Narrative Jurisprudence
James R. Elkins
College of Law / West Virginia University
What, Exactly Is "Narrative Jurisprudence"?
What, exactly, is "narrative jurisprudence"? A short definition ends up telling you something, but not all that much. We might, for example, say of narrative jurisprudence: it is an effort to see law–think about law, talk about law, understand law–from the perspective of stories. We "do" narrative jurisprudence when we try to see (and tell) stories that take place in law (e.g. stories told as one sets out to become a lawyer, stories that take place in a law office, stories told in a court room or to opposing counsel, stories told by way of appellate opinions) and then, the stories beyond law that have been formed and shaped fundamentally by law (e.g., our contemporary stories about race, gender, sexuality). We might then, say of narrative jurisprudence, that it is a way of thinking about law as composed and comprised of stories, performed in their most celebrated and public way–in trials. The stories are also told word-of-mouth, in various print media, and by way of popular culture (films, books, TV dramas).
As a student of narrative jurisprudence you will find frequent references to "law and literature" and "legal storytelling." "Law and literature" is now a recognized field of scholarly writing and scholarship (both in and beyond legal scholarly circles). "Law and literature" has been around for a long time--from the days when the nation was founded--but as a field of legal scholarship was reinvigorated and given new life by the work of a single scholar, James Boyd White (University of Colorado, University of Chicago, and now, the University of Michigan). [On "law and literature in the early days of the nation, see, Robert Ferguson, Law and Letters in American Culture (Cambridge: Harvard University Press, 1984). James Boyd White's often celebrated case/text book which set so many of us to thinking about law from a literary perspective was published 30 years ago and I still turn to my battered copy with amazement and appreciation. See James Boyd White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Boston: Little, Brown and Company, 1973)]. The traditional view of "law and literature" was and is still described by the well-worn phrases: "literature in law" and "law as literature." James Boyd White had a far more encompassing view of law and literature, a view one might view as jurisprudential in nature except for the fact that White himself never adopted "jurisprudence" as a label for his work. (Interesting enough, White, often identified as a "law and literature" scholar, explored in his earliest writings, in particular The Legal Imagination, not just law and literature but the lawyer and judge as a tellers and makers of stories, and how through stories--client to lawyer, lawyer to client, lawyer to judge, trial judges listening to stories, appellate judges transforming trial court records and law into judicial opinions--that law gets made and becomes a part of our culture.
It is this sense of lawyers and judges telling and making stories, that we find ourselves talking about "legal storytelling." Basically, "legal storytelling" seems to have been adopted by those who find themselves attracted to the idea of stories and narrative but not to the theoretical apparatus that accompanies narrative as a "new" school of jurisprudence. For others, it is the politics, or the progressive or critical turn of those who work with narratives that leave them looking for new terminology. Consequently, the term "legal storytelling" seems to have been adopted by those of a more practical (and less literary) turn of mind, so it gets used in clinician teaching circles, and by those who want to focus more on lawyers, less on law, less on literature. For some, literature, like jurisprudence comes with too much baggage, and thus the need for a different terminology.
[These comments were prepared as an introductory lecture for students in James McLaughlin's Jurisprudence course, October 13, 2002]
More Thoughts On Narrative Jurisprudence
There's something a bit daunting, if not downright discouraging, by
the question–"what, exactly, is narrative jurisprudence?"
James Boyd White, credited for the scholarly work which helped bring
about the resurgence of interest in law and literature, made studious
efforts to avoid placing a jurisprudential label on his work, or ever
attempting to say "exactly" what kind of jurisprudence it
was he was attempting to create (and it did look, at the time, quite
"new"). White reminded us that what he wanted to do was
something by way of performance rather than by way of definition and
argument (the staple approach of the law review argument and the analytical
philosopher). There are those who begin a scholarly work with a set
of definitions and do so because they believe definitions to be the
basis of all rational inquiry. White, on different occasions
and in different ways, argues that neither law nor jurisprudence can
be best known by a set of labels and definitions. The law, of course,
is chock-full of definitions--we call them rules. And while we have
difficulty thinking about law without rules, or jurisprudence without
definitions, we may end up with our rules and definitions while missing
the greater part of both law and jurisprudence.
One way to think about (and define) a "school of jurisprudence"
is to view it from the perspective of the scholarly writing in which
it is presented and explored. For the "table of contents"
of the first narrative jurisprudence readers, see: Narrative
and the Legal Discourse (David R. Papke ed., 1991).
