Volume 110

Adapting Conservation Governance Under Climate Change: Lessons from Indian Country

Anthropogenic climate change is increasingly causing disruptions to ecological communities upon which Natives have relied for millennia. These disruptions raise existential threats not only to ecosystems but to Native communities. Yet no analysis has carefully explored how climate change is affecting the governance of tribal ecological lands. This Article, by examining the current legal adaptive capacity to manage the effects of ecological change on tribal lands, closes this scholarly and policy gap.

This Article first considers interventions to date, finding them to be lacking in even assessing—let alone addressing—climate risks to tribal ecosystem governance. It then carefully explores how climate change raises distinctive risks and advantages to tribal governance as compared to federal and state approaches. Relying in part on a review of publicly available tribal plans, this Article details how tribal adaptation planning to date has fared.

Focusing on climate change and ecological adaptation, this Article delves into the substantive, procedural, and structural aspects of tribal governance. Substantively, tribal governance often tends to be considerably less wedded to conservation goals and strategies that rely on “natural” preservation, and many tribes focus less on maximizing yield in favor of more flexible objectives that may be more congruent with adaptation. Procedurally, like other authorities, many tribal governments could better integrate adaptive management and meaningful public participation into adaptation processes, yet some tribes serve as exemplars for doing so (as well as for integrating traditional ecological knowledge with Western science). Structurally, tribal ecological land governance should not only continue to tap the advantages of decentralized tribal authority but also complement it through more robust (1) federal roles in funding and information dissemination and (2) intergovernmental coordination, assuming other governments will respect tribal sovereignty. This Article concludes by identifying areas where tribal management practices might serve as valuable exemplars for adaptation governance more generally, as well as areas in which additional work would be helpful.

Introduction

In the wilderness of Alaska, where snow-covered landscapes stretch as far as the eye can see, a profound ecological drama is unfolding. It is a story that speaks of the intimate bond between the land, its creatures, and the Native peoples who have called it home for millennia. At the heart of this story are herds of caribou, majestic creatures with antlered crowns, whose annual migrations have been a spectacle of nature and a lifeline for the Native communities of Alaska.1 1.Christian Thorsberg, Andrea Medeiros, Kristin Reakoff & Brittany Sweeney, Caribou and Communities in a Changing Climate, ArcGIS StoryMaps(Dec. 5, 2023), https://storymaps.arc‌gis.com/stories/158c95ff398440e8b875a791e2bec2f8/ [https://perma.cc/2VA2-GPDJ] (“Caribou (Rangifer tarandus) have roamed the circumpolar north for hundreds of thousands of years. . . . Alaska Native peoples and other subsistence users depend upon this cyclical movement for annual harvests, relying on caribou for food, clothing, cultural practice, and emotional and spiritual health.”).Show More But as the world warms due to climate change, the Arctic’s icy facade begins to crack and melt, causing profound transformation.2 2.Id.(“[A]s a warming climate changes their habitat—causing seasons to shift, ice to melt at different times of the year, and unpredictable precipitation—the population of many of Alaska’s caribou herds has declined, affecting not only the species, but humans who have lived with and from them since [time] immemorial.”).Show More The caribou, long attuned to the rhythms of the frozen tundra, now find their ancient routes disrupted as climate change negatively affects food and habitat.3 3.See Elizabeth Manning, Caribou and Climate Change: The Nelchina Caribou Herd, Lichens and Fire, Alaska Fish & Wildlife News (Mar. 2008), https://www.adfg.alaska.gov/in‌dex.cfm?adfg=wildlifenews.view_article&articles_id=356 [https://perma.cc/H73R-6BLP].Show More

