Critical Legal Studies Archives - Columbia Law Review

Preface: Reflections on Redeeming Justice During the heart of the pandemic, at a time when citizens were being brutalized by police for protesting the murder of George Floyd, a Black man who was killed while in police custody,[footnote]Evan Hill, Ainara Tiefenthäler, Christiaan Triebert, Drew Jordan, Haley Willis & Robin Stein, How George Floyd Was Killed in Police Custody, N.Y. Times (May 31, 2020), https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html (on file with the Columbia Law Review) (last updated Jan. 24, 2022).[/footnote] an unconventional idea for a law review article took shape—an idea that would culminate in the liberation of one of my coauthors and, in some ways, mine too.[footnote]Press Release, UN Off. of the High Comm’r on Hum. Rts., USA: UN Experts Urge Far-Reaching Reforms on Policing and Racism (Feb. 26, 2021), https://www.ohchr.org/en/press-releases/2021/02/usa-un-experts-urge-far-reaching-reforms-policing-and-racism [https://perma.cc/US3J-H45M]; see also Letter from ACLU of Pa. & Andy and Gwen Stern Cmty. Lawyering Clinic to U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (Nov. 23, 2020), https://www.ohchr.org/sites/default/files/Documents/Issues/Racism/RES_43_1/NGOsAndOthers/andy-gwen-stern-community-lawyering-clinic-aclu-pennsylvania-add.pdf [https://perma.cc/9NYC-UZAN] (documenting violence by the Philadelphia Police Department against protesters in wake of the murder of George Floyd for submission to the UN Special Procedures).[/footnote] The pandemic hindered a project undertaken by a group of men sentenced to a life without parole (LWOP). That project aimed to produce greater recognition of a right to redemption, a concept collectively conceived of as a human right by members of the group, who called themselves the Right to Redemption (R2R) Committee.[footnote]For more information about the Right to Redemption Committee, see Right to Redemption, https://right2redemption.com/ [https://perma.cc/3TDY-WMTW] [hereinafter R2R Mission] (last visited Aug. 5, 2023).[/footnote] With the Committee unable to meet or speak due to a prolonged prison lockdown, it became imperative to find another way to carry the work forward. Upon learning that human rights jurisprudence echoed the legal framework first articulated by these men on the inside, I proposed writing a law review article with two leaders of the group, Terrell “Rell” Carter and Kempis “Ghani” Songster. Centering the group’s Right to Redemption analytical framework as well as Rell’s and Ghani’s lived experiences, the article, I explained, would contend that the capacity for change is an innate human characteristic, fundamentally intertwined with human dignity.[footnote]See Terrell Carter, Rachel López & Kempis Songster, Redeeming Justice, 116 Nw. U. L. Rev. 315, 318–19, 324–35 (2021).[/footnote] Together, we would argue that this aspect of the human condition should be reflected in the law.[footnote]Id. at 380–82.[/footnote] And so it was that Redeeming Justice was born. Through countless 2000-character messages via the Pennsylvania Department of Corrections messaging portal and fifteen-minute monitored calls made during the thirty-minute increments that my incarcerated coauthor Rell was permitted to be outside his cell, the article came to life. That article would spur what is now becoming an emergent movement in the legal academy—a genre of legal scholarship called Participatory Law Scholarship or PLS. PLS is legal scholarship written in collaboration with authors like Rell and Ghani who have no formal training in the law but rather expertise in its function and dysfunction through lived experience. This current piece, written from my perspective as an academic partner in PLS, is the first in a series that will map the contours and contributions of PLS to the legal academy, the law, and society more generally. But before we get there, it feels important to take a moment to reflect on what came before—in other words, what partnering to create Redeeming Justice meant for and revealed to me. As I step back from Redeeming Justice and reflect on my own motivations for coauthoring the piece, I must acknowledge my own discomfort in doing so. While Redeeming Justice was foregrounded in the lived experiences of my coauthors, Ghani and Rell, my voice was notably absent. Ghani pushed this issue at one point in a podcast interview we did together. He wanted to know what motivated me, both generally and specifically in relation to this article. I remember dodging the question. Part of the reason was I never had to justify my scholarly choices based on my moral commitments before.[footnote]I owe a debt of gratitude to Lauren Katz Smith for helping me to come to this realization.[/footnote] Since grade school, I had been taught to remove the “I” from my writing—to write myself out of my writing, essentially to erase myself. And as an academic, rigor is often marked by distance from the subject of study. So, we academics often strip ourselves from our work, as if we are not the ones forming and framing the ideas in the context of our own lived experience.