VOL.6 NO. 9 (SEPTEMBER, 1996) PP.
LAW'S STORIES: NARRATIVE AND RHETORIC IN THE LAW by Peter Brooks and Paul Gewirtz (Editors). New Haven and London: Yale University Press, 1996. 320 pp. Cloth $30.00.
Reviewed by Ira L. Strauber, Department of Political Science, Grinn ical, and legal utility of confessions (the last for reducing death penalty sentences). Yet, in a nice post-modernist twist, Scarry goes with lawyers and their doubts about victim impact statements and against Gewirtz's qualified endorsement of them, arguing, in essence, that there is never a good reason to absolve the state, and the state alone, from being totally responsible for punishing citizens.
In the second comment the Weberian voice returns, via the skepticism of practitioner Louis Seidman. He assembles a set of short "confessionals" about his work as a public defender to say that all there is to the law is story upon story, and that it is futile to make more of it than that. The concluding section concerns the rhetoric of judicial opinions. John Hollander, a poet, provides a short historical and conceptual sketch of linkages between classical and modern analyses of metaphor, analogy, and simile to demonstrate how precedents might be better understood as a rhetoric of authority and not persuasion. Sanford Levinson addresses this and other issues of authority and persuasion from the context of the judicial hierarchy. One of his purposes is to encourage scholars to ask empirical questions about context even as they interpret judicial rhetoric, so as to be more attentive to the possibility that higher courts use rhetorics of authority (force) more than persuasion. Another purpose is to encourage questions about the intended audience of opinions, as when, for instance, one tries to evaluaconcerns as the precise fit between literary and legal analysis and the political promise of legal storytelling resonate throughout the volume so as to provide a lively and profitable read.
In Section One, devoted specifically to the concern over fit, Martha Minow identifies storytelling with common-law reasoning and the political theory storytelling of Hannah Arendt. This leads her to argue that storytelling about the law, like the common law, is always incomplete because it attends to specifics that are complex and always susceptible to various interpretations. And, like Arendt's theorizing, storytelling struggles with, but cannot resolve, fundamental dilemmas about the meaning of modernity and scholarly methods. Nevertheless, Minow sees promise in storytelling's challenge to scholarly conventions and its willingness to confront messy and complex social realities.
Daniel Farber and Suzanne Sherry situate storytelling in the "deep intellectual divide" (51) between devotees of Enlightenment rationality and critical theorists who want to displace conventional scholarship--in other words, between advocates of the coherence of legal formalisms and advocates of the indeterminacy thesis. Farber and Sherry favor that thesis and its challenge to conventional scholarly methods. But they are decidedly troubled by the intellectual messiness that supervenes and so propose three ways to achieve greater intellectual coherence: 1) use the language of the other side to win the battle of persuasion; 2) invent alternative approaches to legal reasoning; or 3) clarify what the divide is about to reduce hostilities if not discover some common ground. They prefer the last of these, but warn that the divide between the sides may be too deep to bridge.
Anthony Kronman, commenting as a legal scholar, issues a (Platonist) warning against the displacement of conventional scholarship: reason, he asserts, is required to guide actions, and storytelling that appeals to the emotions without giving conventional rationality its due leads to the abyss of moral indeterminacy. Taking the contrary position, Harlon Dalton, also a legal scholar, praises Minow's approach to storytelling and attacks Farber and Sherry's systematizing efforts as subversive to the interrogation and displacement of conventional methods.
Section Two concerns narrative constructions in and about (primarily) criminal law. Robert Weisberg, a legal scholar, takes a skeptical view of the ways the "law-as-narrative trope" is used to interpret litigation. Skepticism leads him to take issue with claims that storytelling has led to pungent challenges to conventional law or legal analysis. Much of the time he finds storytellers overly infatuated with their own ethical or political sentiments. Rather, like Minow, Weisberg locates storytelling's promise in its capacity to demonstrate why there is no single truth, nor even a dialectic between two competing truths, but only a persistent contest between polymorphous narratives about law, government, political interests, and identities.
Robert Ferguson, both a literary and legal scholar, concurs. His emphasis is on how the clash between opposing stories in trials, the need to persuade the court, the constraints of legal formalisms and procedures, and socio-political narratives outside the court produce manifold hidden, neglected, or repressed stories waiting to be recovered in trial transcripts and through cultural history by scholars and lawyers alike. Ferguson refers to an 1800 Virginia slave insurrection trial to explain why, in a polity committed to the rule of law and to social justice, some black legal scholars have come to see it as "both a prerogative and a burden to speak about the failures of the law in a personal or confessional mode (96). The commitment to such speaking out, Ferguson says, helps us to confront the future and its problems with less political alarm.
Practitioner Alan Dershowitz is among those who are not sanguine about storytelling, either in or about the law. Betraying a Weberian habit of mind, he asserts that "events are often simply meaningless, irrelevant to what comes next" (100). He claims that good narratives story lines make for bad trial law. Referring to the O.J. Simpson trial and the alleged associations between spousal abuse and murder as a case point, Dershowitz contends that dramatic story lines--which he bemoans as inevitably more attractive to jurors than statistical or probabilistic lines--distort the legal process and the good law that arises from rules for evidence, relevant testimony, and prejudicial accounts.
In the comments section, literary scholar Janet Malcolm and practitioner David Rosen present a fatalistic, yet sanguine, view of storytelling's effects in litigation. Malcom contrasts the hidden negotiations of trial side-bar conferences with the open antagonism of trial litigation. Although the hidden, she says, gives outsiders a false impression of lawyerly malevolence in a trial's story, it also has the positive effect of containing the malevolence and antagonism within the otherwise brittle procedures of judicial fair play. Rosen also refers to false impressions, acknowledging that the story he tells a jury for the sake of winning a trial differs from the political or moral story a client would prefer to tell. But compromising a client's preferred story is the inevitable, he says, price to be paid to protect a client's best judicial interests.