For Alaska Natives, this upheaval is nothing short of a crisis. These Native communities have relied on the caribou as a primary source of sustenance, clothing, and cultural significance for countless generations.4 4.Thorsberg et al., supra note 1; see also Caribou Stewardship Based on Indigenous Knowledge, Nat’l Park Serv. (Nov. 24, 2020), https://www.nps.gov/articles/000/ikcaribouste‌wardship.htm#:~:text=The%20I%C3%B1upiat%20have%20relied%20on,hunt%20through%20federal%20subsistence%20management [https://perma.cc/UZ7Z-ZSLM]; Hannah Atkinson, Mobilizing Indigenous Knowledge Through the Caribou Hunter Success Working Group, 9 Land, Oct. 31, 2020, at 1, 2, https://www.mdpi.com/2073-445X/9/11/423 [https://pe‌rma.cc/KY4P-USS7] (“For the Iñupiat of northwest Alaska, caribou is a cultural keystone species. That is, the [Western Arctic Caribou Herd] ‘play a unique role in shaping and characterizing the identity of the people who rely on them [and] that become embedded in a people’s cultural traditions and narratives, their ceremonies, dances, songs, and discourse.’” (footnotes omitted) (quoting Ann Garibaldi & Nancy Turner, Cultural Keystone Species: Implications for Ecological Conservation and Restoration, 9 Ecology & Soc’y, no. 3, 2004, at 1, 1, https://www.ecologyandsociety.org/vol9/iss3/art1/print.pdf [https://perma.cc/3ZLT-ZC‌RQ])).Show More Subsistence hunters, who used to be able to rely on caribou for survival, now have to travel as many as 200 miles to find a herd, and one hunter reported not seeing caribou for years.5 5.W. Arctic Caribou Herd Working Grp., Working Group Proposes Large Reduction in Caribou Harvest, Caribou Trails, Summer 2023, at 1, 1, https://www.adfg.alaska.gov/static/ho‌me/library/pdfs/wildlife/caribou_trails/caribou_trails_2023.pdf [https://perma.cc/467Q-HZ‌6M].Show More The caribou, once so abundant and dependable, have become less predictable, and Alaska’s Native communities who depend on them are left in uncertainty.6 6.Thorsberg et al., supra note 1.Show More The very essence of their identity, intertwined with the land and the caribou, faces an existential challenge. This harrowing story is but one example of myriad instances across “Indian country”7 7.18 U.S.C. § 1151 (“Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country’, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”). This term originated in the context of the elimination of Natives via war. Roxanne Dunbar-Ortiz, An Indigenous People’s History of the United States 131–32 (Tenth-Anniversary ed. 2022).Show More in which anthropogenic climate change is profoundly affecting species’ traditional habitats. Climate-driven species shifts affect both the communities whose lands species previously inhabited and the communities onto whose lands such species have moved (or are attempting to move).

Anthropogenic climate change has induced, and will continue to induce, substantial changes to virtually all ecosystems around the globe. The distributions of plant and animal species are shifting faster than they did historically.8 8.See generally I-Ching Chen, Jane K. Hill, Ralf Ohlemüller, David B. Roy & Chris D. Thomas, Rapid Range Shifts of Species Associated with High Levels of Climate Warming, 333 Science 1024 (2011) (demonstrating that species range shifts are occurring at an accelerated rate associated with high levels of climate warming).Show More As demonstrated by the story of caribou in Alaska, these stressors are fundamentally changing ecosystems, creating new communities, and raising new challenges for management such as how to deal with “new natives” displacing or otherwise harming “old natives.”9 9.Alejandro E. Camacho & Jason S. McLachlan, Regulatory Fragmentation: An Unexamined Barrier to Species Conservation Under Climate Change, 3 Frontiers in Climate, Nov. 22, 2021, at 1, 4, https://www.frontiersin.org/journals/climate/articles/10.3389/fclim.20‌21.735608/full [https://perma.cc/WXD9-539F] (“In the novel ecological communities created when ‘new natives’ mix with ‘old natives,’ the difficulty of establishing [lists of prohibited invasive species] will be compounded by ambiguity about the status of ‘new natives’ combined with the difficulty of assessing the acceptable impact of ‘new natives’ in the context of novel ecological communities.”).Show More Though climate change is causing stress to and reshaping virtually every feature of human and nonhuman systems in every community, this Article focuses on the long-overlooked but massive effects of climate change on biotic communities—in particular, those located on tribal lands, species or landscapes of cultural or spiritual significance to Native peoples, and/or nonhuman biota potentially subject to tribal governance in the foreseeable future.

As one of the Authors has written extensively about elsewhere, the substantial ecological changes wrought by climate change—and the uncertainty that accompanies these stressors—likely necessitate a rethinking of the substantive goals, procedural mechanisms, and structural institutions of conservation governance worldwide.10 10.Alejandro E. Camacho,De- and Re-Constructing Public Governance for Biodiversity Conservation, 73 Vand. L. Rev. 1585, 1589 (2020) [hereinafter Camacho, De- and Re-Constructing]; Alejandro E. Camacho, In the Anthropocene: Adaptive Law, Ecological Health, and Biotechnologies,15 Law, Innovation & Tech. 280, 299–300(2023) [hereinafter Camacho, In the Anthropocene].Show More Substantively, climate change illuminates the tensions between the various conventional objectives of conservation instantiated throughout natural resources law.11 11.See Camacho, In the Anthropocene, supra note 10, at 286, 298–300 (detailing traditional goals of conservation typical in natural resource law and their pitfalls in a changing climate).Show More Procedurally, climate change also raises fundamental questions about how to effectively cultivate participatory decision-making processes in ways that manage ecological and regulatory uncertainty.12 12.Camacho, De- and Re-Constructing, supra note 10, at 1613 (“The standard public processes used for implementing public biodiversity management and for regulating private activity have not been well structured to promote learning and manage the substantial uncertainties and evolving character of ecological resources.”).Show More Finally, climate change exacerbates existing cross-jurisdictional challenges—for example, transboundary cost externalization, regulatory commons risks, and conflicts between different adopted management strategies.13 13.See id. at 1623–24; see also Camacho, In the Anthropocene, supra note 10, at 303 (arguing that current legal frameworks in Western jurisdictions are not designed to manage complex, transboundary issues like climate change); Alejandro E. Camacho & Robert L. Glicksman, Reorganizing Government: A Functional and Dimensional Framework 200 (2019) (describing increased cross-jurisdictional challenges raised by climate change, such as interjurisdictional spillovers and conflicts).Show More