[footnote]See, e.g., Angel E. Sanchez, In Spite of Prison, 132 Harv. L. Rev. 1650, 1653 (2019) (“When I . . . arrived at a university, I was led to believe that my personal experiences had no place in my academic writing. It was not enough to be neutral; I had to appear impersonally objective. . . . I created a pacified distance between my experience and me, hiding behind my writing.”).[/footnote] This project was different. Instead of being a ghost writer or pushing myself to be a distant observer of suffering, it gave me an opening to be closer to my work, to the reader, and to my own ideas. PLS involves not just bringing others to legal scholarship, but for the academic partners in PLS, bringing more of ourselves to legal scholarship. But this scholarship is not just about self. It also involves another profoundly human element, one that is fundamental to the ethos and epistemology of Participatory Law Scholarship: camaraderie . Over the years, I have built partnerships with those who have been caught in the dragnet of the carceral state for decades, seemingly with very little opportunity to be treated as human beings or for emancipation no matter how they’ve changed. Because I know them as mentors, friends, and colleagues, I feel this injustice—and feel it deeply. Some legal scholars view this as a liability, but as I document in Part III of this Piece, I see it as a tremendous asset to my scholarship. But you might be wondering, why scholarship? Why not instead cabin my work to legal reports and litigation, the traditional province of legal advocates? Primarily, it is because these modalities limit the possibilities of true transformation, not just of laws, but of the systems that create, enforce, and maintain them.[footnote]Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Mich. L. Rev. 2411, 2428–29 (1989) (explaining how the “linguistic code required by the court sterilize[s]” the facts and renders them muted and devoid of outrage).[/footnote] Legal advocacy in other forums can be limiting because you must frame your argument under existing laws and legal structures. It often does not allow dreaming. Without denying that there are some real constraints in the format and conventions of legal scholarship, one of the attributes of legal scholarship is that scholars are not required to fit their arguments into existing legal doctrine or structures. Legal scholars regularly reject doctrine as unjust and imagine new legal rules and realities that might not be immediately realizable given current real-world constraints. You can think big. And, at this moment, what is needed most is not a new law, a successful lawsuit, or even a hard-hitting report, but a profound rethinking of the understandings, narratives, purposes, and structures on which law is built. This is not the work of a well-crafted policy paper or litigation strategy, which are essentially reformist strategies—it is the work of boundary-pushing thinkers and theorists wherever they are found. As I will explain further below, it is my conviction that those most impacted by laws and legal structures are best positioned to reimagine them because they know those structures more intimately than most. On the other hand, some might question the wisdom of investing the time and energy needed to write a lengthy law review article, essentially aimed at legal elites, when that time could be put to better use in building extralegal movements. At a webinar on Redeeming Justice organized by the Carr Center for Human Rights Policy at the Harvard Kennedy School, Professor Andrew Crespo raised this question. Noting that the article lifted up two strategies for change, the “community organizer’s strategy” and the “lawyer’s strategy,” which in his view are somewhat in tension with each other, he asked why Redeeming Justice centered lawyers, law, and judges, rather than focusing on organizing and building the power of the people in R2R.[footnote]Harvard Carr Ctr. for Hum. Rts. Pol’y, Redeeming Justice, YouTube, at 50:18 (Oct. 7, 2021), https://www.youtube.com/watch?v=dIXkivdvXh8 (on file with the Columbia Law Review ).[/footnote] It is certainly a fair question, given, as Crespo reminded us, the role lawyers have played in “kill[ing] off more groups by helping them than ever would have died if the lawyers had never showed up.”[footnote]William P. Quigley, Reflections of Community Organizers: Lawyering for Empowerment of Community Organizations, 21 Ohio N.U. L. Rev. 455, 457 (1994).[/footnote] But according to the organizer who shared these cautionary words, the lawyer “kills the leadership and power of the group” by taking momentum away from the group.[footnote]Id. at 458.[/footnote] Lawyers “want to advocate for others and do not understand the goal of giving a people a sense of their own power.”[footnote]Id.[/footnote] What distinguishes PLS, however, is that it does not center lawyers as problem-solvers. Rather, it shifts power to people who are not lawyers, establishing them as experts in their own legal realities. Moreover, instead of displacing grassroots organizers, PLS aims to push the boundaries of how society and the legal academy understand their interventions. In the spirit of what law professors Amna Akbar, Jocelyn Simonson, and Sameer Ashar suggest in Movement Law, PLS appreciates movements as sites of knowledge production and creativity.