Citing Slavery: The Long Tail of the “Peculiar Institution” in Case Citation

By Barbara Engstrom, Executive Director

A few months ago, I read an article about a Virginia case that made me do a double take – as in – wait, there’s no way this is an actual, real opinion.  The case centered around a dispute over frozen embryos of a divorced couple.  Generally, this type of issue is resolved during the division of marital property but because disposition of the embryos was not settled in the divorce, the judge evaluated whether the embryos could be considered “goods or chattel” and partitionable or subject to sale.  In a preliminary opinion, Judge Richard Gardiner of Fairfax County Circuit Court delved into the far reaches of Virginia’s property law of “goods and chattel” to determine that, while the current version of the statute presumes “goods or chattels found on real property,” an 1849 version of the code encompasses “division of slaves, goods, or chattels.” His analysis of the slavery statute led him to the following conclusion:

The two main differences between Code § 8.01-93 and § 6 of Title 34, Chapter 124 of the Code of 1849 are the following. First, the title of § 6 is “Partition of slaves or other chattels.” Second, the language includes “slaves” as partitionable in kind or subject to sale. As shown, infra, by 1849 slaves were partitionable in kind or subject to sale as they were considered personal property not annexed to the land. Thus, “goods or chattels” also would have been partitionable in kind as personal property not annexed to the land.[1]

One may assume that since slavery was abolished in 1865 with the passage of the 13^th Amendment, modern era court opinions do not rely on reasoning and precedent from slave statutes and cases. Michigan State Law Professor Justin Simard’s research shows, however, that Judge Gardiner’s opinion from March of this year is not as much of an aberration as one might think.

Researching Slave Citations

Professor Simard did extensive research on the most recent 35 years of case law and found that slave cases, which he defines as cases involving human property, are still commonly cited.  He notes that there is no signifying flag or other symbol on Westlaw or Lexis to alert researchers that a case involves enslaved persons. He found slave cases cited by thirty state jurisdictions, most of the federal circuit courts, and the U.S. Supreme Court.

He notes that as recently as 2015, Justice Thomas cited an 1848 Kentucky slave case, Gaines v. Gaines, as precedent for the proposition that the judiciary’s role is the “ascertainment of private rights and the redress of private wrongs.” As such, this proposition is not controversial and has been stated in many cases, causing one to wonder why a US Supreme Court Justice would choose to pull language from a case whose subject matter had been abrogated by the 13^th Amendment.   “Courts routinely cite these cases without acknowledging that they may no longer be, in a formal sense, good law. More importantly, courts rarely consider the ways in which a case’s slave context makes it less persuasive authority. For example, although most courts would agree that the judiciary is “the tribunal appointed by the Constitution and the law, for the ascertainment of private rights and the redress of private wrongs,” a case involving the judiciary’s regulation of the buying and selling of human beings is a poor reason to justify such legal authority.”[2]

Dangers of Citation Slave Cases Without Context

While citation to slave cases without acknowledging the context of the decision may not affect the proposition for which the case is being cited, in some instances historical context can undermine precedential authority.  Simard cites to several instances where courts pull legal support from slave cases for modern issues that, in fact, undermine or limit those suppositions when the full facts of the underlying slave cases are brought to bear.   For example, Simard discusses a 1999 Tennessee Court of Appeals case regarding liability for destruction of a tire shredding machine which cited an 1841 slave case for historical analysis of liability when negligent conduct results in damage to personal property.  The Court of Appeal’s cursory account of the 1841 case alluded to damage to plaintiff’s slave when attempting to elude defendants.  A full reading of the 1841 case reveals a horrific account of the terrorizing of the slave by the defendants and subsequent incompetent and inhumane treatment at the hands of a doctor.[3]  The full reading also demonstrates why using the concept of a slave as property is antithetical to applying a theory of damages for the destruction of a tire shredder.

Normalizing White Supremacy

Many of the slave cases were written by judges who benefitted from, and had an interest in, perpetuating slavery.  Citing to slave cases for modern precedent also carries the danger of normalizing white supremacy.

Judges who cite slave cases must pay more attention to the stories told by the judges on whom they rely. They must also recognize how their reliance on those stories affects the persuasiveness and legitimacy of the stories they tell in their own opinions. Slave cases provided crucial support for slave commerce. Every case that treated an enslaved person as property signaled legal approval of a slave society premised on white supremacy. Judges reinforced such approval through racist presumptions about the behavior of black people and demeaning descriptions of the enslaved. This language cannot be easily separated from a case’s holding because it helped justify the treatment of black people as property and their exclusion from the courtroom. White supremacy was a basic underlying presumption of every slave case. By citing such cases, contemporary judges treat the authors of slave cases as respected authorities, minimizing their support for white supremacy.[4]