On the matter of terminology, one might ask, why "narrative jurisprudence"?
Wouldn't "story jurisprudence" do as well? A quick Google
search for "story jurisprudence" results in a grand total
of three (3) hits, two of them irrelevant to the immediate subject.
We use the term narrative because it has a grander (more scholarly,
academic) ring to it. Stories are, after all, the most common of "things"
and consequently less appealing to those academically inclined.
Law, once viewed as a science, is now we are told, a branch of economics.
For the traditionalist, law remains as always, a study of rules and
legal doctrine and the deployment of practical skills that lead to
problem-solving. In the traditionalist perspective, law is a technical
craft. As we move beyond the confines of tradition, we urged to study
law as rhetoric or semiotics, as a game or as poetics. Amidst all
these varying conceptualizations of law and legal studies, a new school
of jurisprudence has emerged that focuses on law and lawyering from
a literary perspective, a jurisprudence that invites us to re-examine
the stories and narratives within which we know and practice law.
In jurisprudence, judicial decisions, the attorney-client relationship,
legal education, and one's own professional life, we do indeed find
ways to locate and give our lives and activities meaning by way of
story and narrative.
The study of lawyer narratives and legal stories and the stories of
those who inhabit the world of law and lawyers is part of a larger,
ongoing intellectual movement, a turn to: interpretation, pragmatics
and strategies of reading and writing, literary criticism, poetics,
conversation and voice, rhetoric and performative skills, gender and
race, culture and cultural studies. This "turn" (or more
accurately, a series of "turnings") are embodied (or embedded)
in various contemporary forms of postmodern critical and humanistic
approaches to law and legal studies that has emerged since the 1970s.
How are we to explain the turn to narrative, a turn found in all the
disciplines? "Perhaps it is the post-Kuhnian pragmatism about
truth that has spread from the history of science through out the
academy." [Kim Lane Scheppele, Legal Story-telling,
87 Mich. L. Rev. 2073 (1989)]
Tristan Layle Duncan contends, narrativists focus on language in order to "situate legal perspective in human experience. . . ." [Tristan Layle Duncan, Narrative Jurisprudence: The Remystification of the Law, 7 J. Law and Religion 105, 116 (1989)]
American legal scholarship of the past half century reflects an interesting tension between what was once labeled theory and practice, today we might locate the tension between theory and story. Narrativists resist the notion that our best (or privileged) understanding of law must always take the form of abstract theory. The rebellion springs from a resistance to the reification of theory and the lingering remnants of positivism.
The rebellion, viewed historically, has taken place on a number of fronts:
the call for more practical and experiential approaches to legal education (Jerome Frank, the clinical movement in legal education, and Jack Himmelstein's "humanistic" psychology project for legal education reflect the range of "experiential" concerns);
Both the social sciences and the humanities have provided new grounds for critique of law and legal studies. From a humanistic perspective, the new critique focuses on textual and con-textual "readings" of law, viewing law as cultural artifact, formed within a culture of argument (rhetoric). Today the resistance to legal positivism and it's contemporary clones, comes packaged as anti-foundational philosophies (Stanley Fish and Richard Rorty), the "turn to interpretation" (driven by high energy efforts to shape and confine our readings of the Constitution), the "call to context" (Martha Minow), pragmatism (a neo-liberal philosophical creed), and cultural, race and gender studies (i.e., "outsider" jurisprudence, feminist jurisprudence, critical race theory). These various strands of contemporary philosophical, hermeneutical, and literary discourse are sometimes yoked together. [See e.g., anti-foundationalism, pragmatism, and narrative, in Dennis M. Patterson, Law's Pragmatism: Law as Practice & Narrative, 76 Va. L. Rev. 937 (1990)]. In feminist jurisprudence, one finds a weaving of critical, political, personal, and contextual strands of contemporary scholarship and a deep receptivity to narrative.