[footnote]See generally Amna A. Akbar, Sameer M. Ashar & Jocelyn Simonson, Movement Law, 73 Stan. L. Rev. 821, 879 (2021) (arguing that legal scholars should center collective processes of ideation by producing legal scholarship in solidarity with social movements). I adopt the definition articulated by these authors of social movements as “collective effort[s] to change the social structure that uses extra-institutional methods at least some of the time.” Id. at 824 n.1 (internal quotation marks omitted) (quoting Debra C. Minkoff, The Sequencing of Social Movements, 62 Am. Soc. Rev. 779, 780 n.3 (1997)).[/footnote] It amplifies the making of legal meaning central to movement building but often less visible to the outside observer.[footnote]See Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 Yale L.J. 2740, 2756–57 (2014) (documenting how various social movements in the United States “forge[d] new understandings of the status quo . . . [by] creating an alternative narrative of constitutional meaning”).[/footnote] Indeed, people with lived experience confronting the daily realities of injustice and organizing the disenfranchised are often theorists, whose perspectives are sorely needed to reimagine broken legal structures.[footnote]Delgado, supra note 8, at 2414–15 (describing how counternarratives “can open new windows into reality, showing us that there are possibilities for life other than the ones we live . . . [and can] enrich imagination and teach that by combining elements from the story and current reality, we may construct a new world richer than either alone”).[/footnote] Informed by this expertise, they, much like academically trained scholars, craft theories of change based on factual investigation and power analyses. This was certainly the case with the members of the R2R Committee. Critically reflecting on their circumstances as well as the narratives that informed them, the R2R members collectively constructed an alternative narrative to disrupt the status quo, a theory of change to match, and prescriptions about what solutions are needed. That is the work of theorists. And as Professor Seema Saifee suggests, this work does not begin and end with the work of the R2R Committee; rather their work is an example of a larger movement for decarceral solutions emanating from individuals who are incarcerated.[footnote]See Seema Tahir Saifee, Decarceration’s Inside Partners, 91 Fordham L. Rev. 53, 59 (2022) (arguing that legal scholars and all those committed to large-scale decarceration should look to the ideation of those behind prison walls for decarceral solutions).[/footnote] This knowledge production is happening organically in prisons across the United States.[footnote]Id.[/footnote] The authors of Subversive Legal Education: Reformist Steps to Abolitionist Visions adopt the term “organic jurists” to describe those who, like the members of the R2R Committee, are “legal scholars without traditional educational prerequisites.”[footnote]Christina John, Russell G. Pearce, Aundray Jermaine Archer, Sarah Medina Camiscoli, Aron Pines, Maryam Salmanova & Vira Tarnavska, Subversive Legal Education: Reformist Steps Toward Abolitionist Visions, 90 Fordham L. Rev. 2089, 2092 (2022).[/footnote] The authors derive this term from philosopher Antonio Gramsci’s concept of “organic intellectuals.”[footnote]Id.[/footnote] While Gramsci believed that all people are intellectuals, organic intellectuals, according to Gramsci, are those leaders from nondominant groups who organize others to take transformative action to replace the dominant ideology and alter their own realities.[footnote]Antonio Gramsci, Intellectuals and Education, in The Gramsci Reader: Selected Writings, 1916–1935, at 300, 304–05, 310 (David Forgacs ed., 2000) (explaining that all people have the capacity to be intellectuals, but what distinguishes “intellectuals” from others is their function in society as leaders, educators, and organizers of other people, with the aim of maintaining or supplanting, respectively, the dominant group’s ideology).[/footnote] But the work of organic jurists like the members of the R2R Committee goes further than community legal education. They are also organic legal theorists, in that they generate knowledge and liberatory theory through critical reflection on their lived experience. For example, the R2R Committee did more than educate themselves about their rights; they theorized a new right—the right to redemption—that better addressed the cruelty of their specific condition of confinement and created a path to freedom. Their process was “organic” in the sense that their theorizing was derived from living material without interference from the artificial agents of academic assimilation, which can produce rather formulaic scholarship devoid of innovation and conviction. To be clear, I am not arguing that the training and education obtained at academic institutions are inconsequential. To the contrary, PLS involves a partnership with academically trained legal scholars for two principal reasons. First, because it is part of our jobs as academics, we