As detailed in this Article, tribal sovereignty, tribal lands, and Indigenous cultures14 14.A note about the terminology used in this Article. We use the term “tribe” or “tribal” to refer to the 574 federally recognized tribes located within the exterior boundaries of the United States. Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 944 (Jan. 8, 2024). We acknowledge that there are numerous Indigenous groups within the United States that have not been federally recognized for a wide variety of historical and political reasons (e.g., Native Hawaiians). Cohen’s Handbook of Federal Indian Law §§ 3.02, 4.07[4][a], [c] (Nell Jessup Newton et al. eds., 2005) (discussing factors contributing to federal recognition of tribes generally and speaking to the situation of Native Hawaiians specifically). Because this Article focuses on federal law and the federal government’s relationship with tribes, however, we will focus our analysis on federally recognized tribes. When we wish to be more inclusive than federally recognized tribes, we will use the term “Indigenous.”Show More raise these issues in distinctive and insightful ways. Building on issues and paradoxes we have written about more broadly elsewhere, this Article delves into the intersection of tribes and climate change, with a special emphasis on ecological adaptation. Tribal lands and governance amplify certain challenges that are likely to be experienced elsewhere, in part due to the distinctive vulnerabilities15 15.We do not use the term “vulnerabilities” to suggest that tribes are victims, or somehow lesser than other communities impacted by climate change. Rather, we use this term to highlight historical and legal differences that combine to make tribal communities often uniquely vulnerable to the impacts of climate change.Show More of tribal communities.16 16.See infra Subsection I.B.1.Show More There is an indisputable and

well-documented history of the taking of vast expanses of indigenous lands with abundant resources, along with active suppression of indigenous peoples’ culture and political institutions, entrenched patterns of discrimination against them and outright brutality, all of which figured in the history of the settlement of the country and the building of its economy.17 17.S. James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples on the Situation of Indigenous Peoples in the United States of America, 32 Ariz. J. Int’l & Compar. L. 51, 61 (2015).Show More

These “conditions of disadvantage persist with the continuing effects of a long history of wrongs and past, misguided policies.”18 18.Id. at 59.Show More The brutal treatment of Indigenous peoples by colonial powers19 19.See, e.g., Immigration & Relocation in U.S. History: Native American, Libr. of Cong., https://www.loc.gov/classroom-materials/immigration/native-american/ [https://perma.cc/K‌CK7-QG4L] (last visited Sept. 6, 2024) (explaining that European settlement in North America triggered “disease, starvation, and bloodshed”).Show More has resulted in the deepened vulnerability20 20.For a discussion of the use of the word “vulnerability,” see Hans-Martin Füssel, Vulnerability: A Generally Applicable Conceptual Framework for Climate Change Research, 17 Glob. Env’t Change 155, 157–58 (2007) (presenting a framework for understanding the concept of vulnerability through the lens of four different factors: physical, economic, social, and environmental); see also Karen O’Brien, Siri Eriksen, Lynn P. Nygaard & Ane Schjolden, Why Different Interpretations of Vulnerability Matter in Climate Change Discourses, 7 Climate Pol’y 73, 74 (2007) (attempting to organize the varying scholarly definitions of “vulnerability” into one “common framework”).Show More of the approximately 56.2 million acres of land now held in trust by the federal government for tribes.21 21.What Is a Federal Indian Reservation?, U.S. Dep’t of the Interior: Bureau of Indian Affs. (Aug. 19, 2017, 2:53 PM), https://www.bia.gov/faqs/what-federal-indian-reservation [https://‌perma.cc/TUY7-47Y8].Show More In terms of climate change, the cumulative impact of this historic mistreatment has resulted in many tribal communities being placed on less desirable land and, as a result, facing poor economic conditions—factors which lessen tribes’ ability to effectively combat the negative impacts of climate change.22 22.See Justin Farrell et al., Effects of Land Dispossession and Forced Migration on Indigenous Peoples in North America, 374 Science, Oct. 29, 2021, at 1, 8, https://www.scien‌ce.org/doi/epdf/10.1126/science.abe4943.Show More