The Long Tail of Slave Citation

In his research, Professor Simard found that about 80% of the slave cases he uncovered from the last 35 years did not mention the slave context of the case cited.  He found slave cases cited in string cites, parentheticals, footnotes, and block quotes. [5]  In addition to direct citation to slave cases, the nature of precedent means that one may be citing to slave cases without being aware. “I’ve done some analysis just with a sample of cases and concluded that 18% of all published American cases are within two steps of a slave case, so they either cite the slave case or cite a case that cites a slave case,” Simard tells NPR. “The influence is really, really extensive.”[6]

The Bluebook’s Response

One of the recommendations that Professor Simard makes in his article, Citing Slavery, is for the Bluebook to create a signal to indicate a case involves enslaved parties or slavery.  In response, the 2021 printing of the Bluebook now contains the following guidance:

Rule 10.7.1(d) now covers slave cases. For cases involving an enslaved person as a party, use the parenthetical “(enslaved party).” For cases involving an enslaved person as the subject of a property or other legal dispute but named as a party to the suit, use the parenthetical “(enslaved person at issue).” For other cases involving enslaved persons, use an adequately-descriptive parenthetical.

Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857) (enslaved party), superseded by constitutional amendment, U.S. Const. amend. XIV.

Wall v. Wall, 30 Miss. 91 (1855) (enslaved person at issue).

Why Are Slave Cases Still Cited?

Because there is no clear flagging of slave cases in Westlaw and Lexis, some slave cases may be cited without understanding the underlying subject matter of the case.  In other cases, attorneys or judges may assume that they can distinguish the “good parts” from the “bad parts” and still use the underlying legal principles without the taint of slavery. [7]  While those are less intentional uses of slave cases, some judges, like the judge from the frozen embryo case at the beginning of the article are deliberately using slave cases for historical analysis of legal principles. As Professor Simard notes, “Using the citation of slave cases to teach a lesson in the history of legal doctrine illustrates the legal system’s interest in one kind of history, namely that of the development of legal rules, while neglecting another, the experience of the people who served as the stuff out of which these legal rules were constructed. Rather than drawing attention to the plight of the enslaved, in these cases courts obscure it.”[8]

Learn More: FREE CLE featuring  Professor Simard

I encourage all of you to read Professor Simard’s article “Citing Slavery” in the Stanford Law Review and to watch a free CLE hosted by the King County Law where  Professor Simard discusses his article and continuing research with the Citing Slavery Project.  To view the CLE go to KCLL’s CLE and Events calendar at https://kcll.org/events/

For questions or further information contact the law library at services@kcll.org.

[1] See Opinion Letter, Honelyhline Heidemann v. Jason Heidemann, CL- 2021-0015372, Nineteenth Judicial Circuit of Virginia (Feb 8, 2023) https://abovethelaw.com/uploads/2023/03/Slavery-Opinion.pdf ; See also https://www.pbs.org/newshour/nation/virginia-judge-rules-human-embryos-are-chattel-based-on-centuries-old-slave-laws; https://www.nytimes.com/2023/03/16/us/virginia-slave-laws-embryos.html

[2] See Justin Simard, Citing Slavery, 72 Stan. L. Rev. 79, 82 (2020)

[3] Id at 103-105

[4] Id at 112

[5] Id at 97-98

[6] Rachel Treisman, Slave Cases Are Still Cited as Good Law Across the U.S.  This Team Aims to Change That (NPR June 14, 2023) https://www.npr.org/2023/06/14/1181834798/slave-cases-precedent-us-legal-system

[7] See Justin Simard, Citing Slavery, 72 Stan. L. Rev. 79,109 (2020)

[8] Id at 110

Hello, My Name is: TOD – Getting to Know Transfer on Death Deeds

By Barbara Engstrom, Executive Director

I often think of Transfer on Death (TOD) deeds as a new estate planning tool in Washington, but they’ve actually been around for almost a decade.  That said, it seems like TOD deeds are still flying under the radar for a lot of attorneys.  In this column, I chat with Stephen Seely, Director of the Pierce County Law Library, about all things TOD.  When Stephen was the KCLL Outreach Services Attorney, he created an excellent self-help Transfer on Death deed packet.  The packet is available for purchase in the law library or via our website.

Stephen, can you explain what the Transfer on Death deed (TOD) is?

In 2014, the Legislature passed the statute that created the transfer on death deed (RCW 64.80). The Transfer on Death Deed is a type of time-delay deed that is recorded but doesn’t take effect until the person who currently owns the property dies. At that point the beneficiary listed on the deed can claim ownership of the property.

What are the basic statutory requirements of TOD deeds?

The basic requirements are laid out in RCW 64.80.060. There are three major requirements:

• the deed must have the same essential elements and formalities as the more traditional deeds that we’re familiar with (those requirements are in RCW 64.04)
• the deed must say that the transfer occurs at the transferor’s death
• the deed must be recorded in the Recorder’s Office/Auditor’s Office of the county where the property is located.

