LAW STORIES: LAW, MEANING, AND VIOLENCE, edited by Gary Bellow and Martha Minow. Ann Arbor: University of Michigan Press, 1996. 233 pages.
Reviewed by Susan Silbey, Department of Sociology, Wellesley College.
Seductive, a page turner. Impressive, and yet sad. No, this book is more than sad, it is heart-breaking and infuriating. I realize that these are not the usual terms used to describe a work of social science or legal scholarship. This is not, however, the usual product of social or legal analysis. Rather, LAW STORIES is a work of social criticism by recognized scholars who also happen to be dedicated and imaginative teachers. As scholars and teachers, Bellow and Minow have collected from legal practitioners nine stories designed to provoke interrogation of commonplace and taken-for-granted assumptions about legal practice, including the lives of impoverished clients, the prerogatives of wealth, and the marriage of law and power. Self-described as a teaching tool, LAW STORIES will, however, enlighten not only law students but the general and professional public who will likely find these accounts as compelling as any work of popular fiction. Unhappily, these accounts of law's inadequacy as a vehicle for social justice are not fictions.
Each story offers a richly detailed account of a legal problem, setting, or case, constructed to allow multiple points of view, and "textured depictions of conventional practices and institutional cultures." In collecting these stories, Bellow and Minow wanted to provide opportunities for readers to develop "insights into how legal workers and those affected by law make their choices, understand their actions, and experience the frustrations and satisfactions they entail." By focusing on actors' situational constraints and interpretive repertoires, the editors' hoped to challenge students' analytical skills but at the same time and perhaps more importantly they wanted to encourage students to confront ethical dilemmas they will incur if they attempt to fulfill obligations as attorneys and moral actors. Rendering professional practice in the form of stories seemed the most effective means of achieving these pedagogical ambitions.
The book begins with an account by Bellow and Minow of a case, "Rita's Case," from Harvard's Legal Services Center in which the attorneys were asked to help Rita's grandmother secure legal custody from the state division of social services. In its presentation, this is a story about a young lawyer being trained to create distance between professional responsibility and emotional involvement. It is also a story about how a lawyer's empathetic connection with her clients created more satisfactory practice. It is a story about a family embroiled with state institutions acting not only independently but contradictorily "in the best interests of the child." In their presentation, the authors rename the place and the players but also provide the readers with a brief history of how "Rita's Case" became a teaching tool and the model for the chapters to follow. They offer a series of interpretations and reinterpretations inviting the reader to deconstruct the story through a sequence of institutional and normative lenses. Rather than providing the audience with a neatly packaged denouement, Bellow and Minow nurture a sense of uncertainty about the precariousness and insufficiency of legal remedies for complex socioemotional relations.
"Welfare Stories" by Anthony V. Alfieri is more self- consciously analytic. Unwilling to rest content by identifying dilemmas and uncertainties, Alfieri names the categories of subordination that characterize relationships among lawyers and clients on welfare. The chapter recalls the case of Mrs. Celeste, "a divorced Hispanic foster parent and a longtime food stamp recipient dependent on public assistance for survival." Alfieri uses long quotes from Mrs. Celeste in various hearings and meetings to display Mrs. Celeste's commitments to personal dignity, her role as a caretaker, her community and her civil rights. He juxtaposes to Mrs. Celeste's stories, the ways in which his legal translation of her accounts for official audiences obliterated her voice, undermined her dignity, and contributed to her subordination. The context of lawyer client relations, Alfieri writes, silences the client through the formal legal discourse, through institutional procedures, and conventional social norms defining the roles of impoverished clients and well-meaning attorney. The client is also subordinated by norms of accommodation, distrust and translation. Alfieri suggests, however, that through processes of reinscription, redescription, and recontextualization, clients and attorneys can resist the conventions of legal practice and thus to resist collaboration in the processes of subordination.