The narrative perspective pervades jurisprudence as
the phantasy of law as an autonomous discipline gives way. It takes
its place with other disciplines which have found a place within the
field of legal theory and legal scholarship (at times, with far less
influence on legal education: psychology (who now remembers psychoanalytic
jurisprudence?); anthropology (Clifford Geertz, an anthologist, gives
the prestigious Storrs Lectures at Yale Law School in 1981); sociology;
economics (the law and economics movement, in the work of Guido Calabrisi
and Richard Posner, in the early 1970s has a major impact in law and
legal scholarship); history (the critical writers of Morton Horowitz,
who was also associated with critical legal studies); philosophy;
theology (the early work of Thomas Shaffer, Robert Rodes, and Harold
Berman). Law has become a subject of interdisciplinary and transdisciplinary
focus.
There is, in this idea of exploring the origins of narrative jurisprudence,
the idea that we might, by some means, find it worthwhile to start
at the beginning, that point in time we might reasonably call the
beginning, and from there, systematically work forward.
It would be hard to imagine getting back to the beginning of the kind of jurisprudence that Jim McLaughlin has been exploring with you during the first part of the course. If, for example, the tension between legal positivism and natural law is a central subject of jurisprudence (and one might well see legal positivism/natural law as the fundamental conflict underlying and shaping American jurisprudence as a subject central to traditional jurisprudence), then you'd have to undertake quite an intellectual excavation and a long-journey indeed to get back to the headwaters from which that conflict flows. Or, one might find, rightly, that different, overlapping, competing, conflicting notions of justice to lie at the heart of a well-established study of jurisprudence. Again, one might try to trace back in history our understanding of justice, but to get to the origins of our sense and performance of justice, your going to find yourself involved in quite an endeavor. It could be an awfully interesting one, but I suspect that if Professor McLaughlin had walked into this course and announced that you were going to study the history of justice and begin with the Greeks and Romans (if not still earlier "civilizations"), many of you would cringed at the thoughts of what might lie ahead. (This one, one suspects, be a perfectly good jurisprudence course if the desire were to keep down the enrollment in the course!)
But with narrative jurisprudence (and the other schools of contemporary jurisprudence–critical legal studies, feminist jurisprudence, critical race theory, law and economics–we have, unlike legal positivism/natural law and the study of justice, a "school" of jurisprudence which arose and took shape and established itself during my professional life. I watched narrative jurisprudence from its beginnings, witnessed it's becoming. I spend a part of a summer studying with James Boyd White in the early 1980s and in 1985 wrote an essay in which I explored (in a rather disconnected way) what I was even then calling "narrative jurisprudence."
So where, one might ask, did narrative jurisprudence begin? I think it can be dated with the publication of James Boyd White's The Legal Imagination in 1973 (the book is subtitled "Studies in the Nature of Legal Thought and Expression"). The Legal Imagination is distinctive in many different ways, visually, for those who know a book by its cover, it appeared in a distinctive yellow; so unlike the traditional Foundation Press blue and even Little, Brown's own, traditional, red (The Legal Imagination was published by Little, Brown).
The Legal Imagination was an important book for a small number of legal educators. It was innovative and different from virtually everything that had gone before (except perhaps for Bishin & Stone's Law, Language and Ethics), so different in fact that it was more read by teachers than actually used as a coursebook. To some, no doubt, the book was idiosyncratic, downright quirky. In my view, it was, simply brilliant. [The best argument for the book's brilliance is Thomas Eisele, The Legal Imagination and Language: A Philosophical Criticism, 47 U. Colo. L. Rev. 363, 380 (1976)]. It was so good I didn't know how to go about teach the book, and didn't even consider using it for a course until I spent that time with White as a student in his National Endowment for the Humanities (NEH) seminar for law teachers. It was then that I decided to teach a course I would honor White by calling "The Legal Imagination." It wasn't a course in narrative jurisprudence, but the foundation for one.
By the time I taught "The Legal Imagination," I had, of course, used Bishin & Stone's Law, Language and Ethics as the assigned text in what was then a required 1st year, first semester course called "Introduction to Law" (this was 1977-1979). The teacher of the other section of that course was Jim McLaughlin. As intrigued as I was by the Bishin and Stone book–a colleague at another law school told me that he wouldn't think of trying to assign his student's such a book and that if I tried it at West Virginia I'd never get tenure. Well, I got tenure, and managed, by one means or another to create all manner if courses that colleagues at other institutions found it difficult to believe could be offered at a school like West Virginia.
But there is, in teaching at the margins, a cost. I've always borne them knowingly, even as they've resulted in my marginal status. Jim McLaughlin, to his great credit, has always shown an interest in what (and how) I teach, an interest which may, one assume be in part attributed to his long-standing interest in jurisprudence.