Can married couples or joint owners use a single TOD deed to transfer property?

The law allows a married couple or joint owners to use a single TOD deed to transfer the property all in one go. However, it may not be the wisest course of action because it makes revoking the TOD deed more complicated. Attempting to revoke the TOD deed will require all the living transferors listed on the deed to revoke it. In short: if they jointly giveth, they must jointly taketh away.

How do you revoke a TOD deed?

RCW 64.80.080 covers how to revoke a TOD deed. There are three separate methods. The transferor(s) will need to:

• record an “instrument” (a.k.a, a document) that expressly revokes the TOD deed, or
• record another TOD deed that expressly revokes or is inconsistent with the first TOD deed, or
• record another type of deed that expressly revokes the TOD deed

Which takes priority if a will’s provisions conflict with a TOD deed?

If there is conflict between a will and the TOD deed, the TOD deed wins. RCW 11.02.005(13) identifies a TOD deed as a nonprobate asset. That status as a nonprobate asset allows the ownership of the property to transfer automatically to the beneficiary listed on the TOD deed, outside of probate, and independently of the will.

How do the beneficiaries claim property that was transferred using a TOD?

The beneficiary automatically gets ownership when the transferor dies but there are a few steps they will need to complete to “perfect” their ownership. This is done by recording a certified copy of the transferor’s death certificate and a Real Estate Excise Tax Affidavit in the Recorder’s Office/Auditor’s Office in the county where the property is located. This satisfies the requirements of WAC 458-61A-202(6)(d) and WAC 458-61A-303(2)(m).

What are the downsides of using a TOD deed to transfer property?  Are there situations where TOD deeds should be avoided?

One of the big downsides is that no notice is required to be given to the beneficiary, so it’s possible to leave the beneficiary a property with a lot of issues and the beneficiary ends up with that lemon of property unless they know to disclaim the property and do it fairly quickly (usually within 9 months after the death). The disclaiming process is covered in RCW 64.80.110.

Another issue is that the beneficiary will become liable for any probate estate claims or surviving spouse/surviving child allowance claims. This is covered in RCW 64.80.120.

If real property was transferred using a TOD deed and the rest of the estate is under $100,000 can a small estate affidavit be used to avoid probate to settle the remainder of the estate?

As with all things in the law, it depends. If there is no other real property in the estate, then I’m inclined to say yes. However, there is always the possibility that a beneficiary disclaims the property, and the property would remain part of the transferor’s estate; this would make the estate ineligible for the small estate affidavit process.

Now that TOD deeds have been in effect for almost a decade in Washington, what, if any, issues are coming up in case law?

It’s been quiet on the case law front. Because the wait between the recording of the TOD deed and the transfer of the property can be a literal lifetime, it may take another decade or two for litigation-worthy issues to crop up.

Want to Learn More?

If you would like to learn more about Transfer on Death deeds or find out how to purchase Stephen’s wonderful TOD packet, visit the law library at www.kcll.org or contact us via services@kcll.org.

Thanks for helping us get to know TOD, Stephen!

All the World’s A Stage

By Barbara Engstrom, Executive Director

The other day when I was searching the KCLL catalog for something totally unrelated, the title Acting Skill for Lawyers popped up.  I envisioned advice on how to chew the scenery with “Law and Order” level aplomb, did a big eyeroll, returned to my research, and moved on.   Later in the week while giving a presentation on resources available for remote access through our Lexis Digital eBook subscription, I remarked that resources ranged from the full run of gold standard treatises like Corbin on Contracts to lots of “fun” titles such as… (naming the first title that popped into my head) Acting Skills for Lawyers. Dang it.  That title had infiltrated my psyche.

Hmmmm…what’s the literary equivalent of a musical earworm?  A bookworm?  I think that word’s taken but wouldn’t you know, the New York Times featured a whole discourse on whether a word can be the equivalent of an earworm.  In that case, the word was amygdala.[1]

Beware of Acting Natural

My interest peaked, I had to at least take a look at Acting Skills for Lawyers. Much to my delight the book was a quick read full of practical advice specifically geared to how attorneys present themselves in the professional arena (not just court). For example, in discussing stage presence the author notes:

Stage presence is the quality that allows us to hold a very public position in a relaxed manner. …For attorneys, the scrutiny is much more intense. Actors will have a director and the cameraman right in their face, but you will have everyone—the jury, witnesses, opposing council, your client, and your colleagues—staring you down and watching your every move. Stage presence allows us to remain ourselves under intense scrutiny from others.