have the time, training, and resources to engage in deep research to 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. The role of the legally trained academic can be as rudimentary as identifying supporting sources and putting citations into Bluebook format or as profound as collectively building knowledge with organic jurists, grounded in legal academics’ training in law and exposure to legal scholarship. In essence, PLS does not displace traditional doctrinal analysis but complements it and offers necessary context and perspective. Consequently, this collaboration can help both PLS partners to deepen their understanding of the changes needed to make the law more just and equitable. Second, academics also have the privilege, platform, access, and connections needed to amplify the knowledge produced by organic jurists to new audiences, including judges, policymakers, and other legal scholars. This contribution to PLS can take the form of identifying venues for publication, organizing symposia, soliciting funding to compensate organic theorists for their contributions, and facilitating introductions to others who can also play a role in amplifying the episteme of organic jurists. Much like community lawyers, who envision marginalized communities as vital partners in problem-solving and achieving structural change and who use their legal training to advance communal goals, legal academic partners use their expertise in law and knowledge of the scholarly enterprise to amplify the analytical work of their non-academically trained partners.[footnote]For more background on community lawyering, see Susan L. Brooks & Rachel E. López, Designing a Clinic Model for a Restorative Community Justice Partnership, 46 Wash. U. J.L. & Pol’y 139, 149–51 (2015) (“While community lawyering appears to take many forms—such as litigation, transactional work, and dispute resolution—and span a range of practice areas, those who self-identify as community lawyers share a set of fundamental principles regarding what is necessary to alleviate poverty and oppression.”).[/footnote] As will be explored more fully in a second article, participatory law scholarship’s goal is not only to expose those in power to alternative ways of understanding the law and the social issues that it is meant to address, but also to make legal scholarship, and consequently law, more theoretically accessible to those who are not lawyers.[footnote]Terrell Carter & Rachel López, The Demosprudential Potential of Participatory Law Scholarship (n.d.) (unpublished manuscript) (abstract on file with the Columbia Law Review).[/footnote] The law is hoarded by the powerful. The technicalities of the law make those who are not formally trained in law feel disconnected from the law and encourage apathy toward the law as a vehicle of social change. This mystification of the law inhibits organizing and leaves existing power structures intact. Legal scholarship aids and abets this disconnection from law because its identification of the problem and potential solutions can feel so detached from reality that it is rendered irrelevant to activists and practitioners. To counter this obfuscation of law, PLS aims to pull back the layers so that those for whom the law is most consequential can see themselves reflected in it and know that they are and can be a part of the making of legal meaning. PLS does this by ensuring that people who are formally educated in the law are not the only people who are able to contribute to legal scholarship and the development of legal theory. By validating alternative ways of knowing what the law is and what changes are needed for it to realize its full potential, PLS thus aims to democratize the law.[footnote]See José Wellington Sousa, Relationship as Resistance: Partnership and Vivencia in Participatory Action Research, in Handbook on Participatory Action Research and Community Development 396, 404 (Randy Stoecker & Adrienne Falcón eds., 2022) (“On one hand, these are institutional incentives towards university–community partnerships and contribute to the creation of a knowledge democracy by validating different ways of knowing.”).[/footnote] As Rell and I will explain further in our next article, by involving organic jurists in legal thinking, PLS has the potential to make the law more accessible to the broader public, thereby hopefully making them more inclined to participate in the making of legal meaning in scholarship and elsewhere. Introduction Taking inspiration from the experience of coauthoring Redeeming Justice , in this Piece, I outline the theory and practice of what we are calling Participatory Law Scholarship. 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. While scholars in other disciplines have embraced research resulting from collaborations between academics and non-academically trained community leaders, such participatory methods are rarely employed in legal scholarship. Lawyers and legal scholars often evoke stories of nonlawyers in their work but almost never share authorship with them.