The Narrative Construction of Legal Reality*
Richard K. Sherwin**
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Introduction
What makes a deductive-nomological explanation “explain,” is . . . that it tells us why E [an individual event] had to be (occur), why E was necessary once the basis is there and the laws are accepted.
–Georg Henrik von Wright 1
What is truth? a mobile army of metaphors, metonyms, anthropomorphisms, in short, a sum of human relations which were poetically and rhetorically heightened, transferred, and adorned, and after long use seem solid, canonical, and binding to a nation.
–Friedrich Nietzsche 2
The law of rhetoric . . . is that one must lie in order to speak the truth.
–Jean-Paul Sartre 3
For a long time we have been taught to interpret the law's meaning and authority in the rhetoric of rhetoric's suppression. Objectivity,4 neutrality,5 and acontextual comprehensiveness6 have long served as academic standards by which to measure scholarly achievement and judicial excellence. In legal academia, impersonal abstractions rather than particular voices and dramas have ruled the day. We have been taught (and more often than not continue to teach others) to suppress the proper name, to play down who figures how in the stories that lawyers and judges tell.
There is nothing surprising in this. After all, it has long been a part of the Western philosophical tradition to prefer the abstract and the universal over the particular and the contextual. Recall Plato, who would have banished the poets and dramatic storytellers from his ideal state for fear of their undermining truth and law.7 (Plato's own political tale apparently would have escaped philosophical censure.8) Or consider Descartes, who derided the eloquence of rhetoric and narrative in favor of reason's supposedly unmediated clarity.9 (Yet Descartes also knew full well when “to put forward his ideas plainly and unemotionally and when to appeal to the irrational sides of human nature.”10)
And what of that other bright star in the Western philosophical firmament, Immanuel Kant? Did not Kant champion the modernist faith in dispassionate rationality. Was it not his belief that human reason could discern the intervention of justice in our world, as if it were some mighty transcendent force?11 Did he not insist upon the value of “disinterested” as opposed to “interested” judgments?12 More recently, one can hear the echoes of Kantian modernity in the words of John Rawls when Rawls speaks about justice and the concept of right: “Principles should be general. That is, it must be possible to formulate them without the use of what would be intuitively recognized as proper names, or rigged definite descriptions.”13 Justice as fairness, under the Rawlsian veil of ignorance, has no need of proper names or particular contexts. It has no need to hear personal stories or to look upon the historied face of the other.
On the other hand there has always been an other hand—the less dominant, less rule-bound, left-handed view.14 Today, in the natural sciences,15 the social sciences,16 the humanities,17 and the law,18 the traditional repudiation of rhetoric and dramatic narrative is being questioned. Increasingly, scholars are realizing the inescapability of storytelling and the diverse ways in which narratives construct what we regard as truth and reality.19 But of course this too is not new. Even before Plato there was Isocrates, who advised young men “to spend some time on the exact sciences, like astronomy and geometry, but not to allow their minds to be dried up by these barren subtleties, nor to be stranded on the theoretical speculations of the ancient sophists. . . .”20 And even after Descartes, there was Vico, who warned: “There is a danger that instruction in advanced philosophical criticism may lead to an abnormal growth of abstract intellectualism, and render young people unfit for the practice of eloquence.”21
And today, in the time of Rawls and Ackerman and Dworkin, increasingly, in the legal academy, we hear and read left-handed scholarly talk about the making and telling of stories. The new discourse comes from scholars who study particular legal contexts22 and who seek to give life to particular (often unheard) voices and dramas in the legal culture.23 In these works we are being invited, as Professor Peggy Davis has aptly put it, to consider “how people get together, talk, and settle upon articulations—and therefore upon interpretations—of facts and of governing rules . . . and the characteristics of mind and culture that structure the weaving of stories. . . .”24
Today the dominance of the rhetoric of rhetoric's suppression is easing. Amid the smoothing, depersonalized narratives of sweeping principle and decontextualized abstraction, other rhetorics can now be heard.25 In the legal culture today one can discern the rhetoric of multi-vocality, empathy, and emotion playing out against a living backdrop of drama, myth, and metaphor.26 These diverse rhetorical and narrative forms have always been there, even if their authority has at times fallen into desuetude. Perhaps in the years to come the reemergence of storytelling in the field of legal scholarship will come to be seen as part of a much larger cultural development; for convenience, let us call it postmodernism. In light of this culture-wide shift away from the positivist model for knowledge, cognition and perception, legal scholars and teachers of law may more readily be inclined to give serious thought to the realities that practicing lawyers and judges face everyday. They too will see that from the scraps and fragments of lived experience stories are being told—told to communicate,27 to persuade,28 and at times simply to be heard.29