The goal of stage presence is to be yourself—just a more relaxed, interesting, and focused you. Once you are free to be yourself, you are more relaxed and will carry less tension in your voice and body. Once the tension is gone, you are free to respond naturally to what is actually happening, using integrity and finely tuned reflexes.[2]

People are often advised to “act natural” but in a high-pressure professional setting, acting natural might mean breaking out into a sweat, stammering, stiffening up, or staring at the floor – all natural responses to stressful situations.   Just as athletes train for big competitions to prepare for whatever comes their way, training for stage presence allows attorneys to navigate unexpected twists and turns in a variety of professional settings.

Be Like (the Other) Mike

In this case, I’m not talking about Michael Jordan but rather Michael Phelps – the guy with 23 Olympic gold medals in swimming. I remember the discussions during the Beijing Olympics about whether Michael had a freakishly portioned body that gave him physical advantage over other swimmers. A study by Scientific American concluded that while Phelps has slightly longer arms, he’s well within the standard range for persons of his size.[3]  His dominance was bred of his outsized work ethic and willingness to train not only for things going right but to prepare for when things would inevitably go wrong.  Phelps and his coach focused on conditioning himself to push through and maintain perfect form like a mechanical geartrain even when at the breaking point.

Early in the Games, one of those things that could happen did happen. In the 200-meter butterfly, Phelps’s goggles leaked. They flooded with water until he couldn’t see the wall. He stayed calm, relied on his rhythm, and won pulling away, though with bloodshot eyes. “I was ready for my goggles to fill up with water,” he said later, gratefully.[4]

Phelps’s Beijing Olympics, with seventeen races over nine days, culminated in him winning eight gold medals — breaking Mark Spitz’s 1972 record. In his last individual race, with a fatigue-wracked body Phelps won by one-one hundredth of a second which his coach attributed to a conditioned response based on years of preparation.  Interestingly both Acting Skills for Lawyers and the Washington Post article on Michael Phelps both referenced a Soviet area study on optimal athletic conditioning. A central tenet of the study is that an athlete’s optimal readiness requires “harmonious unity” of physical, psychic, technical, and tactical skills.[5] Athletic grace under pressure and professional stage presence are not innate gifts that only the lucky few have.  They are skills that seem effortless but have been cultivated with hard work over time.

Tools of the Trade

The central thesis of Acting Skills for Lawyers is that stage presence is a major benefit for attorneys in all practice areas.  It is achievable by anyone, including introverts, but requires work.  Each of the chapters presents actors’ tools of the trade within the framework of legal practice.  The author discusses tips and tricks for a variety of basic acting skills with practical exercises for each tactic. For example, in the section on speaking styles she discusses how to hold an audience’s attention with techniques such as rate of speech, inflection, pauses, and volume.  In the chapter on your physical presence, she outlines how what you do with your body when talking to colleagues, opposing counsel, or juries can either enhance or undercut what you are saying.  She also gives practical tips on conducting depositions, being an effective improvisor, using storytelling to craft compelling narratives, preparing witnesses, and delivering closing arguments.   She even tells you how to take a great head shot – hint – the “eyes are the secret weapon.”

Why Acting for Lawyers?

As I was looking at articles discussing acting skills for attorneys the following quote from Michael DeBlis, a trial lawyer who is a graduate from a prestigious acting conservatory, struck me as an apt argument for why attorneys should consider enhancing their professional toolbox with acting skills.

The ability to perform at a peak level night in and night out is a trait that great actors and great lawyers possess, and one that I deeply admire. To me, having a technique provides me with the artistic freedom to stand in front of the jury and build something that bears my imprint just like an artist stands in front of a blank canvass and creates an original painting. The only difference is that my tools are not a canvas, palette, paints, and brushes. Instead, they are my words. Nevertheless, my words are used to paint images in the minds of the jury in the same way that an artist breaks the whiteness of the canvas with a stroke of the brush not worrying so much if it is what he’s really after but instead discovering the painting in the act of painting itself.

While “Acting for Lawyers” might sound like a theater genre, in reality it is designed to loosen up attorneys and prepare them for the practical uses of confident and effective communication in the courtroom, something that is severely lacking in courtrooms around the country today.[6]

Learn More at KCLL

I encourage you to check out Acting for Lawyers in our Lexis Digital eBook database.  Along that same vein, you may also be interested in the following titles:

• Jonathan Shapiro, Lawyers, Liars, and the Art of Storytelling: Using Stories to Advocate, Influence, and Persuade
• John S. Worden, From the Trenches: Strategies and Tips From 21 of the Nation’s Top Trial Lawyers
• Frederic Block, Crimes and Punishments: Entering the Mind of a Sentencing Judge

If you would like help accessing these titles or any other titles in our collection, please contact us at services@kcll.org.  Information on becoming a subscriber with remote access to the Lexis Digital eBook collection and many other benefits can be found here. https://kcll.org/subscribe/

[1] See James Gorman, Ob-La-Di, Ob-La-Da, Amygdala: Word as Earworm, (Jan 11, 2005) https://www.nytimes.com/2005/01/11/health/obladi-oblada-amygdala-word-as-earworm.html