Because many law students and young lawyers train in legal services offices, the collection has more than a few stories about impoverished clients culled during their authors' in-service training. Lenora M. Lapidus' account, "Maintaining the Status Quo: Institutional Obstacles in a Child Custody Dispute" raises many of the concerns provoked by "Rita's Case" and "Welfare Stories." The multiplication effect, however, is compelling rather than repetitious. The unresponsiveness, inaccuracies, and insensitivities of the state child welfare departments is so unrelenting through these various accounts that one cannot imagine nor excuse it as the idiosyncratic incompetence of a few isolated individuals. In Lapidus' account, an adolescent girl is taken from her African American mother and given first to her white, sometimes absent father in an unsafe environment, and then put in foster care with out either parent because most of the agencies responsible prefer to defer to someone else's judgment and no one actually takes initiative to check out the situation. In a relay of deference and delay, the family court routinely turns to the department of social services, the department of social services fails to investigate the actual circumstances of the child's life, the guardian ad litem is defensive in a situation where she is the only one-shotter in a well orchestrated symphony of repeaters, and all prefer delay -- waiting to see what happens -- to decision.
"We are All We've Got" by Alice and Staughton Lynd moves the subject from families and poverty and legal services offices to economic relationships between workers and employers. The Lynds describe the efforts of Solidarity USA to secure promised pension and medical benefits from LTV Steel Company as it negotiated its bankruptcy. This is a story of political organizing advised and counseled by politically committed lawyers. It is the story of how labor's victories won through collective bargaining are undone by corporate victories won in bankruptcy courts.
"What's Wrong with These Pictures?" by Nell Minow may be THE archetypal morality tale of advanced capitalism. In the classical accounts of market capitalism, the general good -- defined as the economy, the society, or the state - - is secured because each actor (or firm) attempts to maximize its interests. The corporation seeks to maximize its profits and the individual shareholder/citizens are benefited proportionately, or they put their investments elsewhere. What happens, Nell Minow seems to ask, when the shareholders are blocked from either knowing how the corporate funds are spent, or from acting as shareholders when they know the funds are being misspent? Minow tells the story of the litigation that was initiated when Occidental Petroleum, a publicly traded company, spent stockholder profits for the personal projects of the company's CEO, Armand Hammer. Specifically, the Occidental board approved $375,000 for an autobiography of two years of Hammer's life, and more than $74 million dollars for a museum to house Hammer's art collection. In the end the case was settled but along the way, Minow tells a harrowing tale of corruption and greed at the highest levels of social status and wealth in America: the greed of law firms making a market in out-of-court settlements as a means of shutting off shareholder suits, the greed of the fabulously wealthy creating concrete monuments to themselves, and the greed of corporate boards who allocate profits to themselves rather than to their anonymous public shareholders.
These two stories occupy the central chapters of LAW STORIES and are remarkable, not only for the insight they offer into the not-so-niceties of corporate capitalism but, because the magnitude of the greed stands in such contrast to the very limited financial stakes but unlike nonetheless life and death struggles of foster parents, welfare clients, and families. While Armand Hammer can spend what must in some realistic sense be considered public money (citizens and pension funds shares in Occidental Petroleum) to buy himself a two year autobiography, Mrs. Celeste cannot get food stamps to feed her biological and foster children. While Occidental Petroleum can spend $74 millions dollars of public shareholder funds to build a museum ( to be directed by Mr. Hammer's paramour) rather than house the paintings in the Los Angeles County Museum, Mrs. Biaggi has to work two minimum wage jobs and go to school at night to demonstrate that she is a fit mother for her daughter. LAW STORIES allows us to see these cases side by side without the obsfucating legal language and choreography of doctrinal debate. These are the real law stories Bellow and Minow suggest, and we, as citizens, as scholars, and as lawyers (for those of us who are attorneys) have to find a way to make sense of them under some notion of legal justice.
Four more stories occupy the latter half of the book. These include an account by Charles Oggletree of some of his experiences in the Washington D.C. Public Defenders office and his efforts to defend juveniles offenders accused of rather serious crimes. In a roller-coaster account of successes, failures, and learning by doing, Oggletree confesses his ambivalence about his ability to help, sometimes even like, the clients whom he met in juvenile court and met again when he was a defender in adult court. Lynne Weaver provides a first person account of her first case at Boston Legal Services as a hearing impaired attorney representing a deaf client in a suit for wrongful dismissal. Lucie White describes the political empowerment engendered by parental participation in Head Start. The last story I read, actually the seventh among the books nine collected in LAW STORIES, is Abbe Smith's account of her representation of Claudia Brenner during the trial of Brenner's assailant on multiple counts of rape, attempted murder, and murder of Claudia's companion, Rebecca Wight. Although I was less sympathetic with Abbe Smith's self-righteous struggles to distinguish her commitments to representing criminal defendants and her feminist allegiance to this completely innocent victim of unprovoked violence, I confess to staining the pages with several tears as I read this straightforward, matter of fact account of courage and dignity in the face of unreasonable horror.