Narrative jurisprudence is one of several new approaches to jurisprudence
that have emerged in the last twenty-five years. The new schools of
jurisprudence include critical legal studies, feminist jurisprudence,
critical race theory, and law and economics.
Of the other contemporary schools of jurisprudence (and we might want to think of them as perspectives or orientations, in contrast to "schools"), it seems fair to say that law and economics scholars have shown no interest in narrative, indeed, economics read most literally might be seen as a non-narrative discipline, if not anti-narrative. Of course, economics no more than any other discipline (try as it might) can be devoid of narrative, although it may try desperately to be so by way of its mathematical and analytical models, empirical orientation, and abstract theory. Yet, there has, to my knowledge been no discipline in the last twenty-five years to escape the attention of narrativists. The turn to narrative has swept widely if not deeply through all the disciplines, social sciences, humanities, and professions, and yes, it has even reached the anti-narrative discipline of economics. Donald N. McCloskey, a University of Iowa professor of economics and history, provided the most thoroughgoing effort to envision economics from a narrative perspective in his thoroughly engaging, If You're So Smart: The Narrative of Economic Expertise (Chicago: University of Chicago Press, 1990). [Robin Malloy, a law colleague at Syracuse University, has also attempted to take account of the narrative perspective in his interdisciplinary approach to law and economics.] Of course, psychology, sociology, and anthropology, as well as history and philosophy were subjected to the "turn to narrative" well before 1990 and the publication of McCloskey's book, still further testimony to the divergence in thinking between narrativists and economists.
As a footnote to my brief account of the relationship of narrative
jurisprudence and law and economics, there should be at least a footnote
to one significant oddity–Judge Richard Posner.
Posner was, of course, one of the founders of the law and economics movement, now sitting as a Federal Judge on the U. S. Court of Appeals for the Seventh Circuit (we have yet to see a narrativist appointed to such a position). Posner is a self-styled Renaissance man and a prolific scholar, and he has written what has become, regrettably I think, one of the most widely-read books on law and literature, Law and Literature A Misunderstood Relation. It's an odd, quarrelsome book. Odd because Posner seems to have read everything, and in reading it wants to have a foot in two camps–the camp of literary-minded lawyers who believe that law has always, in its own way, been associated in one fashion or another with literature and the camp of the skeptics who believe that lawyers and judges as lawyers and judges have little to learn from literature. This is the same man/judge/intellectual/scholar who has written some strikingly interesting things about jurisprudence (and especially so when it forays beyond the dogma of law and economics which he still interjects into his scholarly work). Exactly where law might stand as a "discipline" is, of course, a highly contested matter.
There is, I think something really quite odd about Posner's dabbling (in such an authoritative way) in the law and literature field in light of the fact that his first allegiance is to law and economics.
A second notable oddity in the narrative/law and economics field is
that Donald N. McCloskey who so admirably explored economics from
a narrative perspective has gone on to become a woman and now writes
under the name Deirdre McCloskey.
Feminist jurisprudence and critical race theory, unlike law and economics
and critical legal studies, have both embraced stories and narratives,
so much so that Richard Delgado (University of Colorado), a critical
race theorist and narrativist, at times (annoyingly) claims that narrative
jurisprudence arose from the scholarly practices of critical race
theorists and feminist scholars. The origins of narrative jurisprudence
are better found in the work of James Boyd White, Robert Cover, and
Thomas Shaffer, rather than the critical race scholars or feminists.
Given the way feminist jurisprudence and critical race theory have
embraced narrative (in theory and practice), it would be possible
to explore both schools of jurisprudence from the perspective of the
narratives they have produced and their theoretical writings about
narrative.
For those interested in critical race theory, the teacher/scholar who most actively embraced narrative, not just as an academic theory, but has a writer of legal fiction has been Derek Bell. (Bell was a tenured member of the Harvard Law School faculty and left in a bitter, well-publicized departure brought about by his attempt to pressure Harvard into giving tenure to people of color. Bell is now at NYU.