[2] See Laura Mathis, Acting Skills for Lawyers, pg 29-30 (ABA Publishing 2012)

[3] See Adam Hadhazy, What Makes Michael Phelps So Good?, Scientific American (August 18, 2008) https://www.scientificamerican.com/article/what-makes-michael-phelps-so-good1/

[4] See Sally Jenkins, How Michael Phelps Learned to Make the Right Calls, Washington Post (May 28, 2023) https://www.washingtonpost.com/sports/2023/05/28/sally-jenkins-book-excerpt-michael-phelps/

[5] See Leo Pavlovic Matveyev, Fundamentals of Sports Training (Progress Publishers Moscow, 1981)

[6] Michael DeBlis, Why Acting for Lawyers?, Medium (Oct 22, 2017) https://mjdeblis.medium.com/why-acting-for-lawyers-1d668dbc7369

Mens Sana in Corpore Sano

By Barbara Engstrom, Executive Director

While getting on my bike to ride to work in the cold rain and dark during Seattle winters can seem like torture, it is usually the best part of my day.  I often have “Ah ha!” moments during my ride where I can resolve issues that seemed intractable day before.  The connection between the mind and body is an idea as old as the ancients. Roman poet Juvenal wrote orandum es tut sit mens sana in corpore sana – you should pray for a healthy mind in a healthy body.

The practice of law is already a time consuming and stressful profession.  Adding daily exercise may feel like another burden loaded on to an already too full plate.  With that in mind, here are some suggestions for adding wellness activities to your daily routine in a low impact way.

No Time to Exercise?  What About 7 Minutes?

When I’m travelling and my schedule is too full for my normal exercise routine, my go-to option is the original “Scientific 7-Minute Workout” popularized a decade ago by the New York Times.  “In 12 exercises deploying only body weight, a chair and a wall, it fulfills the latest mandates for high-intensity effort, which essentially combines a long run and a visit to the weight room into about seven minutes of steady discomfort — all of it based on science.”[1]  I’ll admit I was skeptical of the 7-minute workout before I tried it, but when done correctly, the intensity of the exercises leaves you feeling like you completed a much longer workout.

The term of art for these short duration workouts is High Intensity Interval Training (HIIT).  Researchers have found that HIIT workouts can improve overall cardiovascular fitness and muscle strength with less soreness than longer workouts.  In a study with obese participants insulin resistance was improved.[2]

Once you master the original 7-minute workout you can move on to the Standing 7-Minute Workout and even graduate to the Advanced 7-Minute Workout.  Don’t have 7 minutes to spare?  What about 4 minutes? The 4-Minute Workout is a very short, intense burst of activity such as running, biking, or swimming.  If you search for HIIT workouts you’ll find programs catering to any demographic including older adults, pregnant people, and overweight folks.

Computer Sloucher Pain Relief? Try Spinal Flossing

Many of us experience pain from slouching in front of a computer for hours on end.  Between bad office ergonomics and ignoring discomfort to forge on with work, this pain can become chronic especially for our spines.  Studies have shown that extensive sitting can be as bad for you as obesity or smoking.[3] Physical therapist Vinh Pham created a 15-minute daily routine to “future proof your body against chronic pain.”[4] Pham’s exercises target the most common pain points for computer slouchers — our necks, shoulders, spines, and lower backs and focus on preventative steps to avoid long term problems.

Pham equates good spinal health with good dental health.  Many people take a reactive approach to back pain.  Ignoring the pain until it becomes so acute that they feel the only option is surgery.  He wants people to think of spinal health like they would dental health. Just as we brush and floss daily to maintain good dental health, we need to take 15 minutes a day to maintain spinal health.    He even has an exercise called spinal flossing.   Check out Pham’s spinal flossing exercise and several others including one to prevent plantar fasciitis.

Take a Deep Breath to Lower Blood Pressure

You probably never give a thought to breathing, but respiratory muscles and how we breathe also have significant impacts on our physical and mental well-being.  Just like any other muscle group, our respiratory muscles can become less productive over time.  This is problematic because breath is essential not only to our ability to exercise effectively but also impacts weight, allergies, mood, stress levels, and cognitive performance.  As James Nestor, author of “Breath: The New Science of a Lost Art” says “You can’t be truly healthy unless you’re breathing correctly”[5] These nine exercises can help. 

