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Law's Stories

Law's Stories: Narrative and Rhetoric in the Law

Peter Brooks
Paul Gewirtz
Copyright Date: 1996
Published by: Yale University Press
Pages: 298
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  • Book Info
    Law's Stories
    Book Description:

    The law is full of stories, ranging from the competing narratives presented at trials to the Olympian historical narratives set forth in Supreme Court opinions. How those stories are told and listened to makes a crucial difference to those whose lives are reworked in legal storytelling. The public at large has increasingly been drawn to law as an area where vivid human stories are played out with distinctively high stakes. And scholars in several fields have recently come to recognize that law's stories need to be studied critically.This notable volume-inspired by a symposium held at Yale Law School-brings together an exceptional group of well-known figures in law and literary studies to take a probing look at how and why stories are told in the law and how they are constructed and made effective. Why is it that some stories-confessions, victim impact statements-can be excluded from decisionmakers' hearing? How do judges claim the authority by which they impose certain stories on reality?Law's Stories opens new perspectives on the law, as narrative exchange, performance, explanation. It provides a compelling encounter of law and literature, seen as two wary but necessary interlocutors.ContributorsJ. M. BalkinPeter BrooksHarlon L. DaltonAlan M. DershowitzDaniel A. FarberRobert A. FergusonPaul GewirtzJohn HollanderAnthony KronmanPierre N. LevalSanford LevinsonCatharine MacKinnonJanet MalcolmMartha MinowDavid N. RosenElaine ScarryLouis Michael SeidmanSuzanna SherryReva B. SiegelRobert Weisberg

    eISBN: 978-0-300-14629-5
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-viii)

    • Narrative and Rhetoric in the Law
      (pp. 2-13)
      Paul Gewirtz

      Books about law typically treat it as a bundle of rules and social policies. This book is different. It looks at law not as rules and policies but as stories, explanations, performances, linguistic exchanges—as narratives and rhetoric. This approach reflects a striking convergence of recent academic work about law and the general public’s enormous current interest in law. Both scholars and the public have increasingly been drawn to law as an arena where vivid human stories are played out—where stories are told and heard in distinctive ways and with distinctive stakes. There will always be great scholarly and...

    • The Law as Narrative and Rhetoric
      (pp. 14-22)
      Peter Brooks

      “Narrative and Rhetoric in the Law”: it has become evident that topics traditionally studied by literary scholars and critics have taken a place in legal studies. Rhetoric, the art of persuasion and, by extension, the organization of discourse, is a property of all statements. Narrative appears to be one of our large, all-pervasive ways of organizing and speaking the world—the way we make sense of meanings that unfold in and through time. The law, focused on putting facts in the world into coherent form and presenting them persuasively—to make a “case”—must always be intimately intertwined with rhetoric...


    • Stories in Law
      (pp. 24-36)
      Martha Minow

      One of my favorite stories is an old one about the walled city of Verona. Over time, the population inside the wall grew and the city became overcrowded. The problems from this circumstance mounted, until one day the Bishop decided something had to be done, and called a meeting with the Chief Rabbi.

      The Bishop said, “The overcrowding in Verona has become unbearable. The Jews must leave.”

      The Chief Rabbi said, “Leave? But we have lived here for generations! Surely we should talk about so drastic a measure.”

      The Bishop replied, “But who should talk? We could have a debate....

    • Legal Storytelling and Constitutional Law: The Medium and the Message
      (pp. 37-53)
      Daniel A. Farber and Suzanna Sherry

      Traditional legal scholarship was primarily doctrinal. It essentially attempted to synthesize confusing or complex areas of law, offering harmonizing principles or clarifying distinctions. In the past two decades, this form of scholarship has increasingly been supplemented by interdisciplinary work, often arguing for significant legal reforms. This interdisciplinary work retained the conventional forms of scholarship, familiar to professors of law, history, and economics alike. Most recently, however, a new form of legal scholarship has arisen. Rather than relying solely on legal or interdisciplinary authorities, empirical data, or rigorous analysis, legal scholars have begun to offer stories, often about their own real...


      • Leontius’ Tale
        (pp. 54-56)
        Anthony Kronman

        Stories often have a potent emotional effect. They please us, disturb us, make us cry and laugh, strengthen our attachments or dissolve them. Martha Minow and Daniel Farber recognize the emotional power that stories possess, but they also remind us of something else—the moral indeterminacy of storytelling. Some stories have good effects and others bad ones. Some stories strengthen good practices and good institutions, and others do the opposite. Moreover, stories do not contain within themselves the criteria for distinguishing the good ones from the bad. It seems, in fact, that the criteria for assessing the goodness and badness...