[footnote]Binny Miller, Telling Stories About Cases and Clients: The Ethics of Narrative, 14 Geo. J. Legal Ethics 1, 4 (2000) (“Yet surprisingly, while clients are in the forefront of many law review articles, they are almost invisible in the decision making process about which story to tell or whether to tell a story at all.”).[/footnote] For that reason, when we wrote Redeeming Justice , we were uncertain how it would be received, whether it would have any impact, or even if it would be published at all. Yet, perhaps due to an unusual combination of timing, readiness for novel approaches to entrenched legal problems, and the incredible ingenuity of my coauthors, Redeeming Justice has been not only accepted but embraced. It was published in the Northwestern Law Review and awarded the 2022 Law and Society Association (LSA) Article Prize for the best socio-legal article published in the past two years. Redeeming Justice also helped lay the groundwork for a complaint to the United Nations alleging that the United States is committing torture by condemning people to “death by incarceration” (DBI) through extreme sentences like life without parole—thereby putting into action a call for such an appeal made in the R2R Committee’s mission statement.[footnote]For more information about this UN Complaint, see Death by Incarceration Is Torture, https://www.deathbyincarcerationistorture.com [https://perma.cc/QC7Q-9GD7] (last visited Aug. 5, 2023); see also R2R Mission, supra note 3.[/footnote] It also has been cited in several amicus briefs challenging LWOP sentences.[footnote]See, e.g., Brief of Amicus Curiae Def. Ass’n of Phila. in Support of Appellants Marie Scott, Normita Jackson, Marsha Scaggs, and Tyreem Rivers at 20, Scott v. Pa. Bd. of Prob. & Parole, 284 A.3d 178 (Pa. 2022) (No. 16), https://ccrjustice.org/sites/default/files/attach/2021/10/Amicus%20Curiae%20Brief%20Defender%20Association%20of%20Philadelphia.pdf [https://perma.cc/7M5W-UAWZ].[/footnote] Most importantly, it contributed to the liberation of one of my coauthors when the Philadelphia District Attorney’s office named the article as one reason for why it supported Rell’s commutation, which the Governor of Pennsylvania granted on July 14, 2022.[footnote]Documentation on file with the Columbia Law Review .[/footnote] For some, these “material outcomes,” or at least a scholarly motivation to achieve them, render scholarship like Redeeming Justice suspect.[footnote]See Tarunabh Khaitan, On Scholactivism in Constitutional Studies: Skeptical Thoughts, 20 Int’l J. Const. L. 547, 548 (2022) [hereinafter Khaitan, On Scholactivism].[/footnote] While some academics believe that scholarship like Redeeming Justice is urgently needed to advance social justice, others resist its classification as legal scholarship at all, claiming that it lacks the objectivity necessary to qualify.[footnote]See, e.g., Ian Leslie, Activism Isn’t for Everyone: Why Academics and Journalists Shouldn’t Take Sides, The Ruffian (Aug. 20, 2022), https://ianleslie.substack.com/p/activism-isnt-for-everyone [https://perma.cc/52L7-K4VF] (explaining why not all people can engage in the work activists do); Orin Kerr (@OrinKerr), Twitter ( July 13, 2022), https://twitter.com/OrinKerr/status/1547287325209530368 [https://perma.cc/9HX8-JR74] (“The challenge, I think, is that scholarship requires willingness to change your mind. You need to go where the best arguments take you, including to a realization that everything you’ve ever thought before was wrong.”).[/footnote] For instance, in a recent editorial, London School of Economics law professor Tarunabh Khaitan characterizes legal scholars who engage with others outside of academia to inform the production of knowledge as compromising the “moral obligations” of a scholar.[footnote]Khaitan, On Scholactivism, supra note 28, at 548.[/footnote] As I will detail below, this debate inherently turns on one’s theory of how knowledge is produced and whether you believe that human beings can perceive the external world through their own consciousness alone or instead believe that reality is collectively constructed. Consequently, in part in response to these skeptics, this Piece begins to chart the epistemology—or theory of knowledge—that drives PLS. In line with the emancipatory pedagogy of Paulo Freire,[footnote]Paulo Freire, Pedagogy of the Oppressed 48 (Myra Bergman Ramos trans., 2014) [hereinafter Freire, Pedagogy of the Oppressed] (describing the Pedagogy of the Oppressed as “a pedagogy which must be forged with, not for, the oppressed (whether individuals or peoples) in the incessant struggle to regain their humanity”).[/footnote] which provides its theoretical foundation, PLS rejects the narrow and detached notion of expertise that often informs the law and legal scholarship. This detached notion of expertise is epitomized by Khaitan, who believes that the sanctity of knowledge production depends on legal scholars abandoning their “activist impulse” and retreating from the world to discover “truth.”