Ghostwriting the Government

Ghostwriting is when a writer prepares materials to be issued under someone else’s name. The word describes a politician’s use of a speechwriter, a student’s purchase of a term paper, or a tongue-twisted admirer asking a poet to craft a love letter on his behalf. It also happens inside organizations every day: staff draft documents for others “up the chain” to sign. But when legislators rely on staff and lobbyists to draft bills, when an agency head relies on staff or contractors to write a rule, and when a judge relies on her clerk for a draft opinion, the benefits of ghostwriting come into tension with government decisionmakers’ duties.

This Article argues that when a government decisionmaker has a duty to reason, ghostwriting can violate that duty because of the relationship between writing and thinking. A critique based on duty enhances our ability to assess the limits of governmental ghostwriting, and it comes just in time. In the quest for government efficiency in (de)regulation and beyond, the potential of generative artificial intelligence (AI) looms large. But the typical AI failsafe, a “human in the loop,” is simply not enough when the government has a duty to reason.