A narrativist and feminist, Patricia Williams, is the author of The Alchemy of Race and Rights: A Diary of a Law Professor which remains the most widely celebrated effort to tell stories, do theory, and tell how law (and legal education) works. The Alchemy of Race and Rights, named one of the 25 best books of 1991 by the Voice Literary Supplement, was selected as one of the "feminist classics of the last 20 years" in Ms. Magazine's 20th Anniversary Edition (July/August 1992). In 2000, Williams was selected for MacArthur Fellowship, am award given annually by the John D. and Catherine T. MacArthur Foundation, which provides those honored with $500,000 in funding over five years. The MacArthur Foundation cited Williams use of "the tools of literary and legal theory" to develop a "voice" that "has created a new form of legal writing and scholarship that integrates personal narrative, critical and literary theory, traditional legal doctrine, and empirical and sociological research."
For a seminal work in narrative-oriented feminist jurisprudence one of the better examples of the genre was written by Marie Ashe (now at Suffolk)(formerly at West Virginia), a law review article entitled "Zig-Zag Stitching and the Seamless Web: Thoughts on 'Reproduction' and the Law," 13 Nova Law Review 355 (1989)
There are four ways we might think about a study of narrative jurisprudence:
(1) Legal Storytelling: How and where do stories become relevant to
lawyers and judges? In what sense are lawyers and judges storytellers?
(2) Legal Scholarship: Where and how and what stories are being told
in contemporary legal scholarly writings and for what purpose? (3)
Law Stories, Popular Culture and Literature: What stories are being
told about us (lawyers, judges, law students, clients) in the popular
culture media (films, TV dramas, legal thrillers)? In literature?
What can we learn about ourselves, the legal profession and our place
in the profession by way of these stories (that we might not learn
from more traditional sources)? (4) A Life as Story: How would we
try to think about the legal profession if we viewed our
own lives as stories? What changes and transformations take place
when we become lawyers and take on the identity (or some one of various
identities) that a lawyer assumes? What
kind of story is legal education? (5) Law Stories as Moral Tales:
Thomas
Shaffer wrote early articles on stories as the foundation of law
ethics, including a widely read and admired article on Atticus Finch,
the lawyer hero in Harper Lee's To Kill a Mockingbird and a
piece on Sir Thomas More (known best by way of Robert Bolt's play,
A Man for All Seasons and the fine film based on the Bolt play)
There are two journals that focus on law and humanities and law and
literature but neither journal devotes much attention to narrative
jurisprudence or legal storytelling. The Yale Journal of Law and
the Humanities was first published in 1988 and the Cardozo
Studies in Law and Literature in 1989. The appearance of these
journals signal the evolution of law and literature as a field of
academic study but neither serves as an effective vehicle for the
story and narrative perspective in legal education.
The Yale Journal of Law and the Humanities, by way of a "Note
from the Editors" in its first issue celebrates the reemergence
of the humanities as a significant "voice" in the study
of law. Note from the Editors, 1 Yale J. Law & Hum. v (1988).
The Editors suggest (by implication) that the humanities have made
their way into legal studies as part of an interdisciplinary movement
that is "sweeping away the division of law and the humanities."
The purpose of the humanities perspective in law, if we follow the
celebratory theme of the Editors of the Journal of Law and the Humanities,
is to study "the connections between the words we use and the
world that we make," "the socio-cultural narratives that
shape legal meaning," and "the formation, boundaries, and
persistent intervention of legal culture in various spheres of life."
Locating "narrative jurisprudence" as a school of contemporary
jurisprudence
Narrative jurisprudence takes its place among critical legal studies, feminist jurisprudence, critical race theory, and law and economics as what are now known as "contemporary schools of jurisprudence."
Critical Legal Studies, feminist jurisprudence, and critical race theory are rooted in the political and intellectual stirrings of the late 1960s & 1970s.