What’s more, a five minute daily breathing routine can help lower blood pressure.  A study out of the University of Colorado, Boulder showed “Working out just five minutes daily via a practice described as “strength training for your breathing muscles” lowers blood pressure and improves some measures of vascular health as well as, or even more than, aerobic exercise or medication”[6]  The CU Boulder study had subjects do daily High-Resistance Inspiratory Muscle Strength Training (IMST) using a resistance-breathing training device called PowerBreathe.  The results were similar to what blood pressure medication would produce.  The study indicated that the breathing routine may also be a preventative measure for high blood pressure.[7]

In good news for post-menopausal women, the IMST routine improved cardiovascular health for women not taking supplemental estrogen. [8]

Sleep to Be a Better Lawyer

Pulling all-nighters and always being on-the-clock has traditionally been a badge of honor for the legal profession. But rather than leading to better outcomes, sleep deprivation can undermine a lawyer’s ability to function effectively.  According to the National Heart, Lung, and Blood Institute, “not getting enough sleep can cause trouble with learning and focusing, making decisions, and solving problems, as well as accurately judging other people’s emotions and reactions. Sleep deficiency can take an emotional toll, resulting in irritability, frustration, difficulty controlling your emotions and behavior, and coping with change. It may take longer to complete tasks, or to complete them accurately.”[9] Chronic sleep deprivation increases anxiety, stress, and blood pressure levels and can contribute to serious health outcomes like diabetes, heart disease, and depression.

The Path to the Land of Nod

·         Set up a consistent sleep schedule even on weekends

·         Get regular exercise and eat meals on a regular schedule (Don’t exercise or eat too close to bedtime)

·         Avoid caffeine after 3pm and alcohol before bed

·         Turn off screens an hour before bedtime

·         Use deep breathing, meditation, or visualization to decompress and clear your mind before bed

Simply put, the secret to good sleep is to develop routines and stick with them. But don’t beat yourself up if you get off track.  Consider napping.  According to WebMD “A short nap in the mid-afternoon can boost memory, improve job performance, lift your mood, make you more alert, and ease stress.”

Let the Law Library Help 

Check out Yoga for Lawyers: Mind-Body Techniques to Feel Better All the Time or A Lawyer’s Guide to the Alexander Technique: Using Your Mind-Body Connection to Handle Stress, Alleviate Pain, and Improve Performance from our Lexis Digital eBook collection.   Let us help you take a load off your plate with our paid research services. Visit our website at www.kcll.org or email us at services@kcll.org to find out more about available resources to ease your work burden so you can focus on achieving a sound mind and sound body.

AI Generated Art: A Pixel is Worth a Thousand Lawsuits

By Barbara Engstrom, Executive Director

During the height of the pandemic and the insanity of the 2020 election I sought out things that were peaceful and calming.  One of usual my moments of Zen was looking at my friend Ward’s YouTube channel where he posts a short clip of himself doing a “fast and loose” painting each day.  It is very meditative to see the process of him turning a photograph into a painting.  The paintings soften the edges of the photographs, but at the same time make bring the subject matter to life.

Recently I read an article [1] about how AI art generators such as Stable Diffusion and MidJourney  are impacting artists’ ability to make a living.  For artists who are sought after, AI generators can simply use that person’s name and create an image “in the style of” that artist.  The article recounted the experience of Greg Rutkowski.  His art features detailed, moody medieval scenes with dragons and other magical elements and is popular with fantasy fiction authors for book covers.  AI art generators train on vast datasets of art from a wide variety of online places.  As AI learns artists’ styles, a person’s name such as Greg Rutkowski can be used as shorthand to create artwork that is eerily imitative of his style.

“These databases were built without any consent, any permission from artists,” Mr. Rutkowski said.

Since the generators came out, Mr. Rutkowski said he has received far fewer requests from first-time authors who need covers for their fantasy novels. Meanwhile, Stability AI, the company behind Stable Diffusion, recently raised $101 million from investors and is now valued at over $1 billion. [2]

Posting artwork online is now a double-edged sword for artists like Greg Rutkowski.  He needs to post his images in order to market his work but in doing so, he is providing more information for the A.I. art generator juggernaut to profit off his style and cut him out of the loop.

A University of Chicago computer science professor and his team of researchers are studying ways to help artists protect their work and business model.  Professor Ben Zhao spear-headed a project called Glaze which allows artists to use a cloaking system that adds “almost imperceptible “perturbations” to each artwork it’s applied to — changes that are designed to interfere with AI models’ ability to read data on artistic style — and make it harder for generative AI technology to mimic the style of the artwork and its artist. Instead, systems are tricked into outputting other public styles far removed from the original artwork.”[3]  Professor Zhao’s Glaze Project website allows users to download the free Glaze app to add cloaking to individual works of art.  https://glaze.cs.uchicago.edu/

Reading about this got me thinking about my friend Ward Spring and the calming presence of his online art displays. Selfishly, I hoped that he wasn’t considering taking down his videos.  I reached out to Ward to hear his take on theft of style by AI art generators and projects like Glaze which are trying to help protect artists.  Ward’s view is interesting because he has a foot in both worlds.  He does his daily painting posts, but his day job is in computer coding.  Here’s a bit of what he had to say:

BE: When did you start painting?