LAW STORIES is part of the recent flowering of narrative scholarship, a trend that is apparent in just about every social science discipline as well as law. (See, for example, LAW'S STORIES, edited by Peter Brooks and Paul Gewirtz, and Volume XX, Number 1 & 2, LEGAL STUDIES FORUM "The New Legal Writing Scholarship" for two other very recent entries to this genre.) This narrative, or cultural, turn, as it is sometimes called, challenges conventional scholarship by questioning the usual pairings between disinterest and knowledge, distance and objectivity, generality and truth. Rather than celebrating objectivity, generality, and precision -- the goals of social science -- narrative scholarship claims both to reveal truth and to unsettle power by separating these couples. Narrative scholarship seeks to incorporate subjective, contextualized, and particularistic accounts of social life as the object, method, and report of research (see Ewick and Silbey 1995). By displaying the relays of interaction and ambiguous meanings within any social encounter or setting, scholars can not only dislodge simplistic models of lawyering and legal decision making, they are also more accurately representing human reason and understanding.
The two virtues that have been claimed for narrative -- to reveal truth and to unsettle power -- are not separate or unrelated. Indeed, the political commitment to giving voice and bearing witness through narrative is underwritten by the epistemological conviction that there is no single, objectively apprehended truth. Conversely, the espitemological claim that there are multiple truths is based on the recognition that knowledge is socially and politically produced. Together, the two claims regarding narrative scholarship argue that the stories which have been buried, silenced, or obscured by the conventional methods of both social scientific and legal scholarship have the capacity to undermine the illusion of an objective, naturalized world which so often sustains inequality and subordination.
Although much narrative scholarship comes with this rather large political ambition, in fact, stories have no necessary political valence. As socially organized phenomenon, narratives can be both hegemonic and subversive (Ewick and Silbey 1995); they are implicated in the production of social meanings and the power relations expressed by and sustaining those meanings. Patricia Ewick and I have shown that when narratives emphasize particularity, and when they efface the connection between the particular and the general, rather than challenging power, they may actually help sustain hegemony. However, when narratives bridge particularities and make connections across individual experiences and subjectivities, they can display the social organization of power and function, as some narrative scholars urge, as a subversive social practice.
The editors of this collection adopt many of the methods and ambitions of narrative scholarship but with modest political ambition, perhaps too modest. Without specifically announcing a systematic political program, the editors nonetheless invite the reader to take a closer look at the ways in which law contributes to subordination and to inequality. The editors suggest that telling stories is not only a good way to teach, but may also transform legal practice. Because the stories in this book demonstrate how bureaucratic procedures, organizational routines, and professional prerogatives are as, or more, important than "rules of law" in shaping the outcomes of legal cases, they provide persuasive and detailed accounts of how power is structured and institutionalized They invite consideration of the ways in which legal practice, in individual cases, may help sustain institutionalized power. These narratives bridge the gap between daily social interaction and large-scale social structures.
Such understanding is necessary to unsettle power. The stories report about what happened, and simultaneously accomplish social action. In other words, the stories people tell about themselves and their lives both interpret and constitute those lives. Telling these particular law stories may be a way to learn about how the law works and of what legal practice consists, but it is also an act of the resistance to conventional legal practice and scholarship.
Peter Brooks and Paul Gewirtz (eds.) LAW'S STORIES: NARRATIVE AND RHETORIC IN THE LAW. New Haven: Yale University Press, 1996.
Patricia Ewick and Susan Silbey (1995) "Subversive Stories and Hegemonic
Tales: Toward a Sociology of Narrative" LAW AND SOCIETY REVIEW, Volume
29, No. 2, p. 197-226.