As a result of such heightened sensitivity to the importance and pervasiveness of storytelling in the law, storytelling itself has come in for greater scholarly scrutiny.30 This is not surprising given the number of unanswered questions in this area. For example, of what are legal stories made and how do they work? How does a story trigger our narratival expectations, leading us to the familiar site of a known genre? How does the story exploit our world knowledge—the numerous and varied cultural scripts, schemata, and stereotypes, that we carry around in our heads?31 How does the story make use of shapeshifting mood devices, such as Todorov's transformations, which alter the action of the verb from a fait accompli (the historical fact of the matter) to an action that is psychologically in process (what we might call the contingent or subjunctive mode)?32 Or consider: How do story structure and character-typing interact with narrative composition and genre selection in the creation of meaning?33 This article only takes a small step along one of the paths that these inquiries project. Part I focuses on the narrative use of schemata in a series of redescriptions of a possible case of homicide. Part II examines the work of schemata and narrative genre together with the effects of plot and mood in the stories counsel told in briefs submitted to the United States Supreme Court in the landmark case of Miranda v. Arizona.34 My goal throughout is to try to convey a better sense of how particular story elements can be used to shape and inform the meaning of a particular legal reality. My hope is that this kind of close textual analysis will stimulate increased self-reflectiveness about how legal narratives trigger or induce a particular belief or expectation concerning the explanatory value (“truthfulness”) or verisimilitude (“lifelikeness”) of the legal and factual realities that are being portrayed.35
Before proceeding to the specific legal stories that this article will invite you to consider, one more point may warrant explicit noting. Much has been said over the years about the artificial reason of the law. From Lord Coke's day36 down to our own,37 jurists have referred to the law as a discipline unto itself. The interpretive or constructivist approach offered here does not deny that there may be practices which are unique to the legal culture. However, a significant aspect of the storytelling and, more generally, of the interpretive turn in legal studies involves the recognition of a complex interpenetration and cross-fertilization from the mainstream to the legal culture, and viceversa. Upon closer scrutiny of the stories that lawyers and judges tell, it becomes apparent that popular culture offers a rich source of meaning schemata which daily inform and shape our expectations about what constitutes a good story and how that story ought to play out.
For example, in the legal culture, as in the mainstream culture, there is evidence of a strong popular affection for the detective story’s ingenious, albeit straightforward, logic-driven marshalling of clues culminating in closure and finality.38 The detective story typically takes us along a causally sequential path ending with certainty, for in the end we know “who done it,” who is to blame. Such knowledge is often accompanied by a sense of inevitability. As if to say, “If one were but to look at the matter closely enough, the truth shall emerge. It is but awaiting detection.”39 In this respect, the detective story may be said to represent a popular version of the long-dominant “logico-scientific” genre.40 The world according to this genre is one in which logic makes its demands and reality complies. Whether we desire it to be so or not is quite beside the point, for surely impersonal natural forces care not a wit for human wishes and feelings. We must accept things as they are. We must accept reality. At least that is the familiar posture in which one finds oneself when one is in the grip of this kind of explanatory narrative genre. In the logicoscientific story the audience is typically cast in the role of objective observer, with a view of reality that is both dispassionate and fixed. Faced with what has been shown to be the case, one accepts.
Prosecutors in criminal cases can be quite fond of the logico-scientific story form.41 It comports nicely with their burden of proof, namely to demonstrate guilt beyond a reasonable doubt. And it carries a solid psychological insight. Cast into a world of objective truth, where deductive and inductive logic dictates concrete results, jurors may more readily accept their fate: to confirm what has already occurred, and to apply the rules that govern legal outcomes in such situations. Passivity before truth and law, letting the judgment that must come come, is a classic (although by no means exclusive) formula for prosecutorial success.