[footnote]See, e.g., Khaitan, On Scholactivism, supra note 28, at 555 (“Once the broad topic is selected, the scholar takes over. Framing the question, determining the appropriate method, literature survey, evidence gathering, argumentation, writing, workshopping, revising—these are all scholarly activities that must be undertaken with a deep commitment to intellectual virtues shaped solely by the goal of knowledge creation.”); Tarunabh Khaitan, Facing Up: Impact-Motivated Research Endangers Not Only Truth, but Also Justice, Verfassungsblog (Sept. 6, 2022), https://verfassungsblog.de/facing-up-impact-motivated-research-endangers-not-only-truth-but-also-justice/ [https://perma.cc/5ZPX-2CRR] [hereinafter Khaitan, Facing Up] (“My project in the original piece was not to evaluate any academic work, but to discuss an internal dilemma concerning scholarly ethics: ‘how should I, as a scholar with activist impulses, approach my vocation.’”).[/footnote] Indeed, his prototypical methodology reflects his belief that legal scholars do their work best when they take “distance” from the subject being studied and adopt “an attitude of skepticism.”[footnote]Khaitan, On Scholactivism, supra note 28, at 551. Khaitan asserts activism often “(i) has shorter time and space horizons, (ii) demands an attitude of certainty, and (iii) celebrates and rewards those who realize material change.” Id. Khaitan argues these key features of activism “are in tension with the academy’s need to provide time and distance for research and reflection, inculcate an attitude of skepticism, and reward truth-seekers and knowledge-creators.” Id.[/footnote] In contrast, PLS adopts a Freirean understanding of knowledge production, whereby legal scholars can better understand how the law functions in the world by examining it in concert with those who have experienced its bluntest consequences. According to Freire, because our individual knowledge is inherently subjective, “truth” can only be revealed through engaging in dialogue with others so that we can see a fuller picture of the world.[footnote]Wayne Au, Epistemology of the Oppressed: The Dialectics of Paulo Freire, 5 J. for Critical Educ. Pol’y Stud. 175, 184–85 (2007) (“[T]hrough dialogue human beings both know what they know and know what they don’t know[] and . . . can then improve . . . their ability to transform reality. . . . To learn in dialogue [involves] . . . a social act, a process which in turn helps you understand it for yourself.”).[/footnote] Drawing on Freire’s dialectical process of learning through dialogue with others, this work presents an alternative theory of knowledge, based on the belief that we arrive at truth collectively, not singularly. PLS is thus grounded in a belief that we cannot fully understand the law’s effects in the material world through our own consciousness alone. In other words, we cannot understand the law only by looking at how it appears on the page. Rather, law is best understood in conversation and solidarity with others who see law from a different vantage point. I thus contend that partnership with those who have no formal training in law—but who have expertise in law’s dysfunction—can help us to see the law more clearly. By foregrounding the lived experience and analysis of nonlawyers who are frequently marginalized, not just by the law, but in legal scholarship as well, PLS creates a fuller account of the law. As I set forth below, laws are often constructed and interpreted by those who are not directly affected by the problems the laws are meant to address.[footnote]In this way, PLS echoes Professor Mari J. Matsuda’s call to “look[] to the bottom” for insights into how best to design laws that serve social justice ends. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 324 (1987).[/footnote] For that reason, undergirding the law are nascent narratives about how the world works that at times do not reflect the realities of those most profoundly impacted by those laws.[footnote]As Richard Delgado and Jean Stefancic observe: In legal discourse, preconceptions and myths, for example, about black criminality or Muslim terrorism, shape mindset—the bundle of received wisdoms, stock stories, and suppositions that allocate suspicion, place the burden of proof on one party or the other, and tell us in cases of divided evidence what probably happened. These cultural influences are probably at least as determinative of outcomes as are the formal laws, since they supply the background against which the latter are interpreted and applied. Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 50 (3d ed. 2017).[/footnote] At worst, these dominant discourses reflect a white heteronormative subjectivity and reproduce structural racism.[footnote]Kimberlé Williams Crenshaw, Foreword: Toward a Race-Conscious Pedagogy in Legal Education, 11 Nat’l Black L.J. 1, 3 (1988) [hereinafter Crenshaw, Race-Conscious Pedagogy] (describing how “what is understood as objective or neutral is often the embodiment of a white middle-class world view”).[/footnote] Indeed, because of an enduring fiction that interpreting the law is an objective, impartial, and politically neutral act, racial politics and power imbalances can remain hidden in judicial opinions and legal scholarship, lurking behind the technicalities and legalese of law.[footnote]See E. Tendayi Achiume & Devon W. Carbado, Critical Race Theory Meets Third World Approaches to International Law, 67 UCLA L. Rev. 1462, 1476–84 (2021) (discussing how the “colorblindness” of legal opinions obfuscates the racial dimensions of U.S. and international law).