There are legal and cultural differences that affect the magnitude of this vulnerability. Native cultures and traditions are often tied to the environment and land in a manner that differs from that of the dominant society.23 23.We would like to avoid traditional stereotypes of American Indians as “Noble Savages” or “Bloodthirsty Savages.” See Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge, 21 Vt. L. Rev. 225, 270 (1996) (“The problems of cross-cultural interpretation and the attempt to define ‘traditional’ indigenous beliefs raise a common issue: the tendency of non-Indians to glorify Native Americans as existing in ‘perfect harmony’ with nature (the ‘Noble Savage’ resurrected) or, on the other hand, denounce them as being as rapacious to the environment as Europeans (the ‘Bloodthirsty Savage’ resurrected).”).Show More While it is without doubt that each tribal nation has a distinctive relationship with its particular land and environment, it is also true that the common spiritual, medicinal, and cultural connections that tribal communities have with their land differs in kind from the relationship other communities in the United States have with their land.24 24.Frank Pommersheim, The Reservation as Place: A South Dakota Essay, 34 S.D. L. Rev. 246, 250 (1989); see also Nat’l Cong. of Am. Indians, Resolution EWS-06-004: Supporting a National Mandatory Program to Reduce Climate Change Pollution and Promote Renewable Energy, at 2 (2006 Winter Session), https://archive.ncai.org/attachments/Resolution_KSlvpc‌MnfSafhsDsxFnQcTDKMclEpNfvEPQFCsLlhonOXZrOOXu_EWS-06-004.pdf [https://per‌ma.cc/89XA-Z2K3] (“[C]limate-related changes to the weather, food sources, and local landscapes undermine the social identity and cultural survival of American Indians and Alaska Natives . . . .”).Show More Many tribal communities “have a deep relationship with ancestral homelands for sustenance, religious communion and comfort, and to maintain the strength of personal and interfamilial identities. Through language, songs, and ceremonies, tribal people continue to honor sacred springs, ancestral burial places, and other places where ancestral communities remain alive.”25 25.Mary Christina Wood & Zachary Welcker, Tribes as Trustees Again (Part I): The Emerging Tribal Role in the Conservation Trust Movement,32 Harv. Env’t L. Rev. 373, 381 (2008).Show More As a result, for many (but not all) tribal and Indigenous people, culture and spirituality are connected to specific lands. Such connections can provide wisdom about adaptive capacity, but they also can hinder the benefits or even availability of certain adaptive strategies (e.g., making it especially traumatizing to relocate or to be unable to relocate in the face of climate change).

The distinctive legal connections tribes have to specific lands, for instance, restrict the capacity for tribes to accommodate climate change through movement. Many tribes have treaty agreements with the federal government, and the rights emerging from these treaties (such as hunting and fishing rights) are usually tied to a tribe’s traditional homelands.26 26.Cohen’s Handbook of Federal Indian Law, supra note 14, § 4.05[1], at 276, § 18.02, at 1122–24.Show More In fact, the majority of federal Indian law is connected to the legally defined “status” of land, defined as “Indian country.”27 27.See supra note 7.Show More The fact that much of Indian law and treaty rights are connected to specific parcels of land deepens tribes’ vulnerability to climate change, as a tribe may not easily leave its tribal territory and continue to enjoy the same legal rights elsewhere.

