U. L. Rev. 1723, 1756 (2021) (“Constitutional rot refers to the processes by which governments become increasingly less democratic and less republican. Rot is endemic to republics. A long tradition of political thought holds that republics are delicate institutions that are easily corrupted and hard to keep going. The people lose civic virtue, the institutions break down, and the norms of trust that are necessary for multiparty competition decay.”); id. at 1759 (“Issues of race, culture, religion, and identity have only made the problems worse. Over the course of four decades, the Republican Party increasingly has become a White person’s party, and politicians have used issues of race, culture, religion, and identity to motivate the Party’s base of White voters.”). ↑
  44.  John Wall, Adultism and Voting Age Discrimination, 36 Harv. Hum. Rts. J. 327, 328 (2023) (“A first step toward a systemic understanding of adultism can be found in . . . [c]hildren’s mistreatment—for example, their being subject to physical punishment, being banned from public spaces, and lack of real voices in schools—is underwritten by the cultural acceptance of an in-built adult-child hierarchy. In . . . the political sphere, ‘adultism refers to all the behaviors and attitudes that flow from the assumption that adults are better than young people, and are entitled to act upon young people in many ways without their agreement.’ This concept of a deep-seated disrespect toward children locates the problem in broad systems of historical preconception.” (quoting Barry Checkoway, Adults as Allies, Partnerships/Community, 1996, at 14)); see also Sarah Medina Camiscoli, Paige Duggins-Clay, Maryam Salmanova & Ibtihal Chamakh, Youth Dignity Takings: How Book and Trans Bans Take Youth Property and Dignity, 1 Loy. Interdisc. J. Pub. Int. L. 1, 75 (2024) (“Adultism legitimizes the belief that Young People are inferior to adults. Adultism further justifies disregarding the contributions of Young People and excluding Youth as decision makers in their communities. Adultism vindicates attorneys who relegate Youth to periphery positions in the legal workplace as interns or community volunteers, where they will often bear the brunt of busy work or outreach for little-to-no compensation.” (footnotes omitted)). ↑
  45.  Guinier & Torres, supra note 4, at 2746 n.12 (“Democracy-enhancing social change reminds us that genuine communities of consent are what justify democracy.” (emphasis added)). ↑
  46.  See Medina Camiscoli et al., supra note 44, at 74–75. ↑
  47.  Leong, supra note 29, at 2153 n.7. ↑
  48.  See generally Medina Camiscoli, Youth Movement Law, supra note 5 (arguing for the elevation and inclusion of marginalized youths’ experiences in constitutional interpretation). ↑

  49.  See generally Sarah Medina Camiscoli & Kia Turner, Critical Youth Theory: Toward the Abolition of Infantilization and Adultification Under Law, https://www.criticalyouththeory.‌org/ [https://perma.cc/WM7R-WPP9] (last visited Aug. 22, 2024); Kia Turner, Darion Wallace, Danielle Miles-Langaigne & Essence Deras, Toward Black Abolition Theory Within Radical Abolition Studies: Upending Practices, Structures, and Epistemes of Domination, 18 J. Multicultural Educ. 275 (2024) (critiquing the epistemic domination of marginalized communities across generations and calling for new interdisciplinary practices). ↑

Participatory Law Scholarship as Demosprudence

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

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

Introduction

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

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

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

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

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

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

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

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