(it took me a day before I realized I violated Jeremy’s no caps rule)
I am sort of a lawyer, and I read a lot of law blogs. One of the never-ending debates in legal scholarship is the use of first-person narrative in legal scholarship. First person narrative, or “storytelling,” is one of the principal methodologies of Critical Race Theory, a scholarly movement that has an anti-discrimination project and through its lense and methodology attempts to speak for “voices from the bottom.”
[C]onsider whether there is something that first-person narrative brings to legal writing that is otherwise missing.
I know my friend Nancy Levit of UMKC School of Law thinks so. Along with Allen Rostron, Nancy started a series in the UMKC Law Review last year called “Law Stories: Tales from Legal Practice, Experience, and Education,” 75 UMKC L Rev 1127 (2007). Their purpose in starting this project was to expand on the art of legal storytelling:
Over the last few decades, storytelling became a subject of enormous interest and controversy within the world of legal scholarship. Law review articles appeared in the form of stories. Law professors pointed out that legal decisions were really stories that told a dominant narrative. Critical theorists began to tell counterstories to challenge or critique the traditional canon. Some used fictional stories as a method of analytical critique; others told accounts of actual events in ways that gave voice to the experiences of outsiders.Storytelling began to make its way into legal education in new ways. For instance, a major textbook publisher developed a new series of books that recount the stories behind landmark cases in specific subject areas, such as Torts or Employment Discrimination, to help students appreciate not only the players in major cases, but also the social context in which cases arise. Meanwhile, Scott Turow, John Grisham, and a legion of other lawyers invaded the realm of popular fiction and conquered the bestseller lists.
Legal theorists began to recognize what historians and practicing lawyers had long known and what cognitive psychologists were just discovering – the extraordinary power of stories. Stories are the way people, including judges and jurors, understand situations. People recall events in story form. Stories are educative; they illuminate different perspectives and evoke empathy. Stories create bonds; their evocative details engage people in ways that sterile legal arguments do not.
Because, like Nancy and Allen, I believe that legal storytelling is not only educative, but also a way to illuminate different perspectives, I chose to contribute this year to the Second Law Stories Series.
So, I ask you, readers of Concurring Opinions, should legal storytelling have a continuing, meaningful place in legal scholarship? And if so, aren’t some forms of legal blogging (not all) nothing more than elaborate ways of telling a good legal story and therefore, also a type of legal scholarship?
My comments at the Co-Op:
Qualitative research, when properly done and when bias is controlled for (as much as possible), is when I think narrative can be most useful and meaningful–when the responses form a sort of narrative that give life to the quantitative data, or generate theories for future studies.
But narrative qua narrative–ah, well, that’s an old controversy. When it comes to personal storytelling…there is a long, exhausting, neverending debate on the scholarly rigorousness and meaningful impact of such a methodology.
And I say this with great difficulty, as a former student of CRT.
It is an old debate. Everything comes to the legal academy last. But this is distinct from other debates in other disciplines, e.g. qualitative v. quantitative; the rigor of ethnographical studies, the bias potential and objectivity problem in embed participant observation studies (see Venkatesh’s Gang Leader For A Day, which also had IRB issues when he got involved with other gang leaders).
I am not a big fan of Delgado’s storytelling methodology (esp. the Rodrigo chronicles), but he has an article on this that started it all: “Storytelling for Oppositionists and Others: A Plea for Narrative” (Michigan Law Review, 87 (1989).
Farber and Sherry’s critique: Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807 (1993).
But I really like this analysis by Kathryn Abrams: Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971 (1991).
So, what say you, Scatterbrains? Is there a place for first person narrative in scholarship? Is it used much in sociological scholarship? Is it meaningful, useful, rigorous?
(If you click on the link above, please do not be appalled at and get all judgmental over the fact that law professors hardly know about IRB issues, much less know when they are supposed to run their projects past IRB boards. I do not want to know whether all the law reviews I have read that use (non social scientific) surveys and interviews had IRB approval. Fortunately, my advisor is a joint J.D./Ph.D, and so she is very much aware of IRB issues and walking me through all of them as I prepare to do fieldwork this summer. I am the only doctor of juridical science student at my school doing an empirical study (albeit qualitative). Empirical Legal Studies and Law and Society are doing much to integrate in a more rigorous manner law and social science, but let me tell you, coming from a program that is squarely “Just Law” (as opposed to “Law and ___”) I am scratching tooth and nail to get proper methodological training. Ah, maybe I should have transferred to the interdisciplinary Ph.D. Anyway, that’s neither here nor there. )