A focus on tribal ecosystem governance in light of climate change is also invaluable given tribes’ distinctive role in advancing climate change adaptation and resource conservation. First, there are approximately 56.2 million acres of land held in trust by the federal government for the benefit of tribes and individual Indians.28 28.What Is a Federal Indian Reservation?, supra note 21.Show More Many areas falling under tribal control can be used for conservation purposes,29 29.See Background: Sharing Information & Techniques Nationwide, Native Am. Fish & Wildlife Soc’y, https://www.nafws.org/about/background/ [https://perma.cc/HEJ2-CMPV] (last visited Sept. 6, 2024).Show More with more Indigenous-managed lands being ecologically intact and serving as a refuge for threatened species.30 30.Cf. Stephen T. Garnett et al., A Spatial Overview of the Global Importance of Indigenous Lands for Conservation, 1 Nature Sustainability 369, 370 (2018) (describing the global importance and value of Indigenous-managed lands in conservation goals); Christopher J. O’Bryan et al., The Importance of Indigenous Peoples’ Lands for the Conservation of Terrestrial Mammals, 35 Conservation Biology 1002, 1006 (2021) (highlighting the importance of Indigenous lands for the conservation of threatened and endangered mammal species globally).Show More Second, because of the sovereign status of these tribes, states and localities have little jurisdictional control over the regulatory activity on these lands.31 31.California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987) (explaining that states generally do not have the authority to enforce their laws on tribes unless Congress grants them the power). See generally Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (holding that the laws of Georgia generally did not apply to Cherokee territory within the state because of tribal sovereignty and federal preemption).Show More Adaptation planning therefore is vital for ensuring that effective resource conservation is occurring. Third, in line with the experimentalist benefits of a federal system,32 32.Camacho & Glicksman, supra note 13, at 34.Show More the innovations being developed by tribes in this space may prove valuable to other sovereigns—such as other tribes, states, and localities—as they look to develop their own climate change adaptation policies. Finally, there are likely to be substantial opportunities for interjurisdictional information sharing and learning; federal, state, and municipal jurisdictions are likely to learn from the experience of tribal authorities in climate adaptation and ecosystem management, and vice versa.33 33.See generally Morgan Hepler & Elizabeth Ann Kronk Warner, Learning from Tribal Innovations: Lessons in Climate Change Adaptation, 49 Env’t L. Rep. 11130 (2019) (discussing how tribal governments can serve as valuable “laboratories” from which other sovereigns can learn); Elizabeth Ann Kronk Warner, Returning to the Tribal Environmental “Laboratory”: An Examination of Environmental Enforcement Techniques in Indian Country, 6 Mich. J. Env’t & Admin. L. 341 (2017) (same); Elizabeth Ann Kronk Warner, Justice Brandeis and Indian Country: Lessons from the Tribal Environmental Laboratory, 47 Ariz. St. L.J. 857 (2015) [hereinafter Kronk Warner, Justice Brandeis and Indian Country] (same); Elizabeth Ann Kronk Warner, Tribes as Innovative Environmental “Laboratories,” 86 U. Colo. L. Rev. 789 (2015) [hereinafter Kronk Warner, Tribes as Innovative Environmental “Laboratories”] (same).Show More

Accordingly, a careful and thorough accounting of the distinctive governance challenges raised on tribal lands by climate change is long overdue. Unfortunately, existing academic literature and federal governmental analyses on, and initiatives for, addressing the potential harms from climate change—both the ecological effects on tribal lands, as well as the challenges raised for effective management of tribal lands—remain limited. The scientific analysis of climate effects on vulnerable species, and biota on tribal lands more generally, lags behind that for other lands. More importantly, existing scholarly literature and government analyses insufficiently explore how climate change is likely to stress the governance goals, processes, and institutions that may influence the management of ecological resources on tribal lands.

This Article seeks to begin to fill these gaps in several important ways. The first objective is to bring awareness of the distinctive challenges and opportunities of climate-related conservation on tribal land to the broader scholarly and policy discussion on climate change adaptation in general and ecological adaptation in particular. The character of tribal lands offers important context for (1) assessing the potentially conflicting substantive conservation goals of ecosystem governance; (2) working through decisional processes about conservation; and (3) managing structural governance problems, including regulatory fragmentation and intergovernmental coordination. Second, this Article makes clear that the federal government could and should do substantially more to support tribal governance in the context of preparing for and managing the effects of climate change, particularly related to promoting biodiversity and ecological health. Finally, this Article illuminates various insights for scholars and policymakers, not only in tribal governments engaging in adaptation planning but also local, state, and federal jurisdictions. In particular, it offers examples of tribal governments that may be engaging in adaptation strategies about which other authorities can learn important lessons.

To accomplish these goals, Part I establishes a foundation upon which to scaffold our arguments by delving into the scant existing literature related to ecological adaptation and climate change in Indian country. Scholars and policymakers have focused on concerns about tribal vulnerabilities and sovereignty, as well as the integration of Indigenous knowledge (“IK”) (i.e., the breadth of Indigenous socioeconomic, cultural, and scientific knowledge) and traditional ecological knowledge (“TEK”) into federal and state processes, but they largely neglect deeper substantive, procedural, and structural governance concerns raised by climate change. Because effective governance is key to adequately addressing the challenges posed by climate change and ecological adaptation, evaluation of tribal governance structures proves incredibly important to any discussion of solutions.

Part II takes a deeper dive into how these different facets of governance are likely to be affected by the impact of climate change on tribal lands. To do so, it relies in part on the first thorough assessment of published and publicly available tribal adaptation plans. First, it considers the conventional strategies and goals of resource conservation, namely laws promoting historical preservation, natural and wilderness preservation, and sustained yield. While some tribal governments face tensions between promoting historical fidelity and managing climate change, others are developing adaptation strategies that are more congruent with promoting biodiversity and long-term ecological health. Additionally, as compared to federal and state resource management laws, tribal governance tends to be less wedded to goals and strategies that rely on “natural” preservation. Finally, many tribes focus less on maximizing yield in favor of more flexible objectives that may be more congruent with ecological adaptation.