Of course, jurors may also be led to reject the passive role that the prosecutor may cast for them. Rather than being ruled by fixity and closure, jurors may instead enter a world of possibility and openness. At any rate, there is a good chance that this is the kind of world that the defense’s story will presuppose.42 This kind of story lacks logico-scientific precision. Instead, it portrays a world filled with contingencies, uncertainties—the stuff of human drama. The world that it presupposes is psychologically in process. In such a world, jurors are likely to feel compelled to rely upon their own world knowledge in order to fill in the gaps that the defense’s story presents. And the inherited cultural knowledge at the jurors’ fingertips will be, at least so the defense hopes, shaped and informed by the images, scripts, and familiar scenarios that defense counsel evokes during the course of the trial. For unlike the prosecutor’s passivity-inducing counter-narrative, the defense wants the jurors to know that this is their story too. They have the final say in the outcome of the drama. On this view, truth and justice need not be externally demanded: neither by objective reality nor by some impersonal (“logical”) force.43
From what has been said so far, one may begin to see how different narrative genres compete for a legal audience’s attention and belief.44 But there is more to be discerned here than competition among story genres, whether it is the genre of historical truth or that of narrative seduction. One may also note the influence of newly emerging story forms and storytelling techniques. Consider, in this regard, the impact of the quick-cut montage, the rapid juxtapositioning of sound and image in contemporary film and television, particularly in television advertising.45 These same techniques can be seen again in the thirty second sound bite on the news, or the ninety second summation on L.A. Law, or in the glitzy channel-surfing emulations of MTV. Given the potency of these audio-visual techniques, the more staid images and plodding plot forms of a previous generation, along with the world-view that they presuppose (typically featuring the evidentiary smoking gun as part of the airtight Sherlock Holmesian causal-analytic/mystery-expose format) may be losing their grip upon popular belief.46 Today the power of silent, rapid associations (as if unreeling scenes from some subliminal mythological tale) may more readily do the trick of truth-speak and persuasion.47
Consider the Rodney King affair. The general public’s interpretation of the beating of King was based primarily on the mass media’s extensive broadcast of the George Holliday videotape that captured the Los Angeles police officers’ blows. This contrasted sharply with the jury’s interpretation which was based not only on a slightly longer version of the Holliday videotape, but one that the defense team had skillfully contextualized (against the backdrop of an eight-mile, high-speed chase during which King reached speeds approaching 100 miles per hour) and reconstructed (using such techniques as freeze-frame sequencing to emphasize the officers’ responsiveness to King’s resistant behavior, and sound-track alternations to emphasize, for example, the sound of a Taser stun-dart being fired rather than that of a police baton blow). A recent New York Times article captures the point well:
[P]hotographic images of all sorts remain essentially ambiguous, and must be anchored in a convincing narrative before they take on a specific meaning. And most images can be made to fit into a number of widely disparate narratives.
. . . In news photography, captions play a crucial role in defining not only what a photograph means, but even what it depicts. Photojournalists are fond of recounting incidents in which the same picture, with different captions, has been used by different publications to illustrate exactly opposite points of view.
In television news, the raw information provided by the videotape of an event is heavily processed and filtered by a variety of mechanisms before it gets on the air.48
In short, whether the matter in question is technical or popular, whether the medium in which it is being portrayed is textual, audio-visual, or image only, there is no non-interpretative way to frame its meaning. Because this is so, the world-view that is prefigured in or presupposed by any storytelling technique, cannot be idly ignored, not if its power is to be understood and harnessed—or countered.49 This means that in order to perform effectively, many lawyers, particularly litigators, may be obliged to keep abreast of (in order to tap into) the popular storytelling forms and images that people commonly carry around in their heads.50 Today the main source of these forms and images is the electronic mass media. Legal scholars who ignore the truth of this reality will increasingly be talking to themselves.