Critical Legal Studies: "CLS was officially started in 1977 at the conference at the University of Wisconsin-Madison, but its roots extend back to 1960 when many of its founding members participated in social activism surrounding the Civil Rights movement and the Vietnam War. Many CLS scholars entered law school in those years and began to apply the ideas, theories, and philosophies of post modernity (intellectual movements of the last half of the twentieth century) to the study of law. They borrowed from such diverse fields as social theory, political philosophy, economics, and literary theory. . . . Among noted CLS theorists are Roberto Mangabeira Unger, Robert W. Gordon, Morton J. Horowitz, Duncan Kennedy . . . ." [Legal Information Institute, Cornell University]
Feminist Jurisprudence: "Feminist jurisprudence is a philosophy of law based on the political, economic, and social equality of sexes. As a field of legal scholarship, feminist jurisprudence began in 1960s." [Legal Information Institute, Cornell] [The "social equality of sexes" has been a long-standing political movement. See: The Women's Rights Movement 1848-1998] [Timeline of Key Events in the American Women's Rights Movement] [Notable Dates: Betty Friedan, The Feminine Mystique (1963); Kate Millet, Sexual Politics (1970); also 1970: Germaine Greer, The Female Eunuch; Shulamith Firestone, The Dialectic of Sex; Robin Morgan (ed.), Sisterhood is Powerful; Maya Angelou, I Know Why the Caged Bird Sings. In 1972 the scholarly/movement journals Women's Studies and Feminist Studies published their first issues and Ms. began publication. In 1973 Roe v. Woe was decided by the Supreme Court of the United States. In 1975 Susan Brownmiller published Against Our Will and the most academic & scholarly of all the feminist/women's studies journals, Signs, began publication at the University of Chicago.] [The notable dates chronology was excerpted from: Lesbian Feminist Chronology: 1971-1976]
[Interesting enough, one of the most interesting (and perplexing) works of feminist jurisprudence is Patricia Williams's, The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge: Harvard University Press, 1991) which draws heavily on narrative and anecdotal storytelling] [Patricia Williams work is highly regard in feminist, critical, and narrative circles, although it has drawn some strikingly strident critiques. Her essays, some of which later found their way into The Alchemy of Race and Rights includes: The Obliging Shell: An Informal Essay on Formal Equal Opportunity, 87 Mich. L. Rev. 2128 (1989); On Being the Object of Property, 14 Signs 5 (1988); Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law's Response to Racism, 42 U. Miami L. Rev. 127 (1987); On Being Invisible, 4 Harv. Blackletter J. 16 (1987); Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 Harv. Civ. Rts.-Civ. L. Rev. 401 (1987); Grandmother Sophie, 3 Harv. Blackletter J. 79 (1986)]
Feminist jurisprudence is both grounded in and draws in its scholarly work on narrative. [See generally, Kathryn Abrams, Hearing the Call of Stories, 79 Cal. L. Rev. 971 (1991)] [The most searing piece of narrative jurisprudence in the feminist genre is the story/meditations found in Marie Ashe's "Zig-Zag Stitching and the Seamless Web: Thoughts on 'Reproduction' and the Law," 13 Nova L. Rev. 355 (1989)]
Critical Race Theory: "Earliest writings on Critical Race Theory can be traced to the works of Derrick Bell and Alan Freeman in the mid 1970s . . . . [B]oth Bell and Freeman were deeply concerned with the ‘snail pace’ progress of racial reform in the United States. Concerned and dismayed that any gains made by civil right laws of the 1960s were quickly being eroded in the 1970s, Derrick Bell, a lawyer who served as the executive director of an NAACP branch began to fashion arguments that were designed to change existing laws . . . .
Bell continued in his writings on critical theory even after accepting a teaching position at Harvard. Much of his legal scholarship was influenced by his experience both as a black man and as a civil rights attorney. Writing in a narrative style, Bell contributed to the intellectual discussions on race. According to Bell . . . his purpose in writing was to examine the racial issues within the context of their economic and social and political dimensions from a legal standpoint." [The History of Critical Race Theory]
Selected Bibliography: Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Mich. L. Rev. 2411 (1989); Anne M. Coughlin, Regulating the Self: autobiographical Performances in Outsider Scholarship, 81 Va. L. Rev. 1229 (1993) [Home Page]; Alex M. Johnson, Jr., Defending the Use of Narrative and Giving Content to the Voice of Color: Rejecting the Imposition of Process Theory in Legal Scholarship, 79 Iowa L. Rev. 803 (1994) Richard Delgado, Coughlin's Complaint: How to Disparage Outsider Writing, One Year Later, 82 Va. L. Rev. 95 (1996); Jerome McCristal Culp, Jr., Telling a Black Legal Story: Privilege, Authenticity, "Blunders" and Transformations in Outsider Narratives, 82 Va. L. Rev. 69 (1996)
Law and Economics: Law and economics emerges not from the politics of the times (although it indeed represents a "politics") but from the perennial quest to make law a science (as a school of jurisprudence it can be traced to Guido Calabresi's late 1960s/early 1970s work which resulted in the publication of The Cost of Accidents: A Legal and Economic Analysis in 1970. Calabresi's book was followed in 1972 by Richard Posner’s Economic Analysis of Law (written in the days when Richard Posner was a Professor of Law at the University of Chicago; as you may know he is now a 7th Circuit Federal judge.