In terms of procedural ecosystem governance, this Article emphasizes the need to incorporate adaptability, promote meaningful participation, and better integrate Western science with TEK. We explore, however, how long-established governance frameworks for many tribal governments, and even some tribal adaptation plans, allow for more adaptive and open decision-making. Some adaptation plans also illustrate how TEK can be effectively combined in resource management with conventional Western scientific data generation and analysis.

Finally, this Article considers the structural configuration of authority among the constellation of institutions affecting the governance of tribal ecological lands. Tribes may suffer under prevailing decentralized, fragmented, and uncoordinated conservation governance, yet there nonetheless are diversity, experimentation, expertise, and legitimacy advantages to decentralized governmental structures—especially in the context of climate change adaptation. As such, it makes sense to maintain decentralized authority but to complement it through more robust federal roles in funding and information collection and dissemination, as well as by better promoting intergovernmental coordination that expands on recent federal efforts to make federal-tribal consultation more robust.34 34.This recommendation assumes that other sovereigns will acknowledge and respect tribal sovereignty.Show More This Article concludes with a forward-looking agenda for scholars and policymakers interested in enhancing the cross-jurisdictional governance of tribal ecological lands.

  1.  Christian Thorsberg, Andrea Medeiros, Kristin Reakoff & Brittany Sweeney, Caribou and Communities in a Changing Climate, ArcGIS StoryMaps (Dec. 5, 2023), https://storymaps.arc‌gis.com/stories/158c95ff398440e8b875a791e2bec2f8/ [https://perma.cc/2VA2-GPDJ] (“Caribou (Rangifer tarandus) have roamed the circumpolar north for hundreds of thousands of years. . . . Alaska Native peoples and other subsistence users depend upon this cyclical movement for annual harvests, relying on caribou for food, clothing, cultural practice, and emotional and spiritual health.”). ↑
  2.  Id. (“[A]s a warming climate changes their habitat—causing seasons to shift, ice to melt at different times of the year, and unpredictable precipitation—the population of many of Alaska’s caribou herds has declined, affecting not only the species, but humans who have lived with and from them since [time] immemorial.”). ↑
  3.  See Elizabeth Manning, Caribou and Climate Change: The Nelchina Caribou Herd, Lichens and Fire, Alaska Fish & Wildlife News (Mar. 2008), https://www.adfg.alaska.gov/in‌dex.cfm?adfg=wildlifenews.view_article&articles_id=356 [https://perma.cc/H73R-6BLP]. ↑
  4.  Thorsberg et al., supra note 1; see also Caribou Stewardship Based on Indigenous Knowledge, Nat’l Park Serv. (Nov. 24, 2020), https://www.nps.gov/articles/000/ikcaribouste‌wardship.htm#:~:text=The%20I%C3%B1upiat%20have%20relied%20on,hunt%20through%20federal%20subsistence%20management [https://perma.cc/UZ7Z-ZSLM]; Hannah Atkinson, Mobilizing Indigenous Knowledge Through the Caribou Hunter Success Working Group, 9 Land, Oct. 31, 2020, at 1, 2, https://www.mdpi.com/2073-445X/9/11/423 [https://pe‌rma.cc/KY4P-USS7] (“For the Iñupiat of northwest Alaska, caribou is a cultural keystone species. That is, the [Western Arctic Caribou Herd] ‘play a unique role in shaping and characterizing the identity of the people who rely on them [and] that become embedded in a people’s cultural traditions and narratives, their ceremonies, dances, songs, and discourse.’” (footnotes omitted) (quoting Ann Garibaldi & Nancy Turner, Cultural Keystone Species: Implications for Ecological Conservation and Restoration, 9 Ecology & Soc’y, no. 3, 2004, at 1, 1, https://www.ecologyandsociety.org/vol9/iss3/art1/print.pdf [https://perma.cc/3ZLT-ZC‌RQ])). ↑
  5.  W. Arctic Caribou Herd Working Grp., Working Group Proposes Large Reduction in Caribou Harvest, Caribou Trails, Summer 2023, at 1, 1, https://www.adfg.alaska.gov/static/ho‌me/library/pdfs/wildlife/caribou_trails/caribou_trails_2023.pdf [https://perma.cc/467Q-HZ‌6M]. ↑
  6.  Thorsberg et al., supra note 1. ↑
  7.  18 U.S.C. § 1151 (“Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country’, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”). This term originated in the context of the elimination of Natives via war. Roxanne Dunbar-Ortiz, An Indigenous People’s History of the United States 131–32 (Tenth-Anniversary ed. 2022). ↑
  8.  See generally I-Ching Chen, Jane K. Hill, Ralf Ohlemüller, David B. Roy & Chris D. Thomas, Rapid Range Shifts of Species Associated with High Levels of Climate Warming, 333 Science 1024 (2011) (demonstrating that species range shifts are occurring at an accelerated rate associated with high levels of climate warming). ↑
  9.  Alejandro E. Camacho & Jason S. McLachlan, Regulatory Fragmentation: An Unexamined Barrier to Species Conservation Under Climate Change, 3 Frontiers in Climate, Nov. 22, 2021, at 1, 4, https://www.frontiersin.org/journals/climate/articles/10.3389/fclim.20‌21.735608/full [https://perma.cc/WXD9-539F] (“In the novel ecological communities created when ‘new natives’ mix with ‘old natives,’ the difficulty of establishing [lists of prohibited invasive species] will be compounded by ambiguity about the status of ‘new natives’ combined with the difficulty of assessing the acceptable impact of ‘new natives’ in the context of novel ecological communities.”). ↑
  10. Alejandro E. Camacho, De- and Re-Constructing Public Governance for Biodiversity Conservation, 73 Vand. L. Rev. 1585, 1589 (2020) [hereinafter Camacho, De- and Re-Constructing]; Alejandro E. Camacho, In the Anthropocene: Adaptive Law, Ecological Health, and Biotechnologies, 15 Law, Innovation & Tech. 280, 299–300