      • Storytelling on Its Own Terms
        (pp. 57-59)
        Harlon L. Dalton

        “One of my favorite stories is an old one.” Thus begins the chapter by Martha Minow. At the symposium she related the tale based on the threatened expulsion of Jews from the ancient walled city of Verona. As I listened to her oral rendition, I was immediately drawn in, even though I had heard the story before. Truth to tell, I had even heard Minow tell it before. Nevertheless, it all seemed fresh and new, in part because Minow is such a terrific yarn spinner and in part because the neurons that I had pressed into service on the prior...


    • Proclaiming Trials as Narratives: Premises and Pretenses
      (pp. 61-83)
      Robert Weisberg

      In what sense is law narrative? First, there is a mundane question of taxonomy: What does the topic “legal narrative” include? There is the judicial opinion or trial presentation as a narrative of the facts about the parties; there is legal scholarship reviewing the history or background of judicial decisions by treating that history narrative; there is, with increasing frequency these days, the legal scholar rendering insights in the form of narrative rather than conventional analysis and abstraction; there is the subtler issue of discovering hidden narratives underlying legal pronouncements that purport to have no history, or a different history....

    • Untold Stories in the Law
      (pp. 84-98)
      Robert A. Ferguson

      A continuum of publication marks a courtroom trial—from indictment, to transcript, to judicial decision and on from there to newspaper report, journal article, historical account, and fictional projection—and this continuum supplies the major source of explanation in understanding the role of trial events in a republic of laws. The standard extrapolations from this continuum—accusation, verdict, opinion, holding—control official perception, but these professional rubrics, all from the first part of the continuum, tell us little about the transmission of a trial into realms of communal recognition and understanding. Very few citizens ever so much as glance at...

    • Life Is Not a Dramatic Narrative
      (pp. 99-105)
      Alan M. Dershowitz

      The case involved a businessman named Hamilton who had taken out a life insurance policy on his partner ten days before the partner was gunned down by a professional hit man. The DA was finding it easy to persuade the jury that the timing could not possibly be coincidental, and Abe had been racking his mind for an answer. Emma [Abe’s seventeen-year-old daughter], finding that she simply couldn’t get his attention, had decided try to help him figure out a common-sense rebuttal to the DA’s circumstantial case.

      And she had.

      “Daddy,” she said, popping into his home office late one...


      • The Side-Bar Conference
        (pp. 106-109)
        Janet Malcolm

        The side-bar conference is the sotto voce discussion between the trial judge and the competing trial lawyers in which the conflicting claims of narrative and legal procedure—of stories crying out to be told and the law’s constraints on their telling—are argued and adjudicated. Because neither the jury nor the spectators can hear what is said, and because the press cannot report on what is said, these discussions are largely absent from the public consciousness of what happens in a trial. But as the lawyers and judges know, what is said and decided in these conferences can be crucial...

      • Rhetoric and Result in the Bobby Seale Trial
        (pp. 110-112)
        David N. Rosen

        Much of the power of narrative of the defendant in the Gabriel rebellion case comes from his refusal to participate in the trial. His rhetorical stance—denouncing the whole sham proceeding—is enormously powerful, but as a lawyer, I think immediately of the obvious fact that he did not win his case. Not that he was trying to. That is the point: he was not trying to. His was the freedom of having nothing left to lose, and he made the most of it. But what if the defendant is trying to win? What happens to the narrative then? What...


    • Storytelling Without Fear? Confession in Law and Literature
      (pp. 114-134)
      Peter Brooks

      A certain kind of narrative has long held a particularly problematic status in the law. As a kind of prologue to my remarks, let me mention the record of a criminal case that I stumbled on in the Yale Law Library, a case from 1819 in Manchester, Vermont, where the disappearance of the cantankerous Russell Colvin led to an accusation that his feuding neighbors, Stephen and Jesse Boorn, had murdered him—to which, after their conviction, they eventually confessed, only to have it discovered that Colvin was not dead, but had gone to live in Schenectady, New York. The subtitle...

    • Victims and Voyeurs: Two Narrative Problems at the Criminal Trial
      (pp. 135-161)
      Paul Gewirtz

      Law is all about human life, yet struggles to keep life at bay. This is especially true of the criminal trial. With the public typically ranking crime our country’s most important problem, the criminal trial reflects and ignites large passions. Yet it usually seeks to exclude much of that passion from its stage as the trial proceeds with its structured process of legal proof and judgment.

      Maintaining the boundary between the courtroom and ordinary life is a central part of what legal process is all about. Distinctive legal rules of procedure, jurisdiction, and evidence insist upon and define law’s autonomous...