[On the history of the law and economics movement, see generally, Neil Duxbury, Patterns of American Jurisprudence 301-420 (1995)]
Locating "narrative jurisprudence" in relation to "law
and literature"
<1> The traditional approach to "law and literature"
<2> Reimagining "law and "literature" from a lawyer perspective
For an introduction to Shaffer's views on narrative, see: Thomas Shaffer, The Moral Theology of Atticus Finch, 42 U. Pitts. L. Rev. 181 (1981) (exploring the moral lessons that can be drawn from Harper Lee's To Kill a Mockingbird); Thomas Shaffer, Henry Knox and the Moral Theology of Law Firms, 38 Wash. & Lee L. Rev. 347 (1981); Thomas Shaffer, Christian Lawyer Stories and American Legal Ethics, 33 Mercer L. Rev. 877 (1982)For a critique and assessment of Shaffer's perspective, see John D. Ayer, Narrative in the Moral Theology of Tom Shaffer (Review Essay), 40 J. Legal Educ. 173 (1990); James R. Elkins, The Reconstruction of Legal Ethics as Ethics (Essay Review), 35 J. Legal Education 274 (1986). Ayer argues that while Thomas Shaffer's choice of stories in recent writings are "tolerably diverse," they are basically "middle-brow." The protagonists in Shaffer's stories tend, Ayer argues, to be a "mainline bunch." (182). Ayer goes on to complain that Shaffer's accounts of his protagonists tend toward "excess admiration." (184). Ayer doesn't find Shaffer's work totally devoid of critical perspective, but argues that, with a notable exception, it lacks a "sufficient sense of irony." (184). My own view of Shaffer's work is less critical. I confess to having what Ayer would call "excess admiration" for Shaffer's essays as Shaffer's early narrative-focused essays were influential in my own writing.
Locating "narrative jurisprudence" in legal education
For an account of legal education, drawing on student
stories of their legal education experience, see: James R. Elkins,
Writing Our Lives: Making Introspective Writing a Part of Legal Education,
29 Willamette Law Review 41-68 (1993); The Quest for Meaning: Narrative
Accounts of Legal Education, 38 J. Legal Educ. 577 (1988); Rites of
Passage: Law Students "Telling Their Lives", 35 J. Legal
Educ. 27 (1985); Worlds of Silence: Women in Law School, 8 Amer. Legal
Studies Forum 1-161 (1984) (James R. Elkins ed.); Becoming a Lawyer:
The Transformations of Self During Legal Education, 66 Soundings 450
(1983); Coping Strategies in Legal Education, 16 The Law Teacher 195
(1982)
James C. Foster, a political scientist at Oregon State, has written
a number of exemplary accounts of legal education drawing on extensive
interviews with students trying to come to grips with the meaning
of their legal educations. See James C. Foster, Antigones in the Bar:
Women Lawyers as Reluctant Adversaries, 10 Legal Studies Forum 287
(1986); Legal Education and the Production of Lawyers to (Re)Produce
Liberal Capitalism, 9 Legal Studies Forum 179 (1985); The "Cooling
Out" of Law Students, 3 Law & Pol. Q. 243 (1981) (reprinted
in Richard A. L. Gambitta, Marlynn L. May and James C. Foster (eds.),
Governing Through Courts (Beverly Hills, California: Sage,
1981)
For law teachers looking to use narrative in the classroom, instructive commentary can be found in Alison Grey Anderson, Lawyering in the Classroom: An Address to First Year Students, 10 Nova L. J. 271 (1986)
Bibliographical Guide to the Early Literature: For an economical
and accessible introduction to the various strands of narrative jurisprudence,
a reader might peruse the law review symposium issues devoted to the
subject: Lawyers as Storytellers & Storytellers as Lawyers: An
Interdisciplinary Symposium Exploring the Use of Storytelling in the
Practice of Law, 18 Ver. L. Rev. 581 (1994); Pedagogy of Narrative,
40 J. Legal Educ. 1-150 (1990); Legal Storytelling, 87 Mich. L. Rev.
2073-2494 (1989)
Some of the "Pedagogy of Narrative" Symposium articles that
first appeared in the Journal of Legal Education symposium issue articles
are reproduced in David Ray Papke (ed.), Narrative and the Legal Discourse
(Liverpool: Deborah Charles Publications, 1991). For a review of the
Papke collection of essays on narrative jurisprudence and thoughtful
reflections on the various strands of thinking in the legal storytelling
and narrative movement, see Jane B. Baron, The Many Promises of Storytelling
in Law (Essay Review), 23 Rutgers L. J. 79 (1991).