WS: As a young kid I always had this image of myself painting as an old man, but I hadn’t really tried. My father had painted his whole life as a hobbyist. In 2020, when he was 88 years old, he was diagnosed with pulmonary fibrosis, a terminal disease. I live in Seattle and he was in Idaho. With the pandemic shutdown we decided to paint together using video calls. Dad sent me his painting supplies and we started painting through video calls every morning at 7AM. My home studio has several web-cams so we could see each other and he could see what I was doing. I would paint and he would coach. As his illness progressed, he grew weaker but insisted on doing our daily video calls. We painted nearly every day from August 2020 through September 2021 when he grew too weak to go on. He passed October 13, 2021. I have kept painting “almost daily” in his memory and because it’s so much fun.

BE: Why did you decide to post your work online? 

WS: I decided to upload my art to Twitter to have a record of my progress in an easy to share system. I started uploading the videos to YouTube since I had them from the video calls. If you watch some of the early ones you’ll see my dad. It’s now such a habit I’ll keep doing it. I do go back and watch videos of paintings that turned out better, or in a direction I want to develop. So, these online efforts are really cheap ways for me to store my stuff for myself. I have also ended up making friends with people from other countries because of these social networks.

BE: As you note, your paintings are available on both YouTube and Twitter.  Do either of those platforms have any system to help you protect your copyright in your artwork?  

WS: LOL, not that I know of. I accept my work isn’t worth stealing, so I am not worried. I’d find someone stealing my work as evidence I’m getting better.

BE: Ah, you sell yourself short.  I find your videos/ paintings joyful to see/watch. I noticed that there are no still image files on either YouTube account.  Was this a deliberate choice?  Does having only video images of your work make it more difficult for other people or bots to capture your work?

WS: I have medium resolution stills on Twitter. Seriously, I haven’t thought of anyone stealing my art. If something I created ended up getting famous because someone used it, I’d consider that a win.

BE: What are your thoughts on AI generated art?  As an artist, does knowing that there may be other people monetizing your creative work make you reconsider posting your work on-line? 

WS: I have only looked at a few AI art pieces and AI generated art videos online. At first, I was jealous at how bizarre AI art was, wishing I could do stuff like that myself. But now I have come full circle and think I’ll stick to using my eyes and hands, and Dad’s art supplies, to see what I can create myself. I can’t imagine ever making much money from my art, which is very liberating. I can do whatever I want without the pressure of “being good”. I paint for myself.

BE: Do you just assume that your work has been uploaded into AI art generator data sets?  Is there any way that you can know for sure?

WS: I haven’t thought about my art being sampled or used by anyone else. If someone does, I would love to see the result.

BE: Have you heard of the Glaze Project https://glaze.cs.uchicago.edu/?  It’s a research project out of the University of Chicago that is meant to help prevent AI from mimicking an artist’s style.  Would you ever consider using a tool like that? 

WS: I haven’t heard of the Glaze Project. I’m so new to painting (I’ve done about 800 pieces so far) I haven’t developed a style that I am aware of. To be honest, I would be interested in seeing AI art done in my style.

BE: What questions do you have about the legal implications of AI generated art?

WS: Modern musicians sample other people’s songs all the time. We all can pick out these sound samples as we hear them. Visual art is also “sampled”. Whenever someone creates a new visual piece, even without actually digitally sampling, folks inevitably say they see Picasso, Wyeth, Watterson, Groening, etc. Will there be court cases now with jurors looking at AI art pieces and deciding if this piece is too much like that piece? The brush strokes are too “Van Gogh”? It seems farfetched now but if millions of dollars are at stake it may happen.

BE: Any final thoughts?

WS: I, for one, welcome our new AI overlords.

BE: You’re always funny Ward, thanks for giving your thoughts!

As with many issues involving rapidly changing technology, the law has not caught up with the real-world implications of AI generated art.  There are already a raft of lawsuits on these issues and surely many more to come on questions such as: Are A.I. art generators violating the artists copyrights?  Is the “style” of an artist something that can be copyrighted?  Are works that are generated by A.I. eligible for copyright protection?

Want to Learn More About Our How the Law Treats Our New AI Overlords? 

If you’d like to research the intersections of artificial intelligence and intellectual property visit our website at www.kcll.org or email us at services@kcll.org to find out more about available resources at the King County Law Library.

And please visit www.wardspring.com to find your own moment of Zen.

[1] See Kashmir Hill, This Tool Could Protect Artist from A.I. Generated Art That Steals Their Style, New York Times (Feb 13, 2023)

[2] Id

[3] See, Natasha Lomas, Glaze Protects Art from Prying AIs, Tech Crunch (March 17, 2023)

Packets for the People (Including Attorneys)

By Barbara Engstrom, Executive Director

Prior to the pandemic, the law library hosted three in-person legal clinics per week.  While there were sometimes long lines for the walk-in clinics and perhaps a wait time of a week or two for the clinics that required appointments, generally pro-ses could get timely assistance at one of our clinics or at another clinics hosted elsewhere in King County.   As with most things, the pandemic curtailed in-person clinics and getting assistance via telephone clinics has become significantly harder.