[/footnote] As I will explain further in this Piece, this is particularly true in the realm of criminal law.[footnote]See Alice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev. 1631, 1635–36 (2020) (arguing that the supposed neutrality of criminal law contributes to mass incarceration); see also infra section IV.A.[/footnote] PLS seeks to disrupt law’s flawed construction by elevating critical lived experience that contradicts the dominant narratives that lay beneath laws.[footnote]Cf. Delgado, supra note 8, at 2413–15 (noting that “Derrick Bell, Bruno Bettelheim, and others show[] [that] stories can shatter complacency and challenge the status quo” by providing counternarratives and disrupting mindsets).[/footnote] In lifting up these critical stories, PLS seeks to pull out common threads shared by those who bear the consequences of law in order to expose where the law might be missing its mark and in need of upending. Often these common experiences fuel movements, which act as vehicles to alter how society understands the functionality and inevitabilities of law.[footnote]See, e.g., Daniel Farbman, Resistance Lawyering, 107 Calif. L. Rev. 1877, 1881–82 (2019) (describing how abolitionist lawyers used the court cases of alleged fugitive enslaved people that arose under the Fugitive Slave Law of 1850 as an opportunity to wage “a vigorous rhetorical proxy battle against slavery”); Guinier & Torres, supra note 14, at 2756–59 (describing how social movements start as local sources of power that challenge the dominant understanding of law by providing alternative narratives); Matsuda, supra note 35, at 362–73 (documenting how Native Hawaiian and Japanese American claims for redress helped to shape emerging norms and a legal theory of reparations generated from the bottom).[/footnote] Accordingly, attention to episteme produced by movements is often a core component of PLS methodology. One of the primary goals of PLS is to expose counternarratives to the law, thereby creating spaces for social and legal change. By design, PLS also reminds us of the humanity behind the law, acting as a moral check and balance to the law. Building from the tradition of Critical Race Studies and an emerging body of Movement Law scholarship, PLS thus aims to press the boundaries of what legal scholarship traditionally looks like by evoking lived experience as evidence and developing legal meaning alongside social movements.[footnote]Amna A. Akbar, Sameer M. Ashar, and Jocelyn Simonson explain that: In this Article, we identi[f]y a methodology for working alongside social movements within scholarly work. We argue that legal scholars should take seriously the epistemological universe of today’s left social movements, their imaginations, experiments, tactics, and strategies for legal and social change. We call this methodology movement law . Movement law is not the study of social movements; rather, it is investigation and analysis with social movements. Social movements are the partners of movement law scholars rather than their subject. Akbar et al., supra note 13, at 825. Similarly, Critical Race Theory (CRT) often employs “legal storytelling” to offer “counter-accounts of social reality by subversive and subaltern elements of the reigning order.” Kimberlé Crenshaw, Introduction, in Critical Race Theory: The Key Writings that Formed the Movement, at xiii, xiii (Kimberlé Crenshaw, Neil Gotanda, Gary Peller & Kendall Thomas eds., 3d ed. 1995) [hereinafter CRT Key Writings]; see also Delgado & Stefancic, supra note 36, at 77–78 (arguing that the racial narratives behind civil rights–era workplace discrimination statutes limit their applicability); Delgado, supra note 8, at 2437–38 (arguing that outgroups tell stories and “[b]y becoming acquainted with the facts of their own historic oppression—with the violence, murder, deceit, co-optation, and connivance that have caused their desperate estate—members of outgroups gain healing”).[/footnote] This Piece, the first of several in a series that will grapple with the participatory epistemology and methods needed to democratize the law, is written from my perspective as a legal academic partner in PLS. Part I situates PLS as part of a broader cross-disciplinary Participatory Action Research (PAR) movement to reposition subjects of research as partners in research. In doing so, it explores how participatory methods could inform legal scholarship but also identifies where PLS diverges from other forms of PAR. Specifically, unlike some forms of PAR, PLS’s central purpose is not to work with those affected by the subject of the research to collect information in their community using traditional research methods like focus groups or interviews. Instead, through a collaborative process, the goal of PLS is to generate legal theory grounded by the analysis of those with lived experience in law’s injustice, along with technical and research support from legal scholars. In line with Freire’s emancipatory pedagogy, which centers the marginalized as those most equipped to liberate themselves from oppression,[footnote]See Freire, Pedagogy of the Oppressed, supra note 31, at 44–45.