    (2023) [hereinafter Camacho, In the Anthropocene]. ↑

  11.  See Camacho, In the Anthropocene, supra note 10, at 286, 298–300 (detailing traditional goals of conservation typical in natural resource law and their pitfalls in a changing climate). ↑
  12.  Camacho, De- and Re-Constructing, supra note 10, at 1613 (“The standard public processes used for implementing public biodiversity management and for regulating private activity have not been well structured to promote learning and manage the substantial uncertainties and evolving character of ecological resources.”). ↑
  13.  See id. at 1623–24; see also Camacho, In the Anthropocene, supra note 10, at 303 (arguing that current legal frameworks in Western jurisdictions are not designed to manage complex, transboundary issues like climate change); Alejandro E. Camacho & Robert L. Glicksman, Reorganizing Government: A Functional and Dimensional Framework 200 (2019) (describing increased cross-jurisdictional challenges raised by climate change, such as interjurisdictional spillovers and conflicts). ↑
  14.  A note about the terminology used in this Article. We use the term “tribe” or “tribal” to refer to the 574 federally recognized tribes located within the exterior boundaries of the United States. Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 944 (Jan. 8, 2024). We acknowledge that there are numerous Indigenous groups within the United States that have not been federally recognized for a wide variety of historical and political reasons (e.g., Native Hawaiians). Cohen’s Handbook of Federal Indian Law §§ 3.02, 4.07[4][a], [c] (Nell Jessup Newton et al. eds., 2005) (discussing factors contributing to federal recognition of tribes generally and speaking to the situation of Native Hawaiians specifically). Because this Article focuses on federal law and the federal government’s relationship with tribes, however, we will focus our analysis on federally recognized tribes. When we wish to be more inclusive than federally recognized tribes, we will use the term “Indigenous.” ↑
  15.  We do not use the term “vulnerabilities” to suggest that tribes are victims, or somehow lesser than other communities impacted by climate change. Rather, we use this term to highlight historical and legal differences that combine to make tribal communities often uniquely vulnerable to the impacts of climate change. ↑
  16.  See infra Subsection I.B.1. ↑
  17.  S. James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples on the Situation of Indigenous Peoples in the United States of America, 32 Ariz. J. Int’l & Compar. L. 51, 61 (2015). ↑
  18.  Id. at 59. ↑
  19.  See, e.g., Immigration & Relocation in U.S. History: Native American, Libr. of Cong., https://www.loc.gov/classroom-materials/immigration/native-american/ [https://perma.cc/K‌CK7-QG4L] (last visited Sept. 6, 2024) (explaining that European settlement in North America triggered “disease, starvation, and bloodshed”). ↑
  20.  For a discussion of the use of the word “vulnerability,” see Hans-Martin Füssel, Vulnerability: A Generally Applicable Conceptual Framework for Climate Change Research, 17 Glob. Env’t Change 155, 157–58 (2007) (presenting a framework for understanding the concept of vulnerability through the lens of four different factors: physical, economic, social, and environmental); see also Karen O’Brien, Siri Eriksen, Lynn P. Nygaard & Ane Schjolden, Why Different Interpretations of Vulnerability Matter in Climate Change Discourses, 7 Climate Pol’y 73, 74 (2007) (attempting to organize the varying scholarly definitions of “vulnerability” into one “common framework”). ↑
  21. What Is a Federal Indian Reservation?, U.S. Dep’t of the Interior: Bureau of Indian Affs. (Aug. 19, 2017, 2:53 PM), https://www.bia.gov/faqs/what-federal-indian-reservation [https://‌perma.cc/TUY7-47Y8]. ↑
  22.  See Justin Farrell et al., Effects of Land Dispossession and Forced Migration on Indigenous Peoples in North America, 374 Science, Oct. 29, 2021, at 1, 8, https://www.scien‌ce.org/doi/epdf/10.1126/science.abe4943. ↑
  23.  We would like to avoid traditional stereotypes of American Indians as “Noble Savages” or “Bloodthirsty Savages.” See Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge, 21 Vt. L. Rev
    .