But if self-reflexive storytelling and the constructivist (fiction/fact blending) spirit of postmodernism represent an important part of the current cultural scene, that does not mean that their impact is monolithic. For example, one might suggest that the hard-coreless postmodernism of some critical scholars51 and avant- garde film-makers52 is not the same as the soft-core postmodernism that we witness in most contemporary film and television—and in the most artful litigation.53 While the hard-coreless postmodernist may deny the very possibility of knowing truth or reality, claiming that there is simply no “there” there to know, the soft-core postmodernist offers more. Unlike their hard-coreless cousins, soft-core postmodernists are believers. Indeed, it is by virtue of their (and our) belief in the substance of certain images, feelings, myths, and dramatic forms that soft-core postmodernists can hook us into particular ways of seeing, thinking, and feeling about ourselves and others and events around us. In this way, soft-core postmodernism is able to supply more than the hardcoreless postmodernist’s ironic laughter or nihilistic despair in the face of cosmic emptiness or the endless profusion of form. Soft-core postmodernists (like most of us) know that that kind of brittle laughter and despair have no place in the world most of us inhabit—the everyday world of judgment and accountability, the law’s proper domain.54
What does it mean then, to speak of an end to the suppression of rhetorical and narratological analysis in legal education and scholarship? For one thing, I believe it has something to do with the emergence of the human voice, the proper name, the local drama. Witness in the legal culture today the claim of “thick” analysis countering the traditional claim of impersonal abstraction.55 As part of this development we find a growing number of legal scholars inviting us to see and hear and feel with the particular voice, the proper name struggling to emerge from beneath the scholar’s veil of ignorance. In addition to the emergence of diverse story forms we are also witnessing changes in the medium of storytelling itself. Consider the shift from textual linearity to audio-visual non-linearity.56 By virtue of this cultural development, the presentation of cumulative causal sequences may be viewed as but one among other methods of persuasion. For example, we also encounter the use of powerful, isolated images, and the non-verbal associations that they trigger in the viewer’s mind. This too, is a highly effective method of mobilizing desire and affecting belief.57
As a result of these cultural and cognitive developments, or perhaps as part of their occurrence, scholars in a variety of fields, including law, are being led to ask wide-ranging questions about how meaning occurs, or more aptly put, how meaning is constructed.58 Surprisingly, we still know comparatively little about what makes a good story work, or how it manages to enlist our passion and belief. Thus we ask: What are the constituent elements of a good story, and what function do they perform?
To begin to address these concerns in a particular legal context, consider the following illustrative story. It involves a possible case of homicide.
Richard K. Sherwin, The Narrative Construction of Legal Reality, was first published at 18 Vt. L. Rev. 681 (1994). © 1994 Vermont Law Review; Richard K. Sherwin. Reprinted with permission.
The article has been reprinted with only minor modifications in formatting, and the original footnote citation format has been retained.
* This essay is dedicated to Jerome Bruner, tireless trailblazer and teacher extraordinaire.
** Richard K. Sherwin. Professor of Law, New York Law School; J.S.D. 1989, L.L.M.1985, Columbia; J.D. 1981, Boston College; B.A. 1975, Brandeis.
1 GEORG HENRIK VON WRIGHT, EXPLANATION AND UNDERSTANDING 13 (1971).
2 FRIEDRICH NIETZSCHE, On Truth and Lying, in FRIEDRICH NIETZSCHE ON RHETORIC AND LANGUAGE 250 (Sander L. Gilman et al. eds. & trans., 1989) (n.d.).
3 JEAN PAUL SARTRE, SAINT-GENET: ACTOR & MARTYR 518 n. * (Bernard Frechtman trans., 1963) (1952).
4 See generally H. Richard Uviller, The Advocate, The Truth, and Judicial Hackles: A Reaction to Judge Frankel's Idea, 123 U. PA. L. REV. 1067, 1067 (1975) (“[I]t seems to me that properly directed and purged of obvious abuses, the juxtaposition of two contrary perspectives, the impact of challenge and counter-proof, often discloses to a neutral intelligence the most likely structure of Truth.”); ALEXANDER WELSH, STRONG REPRESENTATIONS: NARRATIVE AND CIRCUMSTANTIAL EVIDENCE IN ENGLAND (1992). For the past two hundred years, irrespective of their differences, Anglo- American and Continental courts of law have put primary emphasis on true representations of the facts. This state of affairs differs markedly from the frank emphasis upon superior rhetoric among ancient authorities; the customs of ordeal, combat, or compurgation known to early medieval Europeans; the finally selfdefeating methods of arriving at truth by torture and confession introduced in the twelfth century; or the original uses of the English jury trial. WELSH, supra, at 10.