[/footnote] PLS posits that true liberation cannot occur unless any reimagination of the law or legal systems involves analyzing the law along with those marginalized by it through praxis—a process of action and reflection. Part II sets out the theoretical underpinnings of PLS. First, grounded in Freire’s relational understanding of knowledge production, this Part articulates an alternative theory of knowledge, based on the belief that we arrive at truth collectively, not singularly. Drawing from this collaborative theory of knowledge, I contend that partnering in legal scholarship with organic jurists who have expertise in law’s injustice can help us see the “truth” of the law more clearly. Second, drawing from Robert Cover’s pluralistic conception of the making of legal meaning,[footnote]See Robert M. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 13 n.36 (1983) (describing how the process of making legal meaning is always dependent on cultural norms and thus inherently pluralistic since cultural norms differ across groups).[/footnote] this Part continues by setting out the legal theory for PLS. Like Cover, PLS takes as its starting point the conviction that the law has multiple meanings and that its interpretation necessarily depends on the worldview of its translator.[footnote]Id. at 11 (arguing that “the creation of legal meaning—‘ jurisgenesis ’—takes place always through an essentially cultural medium”).[/footnote] This Part contends that PLS enhances the formation and contestation of law by lifting up critical stories that counter the dominant discourses, which inform the law and its interpretation, sometimes expressly, other times covertly. By exposing and challenging these narratives, Part II describes how PLS can act as a check on arbitrary state power and violence. It further envisions legal scholarship, if participatory methods are employed, as one site where new legal worlds can be imagined. Part III then turns to PLS’s praxis —which Freire defines as “reflection and action upon the world in order to transform it”[footnote]Freire, Pedagogy of the Oppressed, supra note 31, at 51.[/footnote]—describing PLS’s underlying ethos and methodology. Specifically, it describes how participatory methods are inherently relational in nature, explaining why forging PLS in trusting and solidaristic partnerships is the key to ensuring that it is nonexploitative. Part III also explores some of the features of the legal academy that might inhibit PLS from realizing its full potential and methods for overcoming them. To that end, it outlines the need for critical self-reflection by academic partners in PLS on how their positionality in academic institutions might limit their understanding of expertise and imaginative thinking and inform behaviors that propagate hierarchy. Finally, Part IV responds to critics who believe that scholars should commit themselves to pursuing “objectivity” in legal scholarship and thus denounce “scholactivism.”[footnote]See, e.g., Khaitan, On Scholactivism, supra note 28, at 548–49 (arguing that “scholactivism is inherently contrary to the ‘role morality’ of a scholar”).[/footnote] In essence, these scholars argue that pursuing real-world objectives through legal scholarship and doing so in collaboration with nonacademics, as I did in Redeeming Justice , compromises a scholar’s “special moral obligations” to “truth-seeking and knowledge dissemination.”[footnote]Id. at 548.[/footnote] This Part addresses those criticisms head on, exposing the risks of adopting a moral commitment to neutrality and objectivity in scholarship. Ultimately, however, this Piece is directed at others like me who “yearn to build research collaboratively and respectfully with communities outside the academy.”[footnote]Michelle Fine & María Elena Torre, Essentials of Critical Participatory Action Research 5 (2021) (“It is to graduate students and faculty that we share these considerations, commitments, and questions as a way to help you deepen inclusion and participation on your research teams and with those who participate in your studies . . . .”).[/footnote] It has been developed in conversation with my coauthors of Redeeming Justice , Rell and Ghani, yet it is not meant to supplant their voices or speak for them. Rather, it is undertaken as a vehicle to reflect on and be transparent about the commitments and epistemology that led me to be part of this enterprise.[footnote]It is an attempt to gain clarity on my own purpose akin to what Freire describes as meditation. See Freire, Pedagogy of the Oppressed, supra note 31, at 88 n.3 (describing “profound meditation [as] men . . . withdrawing from [the world] in order to consider it in its totality . . . [which] is only authentic when the meditator is ‘bathed’ in reality; not when the retreat signifies contempt for the world and flight from it, in a type of ‘historical schizophrenia’”).[/footnote] Principally, in this work, I explain why I believe that PLS is not just a legitimate form of scholarship but one that is urgently needed to address the fissures and fault lines that law, particularly criminal law, has created.

Critical Legal Studies

PARTICIPATORY LAW SCHOLARSHIP

THE NEW LEGAL CRITICISM