      • Some Stories About Confessions and Confessions About Stories
        (pp. 162-164)
        Louis Michael Seidman

        Here is a story. It is a story I tell my criminal justice students whenever we discuss the mystery of why we should have a Fifth Amendment privilege against self-incrimination and how anyone could believe that the privilege represents a sensible limit on state coercion.

        Years ago I worked for the District of Columbia Public Defender Service. It became apparent to me after a while that the alibis my clients offered took a standard form. Invariably, at the time of the murder or robbery or burglary, they were at home watching television with their girlfriend and their mother. The cross-examination...

      • Speech Acts in Criminal Cases
        (pp. 165-174)
        Elaine Scarry

        Discussions about the place of narrative in the law often depend on a set of overt oppositions. One is numerical: the particularity or singularity of the story is juxtaposed to an alternative form of discourse that is understood to be numerically expansive, even universal. The second is material: the story is taken to be closer to concrete lived reality and to bodily events than is its alternative, which is thought of abstract and empty of material content. The third is cognitive: the story draws on our capacity for empathy and emotion; its alternative relies on rational argument and debate.



    • Legal Rhetoric
      (pp. 176-186)
      John Hollander

      The title of this chapter is meant to be provocative rather than provoking. It could easily refer to what many laymen consider to be bad, windy, evasive, false, self-protecting, unnecessarily hermetic, self-congratulating, and somehow phony things that lawyers might say. It can apply to what is unjustly felt to be a fussy, hermetic, dubiously exclusionary, and semantically unjustifiable technical vocabulary; or it can more legitimately apply to extralegal pleading—on behalf of the profession, its practices, or one’s own personal practice of those practices—in the court of some sort of public opinion. But if so employed, the phrase would...

    • The Rhetoric of the Judicial Opinion
      (pp. 187-205)
      Sanford Levinson

      Judicial opinions are rhetorical performances. The critic who essays an assessment of any performance, whether dramatic or judicial, must be aware, among other things, of the particular role assigned to the actor, the likely audience for the performance, and the effects sought by the performer.¹ In the case of the judicial opinion especially (but not exclusively), these effects include, among other things, persuading the audience and demonstrating a certain authority over it, which, as we shall see, are not at all the same thing.²

      Can one meaningfully discuss the rhetoric of the judicial opinion without specifying, at the very least,...


      • Judicial Opinions as Literature
        (pp. 206-210)
        Pierre N. Level

        I am a judge. I know nothing of the theories of narrative and of literary criticism of law. I wondered why I was invited to contribute to this volume. Because we are discussing stories, it occurred to me that a clue might lie in a story—a story told in one of the greatest paintings of all time, Rembrandt’sAnatomy Lesson. Close your eyes and pull it up on the screen of your mind’s eye. Learned doctors crowd around a table in rapt attention, disputing over the body parts of a cadaver laid out in front of them. Like many...

      • A Night in the Topics: The Reason of Legal Rhetoric and the Rhetoric of Legal Reason
        (pp. 211-224)
        J. M. Balkin

        An ironic feature of the current revival of interest in rhetoric and narrative in American legal scholarship has been its relative neglect of the classical tradition of rhetoric.¹ This neglect is ironic for three reasons. First, the classical tradition of rhetoric was not understood as something foreign to law and therefore a possible subject of “interdisciplinary” study. On the contrary, the art of rhetoric was seen as organically related to the practice of law.² Indeed, what we would today regard as legal education was to a significant degree education in rhetoric.³ Second, many of the problems that fuel our contemporary...

      • In the Eyes of the Law: Reflections on the Authority of Legal Discourse
        (pp. 225-231)
        Reva B. Siegel

        How do judicial opinions gain their authority? Sanford Levinson invites us to consider the following paradox: judicial opinions gain authority by persuasionandby force. To illustrate this dynamic, Levinson directs our attention to certain distinguishing features of the judicial opinion.

        To begin with, the authority of the judicial opinion flows from the ascribed authority of its author. Only judges who have been duly appointed can write opinions that bind litigants before them. As important, a judge’s opinion functions as precedent that controls the decisions of “inferior courts” (by exercise of “vertical” authority) as well as future decisions of the...

      • Law’s Stories as Reality and Politics
        (pp. 232-238)
        Catharine A. MacKinnon

        Requested to reflect upon this conference as a whole, I hazard that it coheres around appropriating reality—reality, that vexed, even beleaguered notion. Law’s way of taking in the world grounds it as a distinctively potent form of text. Case law has always started with stories called the facts. It is the sense that the facts have not felt real enough, that something has gone missing in them or was struggling to break through them, that has called law’s embrace of reality into question and impelled the specific movement back toward the world that has taken the form of narrative....

  9. Notes
    (pp. 239-278)
  10. Contributors
    (pp. 279-280)
  11. Index
    (pp. 281-290)