For county law libraries and legal aid providers, one of the best workarounds for the lack of in-person legal clinics are the form packets available from the King County Law Library, Washington Law Help, and various legal aid organizations.  Although packet formats tend to vary by the organization producing them, they generally contain easy to follow instructions written with non-attorneys in mind, and include the required forms for whatever action the person is pursuing.  In this article we’ll take a quick tour of the self-help packets available at KCLL and Washington Law Help.  While most of the packets are geared to pro ses, the King County Law Library has several packets that attorneys regularly pick up and find quite useful.

King County Law Library

For Self-Represented Litigants (SRLs)

The law library has a very robust collection of civil litigation packets that spun off from our award winning Self-Represented Litigant Workshop series.  In the SRL series we cover the basics of civil litigation presented in the framework of the associated court rules.  There is a basic civil lawsuit class followed by more advanced classes on filing motions, the process of civil discovery, basic issues of evidence, and pre-trial preparation.   For those undaunted by the prospect of representing themselves, the law library has a self-help packet for each of these areas.  The packets go into further detail with step-by-step instructions  and a discussion of the process in King County. As an added bonus, the law library has fantastic companion videos to help further illustrate some of the common problem areas that SRLs run into.  https://kcll.org/videos/  (Use the drop down to filter for civil litigation.)

Civil Litigation Packets

• Starting a Civil Lawsuit in Superior Court
• Responding to a Civil Lawsuit in Superior Court
• Making a Civil Motion in Superior Court (Case With Assigned Judge)
• Ask for a Default Judgment in Superior Court (Civil Case)
• Starting an Appeal from Superior Court to Court of Appeals

In addition to the civil litigation packets, the law library has compiled form kits for family law issues using the King County Family Law Instructions and the associated forms.  These packets provide an easy and convenient way for SRLs to have all the instructions and forms in one place without having to bounce back and forth between the Family Law Instructions page, the Washington Courts forms page, and the King County Superior Courts forms page.   As with the civil litigation packets, KCLL has developed short, easy to understand videos to help family law SRLs navigate various issues. https://kcll.org/videos/  (Use the drop down to filter for family law.)

Family Law Packets

• Divorce
• Parenting Plans
• Family Law Motions
  • Default
  • Contempt
• Temporary Orders
• Service of Process
• Guardianship
  • Adult
  • Minor

Probate and Other Packets of Interest to Attorneys

We also have several probate and estate packets that both SRLs and attorneys find useful.  Our Transfer on Death Deed and Replevin packets are frequently requested by attorneys.

Probate Packets

• Opening & Closing Probate WITH a Will
• Opening & Closing Probate WITHOUT a Will

Estate Packets

• Filing a Will without Opening Probate
• Will in a Safe Deposit Box
• Transfer on Death Deed (TODD)
• Small Estate Affidavit

Other Packets of Interest

• Replevin (How to Get Your Stuff Back by Court Order)
• Appeal a Driver’s License Suspension
• Claim Against a Contractor’s Bond

Washington Law Help

The form packets available via the law library are specifically tailored to King County rules and procedures.  For packets with general Washington application, Washington Law Help is a great resource.  For almost any topic a self-represented party is pursuing, it is worth running a search on Washington Law Help to see if they have it covered.  A fantastic new resource on Washington Law Help that I encourage you to look at and point self-represented parties to, is their “Do It Yourself” forms depot.  The DIY Forms resource takes users through a Turbo Tax-like interview process which then auto-populates forms sets based on those answers.  For computer savvy SRLs, it takes away a lot of the frustration and uncertainty of drafting legal forms.

WA Law Help DIY-Forms Topic Areas:

• Filing Fee Waivers
• Answering a Debt Collection Lawsuit
• Filing for or Responding to Divorce
• Parenting Plans
• Healthcare Directives
• Vacating Drug Possession Conviction Post-Blake

Questions?

This is not an exhaustive list of the forms available on either the King County Law Library’s website or Washington Law Help.  If you have questions about locating form packets on either site, please reach out to the law library.  If there is a form packet you think would be of use to SRLs, (or attorneys) let us know.  If you need other non-SRL oriented forms, we can also cover you there.  We have an extensive array of forms sets available in both print and electronic resources. Contact the law library: services@kcll.org

Finally, a big thanks to Stephen Seely, our former Outreach Services Attorney and now Director of the Pierce County Law Library, for doing such an incredible job of creating KCLL form packets that are thorough, yet easy for lay person to understand.