The editors hold sway in Section Three about the tendency of narratives to intrude on the law's capacity to exclude the messy and complex realities of social life. Brooks uses the narrative role of confessions in literature (e.g., Rousseau, Dostoevsky, and Camus) to suggest how and why confessions may be an attempt to assure punishment or to avoid it altogether or at least avoid greater punishment for another crime; they may even be an admission of something that is psychologically troubling but no crime at all. For Brooks, since the meaning and motives of confessions are unstable and unreliable (125), they are therefore unreliable indicators of legal guilt that the law should distrust.
For Gewirtz, victim impact statements at the sentencing stage in death penalty cases, as well as greater public interest in criminal trials as "a central moral arena for society" and "a source of entertainment" (151), introduce messy factors into the law. Gewirtz has some confidence in victim impact statements as a way to clarify harms to victims or relatives. But there may be unintended results as well, such as jurors being overwhelmed by emotional impressions that cloud their reasoning (e.g., thinking a greater penalty is due a criminal because they have been persuaded that some victims' lives are comparatively more valuable than some others').
As for the risks posed by public interest in trials, the greatest, says Gewirtz, is the delegitimization or corruption of the judicial process, when, as in the Simpson trial, the public rejects the story a jury tells for the one that the public wants told. But Gewirtz advises against trying to forestall all the risks of impact statements and public interest in trials; non-legal narratives always try to intrude into the law, he says, and the tension between the two is necessary in a republic. Litigators and adjudicators who are "self-conscious...theorist(s) of narrative forms" (147) should instead seek to balance the costs and benefits of the tension between what the law is and what the public wants from it.
Elaine Scarry comments directly on the essays of Brooks and Gewirtz. A literary scholar, she distrusts their focus on the narratives of participants (perpetrators and victims), for it omits, she says, sufficient attention to narrative in the context of the adversarial profession. As for confessions, Scarry holds that lawyers discourage confessions to preserve themselves. In effect, she faults Brook's analysis for its capitulation to legal self-interests, and she defends the moral, psychological, and legal utility of confessions (the last for reducing death penalty sentences). Yet, in a nice post-modernist twist, Scarry goes with lawyers and their doubts about victim impact statements and against Gewirtz's qualified endorsement of them, arguing, in essence, that there is never a good reason to absolve the state, and the state alone, from being totally responsible for punishing citizens.
In the second comment the Weberian voice returns, via the skepticism of practitioner Louis Seidman. He assembles a set of short “confessionals” about his work as a public defender to say that all there is to the law is story upon story, and that it is futile to make more of it than that. The concluding section concerns the rhetoric of judicial opinions. John Hollander, a poet, provides a short historical and conceptual sketch of linkages between classical and modern analyses of metaphor, analogy, and simile to demonstrate how precedents might be better understood as a rhetoric of authority and not persuasion. Sanford Levinson addresses this and other issues of authority and persuasion from the context of the judicial hierarchy. One of his purposes is to encourage scholars to ask empirical questions about context even as they interpret judicial rhetoric, so as to be more attentive to the possibility that higher courts use rhetorics of authority (force) more than persuasion. Another purpose is to encourage questions about the intended audience of opinions, as when, for instance, one tries to evaluate what it means to say that an opinion is persuasive or not. Levinson asserts that ever fewer judges and academics read opinions, and that consequently scholarship about an opinion's “persuasiveness” (whatever that may mean) says more about the scholar than the opinion. Nonetheless, and on yet another Weberian note, Levinson confirms such scholarship as a way of imposing intellectual order on the messy and complex realities of law and politics.
In the comment section, legal scholar Reva Siegel takes issue with Hollander's literary approach to tropes and Levinson's treatment of authority and persuasion. She finds them both stuck on (modernist) dichotomies that cause them to miss more important and less discernible ways in which figurative language contributes to the construction of social relationships and experiences. Siegel's premise is that figuratives knot together social facts, values, and descriptions so tightly that a different kind of analysis than either Hollander or Levinson provides is necessary to reveal how figuratives and power relations together shape the perceived authority and persuasiveness of legal rules and their social consequences.
In the comments section, Judge Pierre N. Leval delightfully takes notice of the similarity between his role at the conference and the corpse in Rembrandt's Anatomy Lesson! Leval, an archetypal formalist, is altogether unsympathetic to talk about rhetoric in the law. For him, storytelling is nothing more or less than a way to cover up unpersuasive arguments and weak legal reasoning.
J.M. Balkin makes an implicit rejoinder to Laval by arguing that rhetoric's intrinsic role in arguments in and about the law can be understood only by recalling classical rhetoric's treatment of topoi as problem-solving devices that help locate, categorize, and organize legal issues. Balkin claims that studying topoi will help (lawyers) clarify legal doctrines, foster legal creativity, increase understanding of shared social practices and background assumptions, and provide a more discriminating sense of law as an instrument of social policy.
The volume closes with a typically trenchant call by Catharine MacKinnon for unabashed storytelling about the excluded and the marginalized. She warns against regressive storytelling about the law that stops at descriptions and interpretations of messy and complex realities and therefore fails to attack existing power relations, inequalities, and conceptions of legitimacy.
In all, LAW'S STORIES is a worthy attempt to fulfill the editors' hope to encourage more research on stories in and about the law and to expand the audience for it beyond the legal community. Those who are unfamiliar or untutored in narrative and rhetoric will find the contributions accessible and provocative. Those who are more experienced will enjoy sorting out the disagreements among the contributors and acquire a clearer sense of what is at stake here.