    225, 270 (1996) (“The problems of cross-cultural interpretation and the attempt to define ‘traditional’ indigenous beliefs raise a common issue: the tendency of non-Indians to glorify Native Americans as existing in ‘perfect harmony’ with nature (the ‘Noble Savage’ resurrected) or, on the other hand, denounce them as being as rapacious to the environment as Europeans (the ‘Bloodthirsty Savage’ resurrected).”). ↑

  24.  Frank Pommersheim, The Reservation as Place: A South Dakota Essay, 34 S.D. L. Rev
    .

    246, 250 (1989); see also Nat’l Cong. of Am. Indians, Resolution EWS-06-004: Supporting a National Mandatory Program to Reduce Climate Change Pollution and Promote Renewable Energy, at 2 (2006 Winter Session), https://archive.ncai.org/attachments/Resolution_KSlvpc‌MnfSafhsDsxFnQcTDKMclEpNfvEPQFCsLlhonOXZrOOXu_EWS-06-004.pdf [https://per‌ma.cc/89XA-Z2K3] (“[C]limate-related changes to the weather, food sources, and local landscapes undermine the social identity and cultural survival of American Indians and Alaska Natives . . . .”). ↑

  25.  Mary Christina Wood & Zachary Welcker, Tribes as Trustees Again (Part I): The Emerging Tribal Role in the Conservation Trust Movement, 32 Harv. Env’t L. Rev. 373, 381 (2008). ↑
  26.  Cohen’s Handbook of Federal Indian Law, supra note 14, § 4.05[1], at 276, § 18.02, at 1122–24. ↑
  27.  See supra note 7. ↑
  28. What Is a Federal Indian Reservation?, supra note 21. ↑
  29.  See Background: Sharing Information & Techniques Nationwide, Native Am. Fish & Wildlife Soc’y, https://www.nafws.org/about/background/ [https://perma.cc/HEJ2-CMPV] (last visited Sept. 6, 2024). ↑
  30.  Cf. Stephen T. Garnett et al., A Spatial Overview of the Global Importance of Indigenous Lands for Conservation, 1 Nature Sustainability 369, 370 (2018) (describing the global importance and value of Indigenous-managed lands in conservation goals); Christopher J. O’Bryan et al., The Importance of Indigenous Peoples’ Lands for the Conservation of Terrestrial Mammals, 35 Conservation Biology 1002, 1006 (2021) (highlighting the importance of Indigenous lands for the conservation of threatened and endangered mammal species globally). ↑
  31.  California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987) (explaining that states generally do not have the authority to enforce their laws on tribes unless Congress grants them the power). See generally Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (holding that the laws of Georgia generally did not apply to Cherokee territory within the state because of tribal sovereignty and federal preemption). ↑
  32.  Camacho & Glicksman, supra note 13, at 34. ↑
  33.  See generally Morgan Hepler & Elizabeth Ann Kronk Warner, Learning from Tribal Innovations: Lessons in Climate Change Adaptation, 49 Env’t L. Rep. 11130 (2019) (discussing how tribal governments can serve as valuable “laboratories” from which other sovereigns can learn); Elizabeth Ann Kronk Warner, Returning to the Tribal Environmental “Laboratory”: An Examination of Environmental Enforcement Techniques in Indian Country, 6 Mich. J. Env’t & Admin. L. 341 (2017) (same); Elizabeth Ann Kronk Warner, Justice Brandeis and Indian Country: Lessons from the Tribal Environmental Laboratory, 47 Ariz. St. L.J. 857 (2015) [hereinafter Kronk Warner, Justice Brandeis and Indian Country] (same); Elizabeth Ann Kronk Warner, Tribes as Innovative Environmental “Laboratories,” 86 U. Colo. L. Rev. 789 (2015) [hereinafter Kronk Warner, Tribes as Innovative Environmental “Laboratories”] (same). ↑

  34.  This recommendation assumes that other sovereigns will acknowledge and respect tribal sovereignty. ↑

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). ↑

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