A frequently cited law review article on the narrative perspective
is Robert Cover, Nomos and Narrative, 97 Harv. L. Rev. 4 (1983). Cover
continued his exploration of narrative jurisprudence in The Folktales
of Justice: Tales of Jurisdiction, 14 Cap. U.L. Rev. 179 (1985).
For the jurisprudentially inclined, see Robin West, Jurisprudence
as Narrative: An Aesthetic Analysis of Modern Legal Theory, 60 N.Y.U.L.
Rev. 145 (1985). For a practical application of West's suggestion
that we find literary genres in our jurisprudential schemes, see David
R. Papke, Discharge as Denouement: Appreciating the Storytelling of
Appellate Opinions, 40 J. Legal Educ. 145 (1990)
For more skeptical views of the new narrative perspective, see Tristan Layle Duncan, Narrative Jurisprudence: The Remystification of the Law, 7 J. Law and Religion 105 (1989); Ann M. Couglin, Regulating the Self: Autobiographical Performances in Outsider Scholarship, 81 Va. L. Rev. 1229 (1995); Mark Tushnet, The Degradation of Constitutional Discourse, 81 Geo. L.J. 251 (1992); Daniel A. Farber and Suzanna Sherry, Telling Stories out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807 (1993); Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge: Harvard University Press, 1988). Posner's book was widely reviewed but critically disclaimed. For a comprehensive rebuttal to Posner's approach to law and literature, see James Boyd White, What Can a Lawyer Learn From Literature? (Book Review), 102 Harv. L. Rev. 2014 (1989) (a sustained theoretical and scholarly response to Posner's work)
Non-Legal Writings on Narrative--A Selected Bibliography
Bregman, Lucy & Sara Thiermann. First Person Mortal: Personal Narratives of Illness, Dying and Grief (New York: Paragon House, 1995)
Brody, Howard. Stories of Sickness (New Haven: Yale University Press, 1987)
Bruner, Jerome. Acts of Meaning (Cambridge: Harvard University Press, 1990)
____________. The Culture of Education (Cambridge: Harvard University Press, 1996)
Coles, Robert. The Call of Stories: Teaching and the Moral Imagination (1989)
Frank, Arthur W. The Wounded Storyteller: Body, Illness, Ethics (Chicago: University of Chicago Press, 1995)
Hauerwas, Stanley & L. Gregory Jones. Why Narrative? Readings in Narrative Theology (Grand Rapids, Michigan: William B. Eerdmans, 1989)
Hopcke, Robert H. There Are No Accidents: Synchronicity and the Stories of Our Lives (New York: Penguin Putman, 1997)
Hunter, Kathryn Montgomery. Doctors' Stories: The Narrative Structure of Medical Knowledge (Princeton, New Jersey: Princeton University Press, 1991)
Kaufman, Sharon R. The Ageless Self: Sources of Meaning in Late Life (Madison: University of Wisconsin Press, 1986)
Kleinman, Arthur. The Illness Narratives: Suffering, Healing & the Human Condition (New York: Basic Books, 1988)
McCloskey, Donald N. If You're So Smart: The Narrative of Economic Expertise (Chicago: University of Chicago Press, 1990)
Needleman, Jacob. The Way of the Physician (San Francisco: Harper and Row, 1985)
Nelson, Hilde Lindemann. Stories and Their Limits: Narrative Approaches to Bioethics (New York: Routledge, 1997)
Roemer, Michael. Telling Stories: Postmodernism and the Invalidation of Traditional Narrative (Lanham, Maryland: Rowman & Littlefield Publishers, 1995)
Simpkinson, Charles and Anne Simpkinson. Sacred Stories: A Celebration of the power of Stories to Transform and Heal (San Francisco: HarperSanFrancisco, 1993)
White, Hayden. The Content of the Form: Narrative Discourse and Historical Representation (1987)
