Legal Writing, the Remix

 

By Kim D. Chanbonpin

 A law professor’s job is to shepherd law students into the legal profession.  We do this by teaching legal doctrine and by engaging in class discussions formulated to get students “to think like lawyers.”  Law school promotes an acculturation process through which students are transformed from law novices into law experts by the time they graduate.

Students are subjected to this process in all of their classes, but the legal writing classroom is potentially the most formative.  Most first-year grades are based on a single final exam at the end of a semester.  In the legal writing classroom, by contrast, student performance is assessed at several points during the semester.  Also, students typically have more one-on-one time with their writing professors.  The legal writing classroom is therefore a critical training ground for our future lawyers. 

 Yet, many students fall victim to the acculturation process that law school imposes.   The relentless process of assimilation to which law students are encouraged to succumb often sacrifices the voices of law students who enter from outsider positions.  The audience for most first-year legal writing assignments consists of legal “insiders”–supervising attorneys or judges.  According to Professor Kathryn M. Stanchi, “[s]tatistically, white, upper-middle class, heterosexual men tend to be overrepresented in these positions.”  The students who do not fit this insider mold can feel isolated and alienated from their legal education. 

 Professor Charles Calleros has argued that “we sometimes can reduce student alienation by allowing different groups of students to take turns enjoying the status of ‘Insiders’ on a problem, rather than routinely relegating some students to the role of perpetual ‘outsider.’”  Using hip hop as a teaching tool can provide some outsider students with the opportunity to become insiders. 

 What do hip hop and legal writing have in common?  Both hip hop and legal writing rely on an archive of knowledge.  Both hip hop artists and lawyers borrow from their respective archives to build credibility and authority.  Yet, whether it is from musical recordings or case law, the borrower is drawing from a limited well.  This means that the past work of others will be frequently and even necessarily incorporated into new work.  The ethical and professional danger inherent in this type of production is that one who borrows too freely from the past may be merely copying instead of interpreting or innovating.  In law school, this is plagiarism.  Members of the hip hop community call this “biting.”  In neither culture is this mode of production celebrated.  By teaching hip hop as a comparative citation system, writing professors can facilitate a law student’s acculturation to an insider’s position in legal writing and also help students avoid the pitfalls of plagiarism. This approach offers an additional benefit for our millennial students whose worldview has been profoundly shaped by popular culture.  Grounding a lesson in a familiar cultural product such as hip hop music can facilitate class discussions about legal citation, making a dry and tedious topic more interesting and accessible.

 Much hip hop music is produced by borrowing from prior works.  The custom of borrowing, as in the use of samples, is not completely unrestricted, however.  Hip hop maintains an internal system of regulation, guided by the principle of “no biting.”  In hip hop, “biting” another artist’s lyrics, beats, or even all-around style is a mortal sin.  Copying someone else’s technique or unique sound is understood as a crime of theft.  Hip hop culture encourages artists to break new ground by building on the traditions that have come before.  The only exception is the “no biting” rule.  Regulating agents–other artists and fans within the hip hop community–are empowered by their participation in the culture to call out “biters” whose work oversteps the line of reference into copying.  But, if the artist consciously invokes the work of another in hip hop’s past, she proves herself to be an innovator and a native intellectual in hip hop culture.

  Hip hop is seemingly obsessed with authenticity.  Songs constantly reference the origins of hip hop.  In his song, “Old School,” for example, 2Pac paid tribute to the New York artists who pioneered hip hop. Tellingly, the song contained a sample of a 1990 song by Brand Nubian, where Grand Puba raps: “What more can I say?  I wouldn’t be here today if the Old School didn’t pave the way.” In law, a similar reverence for origins and foundational work appears in the judicial opinions of Justice Antonin Scalia and in the advocacy of the Federalist Society.

  Counter-intuitively, nostalgia as an authenticating device in hip hop drives rather than stunts the artist’s impulse for originality.  A contemporary MC or DJ who quotes the old school is claiming their inheritance as creators of a well-established but ever-changing hip hop culture, and as a result, citations to prior works redound in the music.  This citation system is certainly distinct from, but also comparable to, the system of citation that lawyers use.  In hip hop, citation occurs at different moments and in different spaces.  Citations in song exist at two levels: (1) in the song itself, either explicitly as a verbal shout-out or implicitly as an invocation of the hip hop community’s collective knowledge; and (2) in the single or album’s liner notes. 

 Internal citations can be explicit, as for example in “Juicy,” when Biggie rhymes: “Remember Rappin’ Duke, duh-ha, duh-ha/ You never thought that hip hop would take it this far.” Here, Biggie references a 1984 Shawn Brown song as a personal claim to hip hop expertise.  This act of claiming serves two purposes.  In doing so, Biggie is at once (1) acknowledging his musical forebears (e.g., Brown) and also (2) proclaiming his status as an emerging talent on the hip hop music scene (“Now I’m in the limelight ‘cause I rhyme tight”). 

 This Biggie song also contains another type of internal citation: an implicit one that relies on the listener’s breadth of knowledge to establish the linkage between the current work and its progenitor.  The chorus in “Juicy” is a variation on the lyrics in the song “Juicy Fruit” by Mtume.  Biggie sampled a portion of “Juicy Fruit” in “Juicy” and it is the source of its infectious melody.  Hip hop fans would immediately recognize the implicit citations through Biggie’s quotations of the lyrics and the melody of the Mtume original.  In this instance, the listener’s depth and breadth of music knowledge works as an authenticating device.  A knowledgeable fan is experiencing the music at a more intimate level than the casual listener, and these references are a means for Biggie as the artist to qualify his fan as a true hip hop head.

Internal citations in hip hop, whether explicit or implicit, are dependent upon a mutual exchange of “insider knowledge” between artists and their fans.  Artists embed their music with cultural references that have a special meaning for hip hop insiders.  By searching for obscure and novel sources, the artist is able to maintain her own insider status.  Fans access insider status by recognizing and understanding those references within the context of the larger hip hop culture.  Hip hop fans are constantly adding to a deep repository of musical knowledge, even in anticipation of future songs.  For a fan, the reward for the effort required to build this knowledge base is the satisfaction of being “in the know.”

 Law students can become more proficient legal writers when they have engaged in a study comparing the cultural products of hip hop with the cultural products of the law.  Both hip hop and legal writing value an insider’s expert knowledge of the sources that comprise the basis for new work in the respective fields.  In hip hop, sources include beats and rhymes; in legal writing, a primary source is jurisdictional case law.  Both hip hop and legal writing utilize peculiar systems of citation to aid in a participant’s development towards expert, insider knowledge.  Both are at their best when they demonstrate the author’s depth of knowledge of the subject matter by showcasing the author’s skill at weaving existing sources with new, innovative ideas and arguments.  When a lawyer cites case law in a trial brief, for example, she is calling the reader’s attention to the existing legal authorities in support of her argument.  By using correct citation form, the lawyer is also subtly communicating to her audience that she is a credible legal “insider.” 

 As law professors we know that there are myriad paths to success in the legal profession.  We know that one size does not fit all, but not all of our students are empowered to appreciate this truth.  We, however, are privileged with the ability to create, open, and reveal alternative paths to gaining the expert, insider status valued in law practice.  Using hip hop to teach ethical legal writing is only one approach.  I hope that sharing this story will encourage other law teachers to continually experiment with creative ways to educate and inspire our students.

 

Photo courtesy of: http://ghostfaceknittah.blogspot.com/2010/12/i-never-thought-it-could-happen-this.html