5 See generally BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 309–10 (1980) (“[C]itizens of a liberal state have more than the right to complain in court when others frustrate their desires. They have a right to relief when their fellows prove incapable of justifying their power through Neutral dialogue.”); id. at 10–12 (on the desirability of neutrality); see also Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).
6 See generally JOHN RAWLS, A THEORY OF JUSTICE 13 (1971) (“Justice as fairness begins . . . with one of the most general of all choices which persons might make together, namely, with the choice of the first principles of a conception of justice which is to regulate all subsequent criticism and reform of institutions.”); RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 116–17 (1977) (describing Hercules as the ideal judge who “must construct a scheme of abstract and concrete principles that provides a coherent justification for all common law precedents and, so far as these are to be justified on principle, constitutional and statutory provisions as well”).
7 “[W]e can admit no poetry into our city save only hymns to the gods and the praises of good men. For if you grant admission to the honeyed Muse in lyric or epic, pleasure and pain will be lords of your city instead of law. . . .” PLATO, The Republic, Book X, line 607a, in PLATO, THE COLLECTED DIALOGUES (Edith Hamilton et al. eds., 1961) (n.d.) [hereinafter PLATO, The Republic]; see also PLATO, GORGIAS (W.C. Helmbold trans., The Liberal Arts Press, Inc. 1952) (n.d.) (equating rhetoric with beauty-culture and cookery, both of which pander harmfully to our depraved tastes rather than what is true or real).
8 This is Plato's “opportune falsehood” and “one noble lie” based on the caste of an individual's genetic metal. See PLATO, The Republic, supra note 7, at Book III, lines 414b–c. “God in fashioning those of you who are fitted to hold rule mingled gold in their generation, for which they are most precious—but in the helpers silver, and iron and brass in the farmers and other craftsmen.” Id. at lines 415a–b.
9 RENE DESCARTES, Discourse on Method, in THE PHILOSOPHICAL WORKS OF RENE DESCARTES (Elizabeth S. Haldane et al. trans., Cambridge Univ. Press 1931) (n.d.) “Those who have the strongest power of reasoning, and who most skillfully arrange their thoughts in order to render them clear and intelligible, have the best power of persuasion even if they can but speak the language of Lower Brittany and have never learned Rhetoric.” Id. at 85.
10 PETER FRANCE, RHETORIC AND TRUTH IN FRANCE: DESCARTES TO DIDEROT 67 (1972); see generally JEAN D. MOSS, NOVELTIES IN THE HEAVENS: RHETORIC AND SCIENCE IN THE COPERNICAN CONTROVERSY (1993).
11 See RICHARD KUHNS, TRAGEDY: CONTRADICTION AND REPRESSION 98 (1991).
12 See IMMANUEL KANT, CRITIQUE OF JUDGMENT 199 (J.H. Bernard trans., Hafner Press 1951) (n.d.) (“The beautiful pleases immediately . . . apart from any interest. . . .”); cf. FRIEDRICH NIETZSCHE, THE BIRTH OF TRAGEDY AND THE GENEALOGY OF MORALS 238 (Francis Golffing trans., Doubleday & Co. 1956) (1887) (“Kant, like all philosophers, instead of viewing the esthetic issue from the side of the artist, envisaged art and beauty solely from the ‘spectator's' point of view, and so, without himself realizing it, smuggled the ‘spectator’ into the concept of beauty.”). In Nietzsche's view, “All seeing is essentially perspective, and so is all knowing. The more emotions we allow to speak in a given matter, the more different eyes we can put on in order to view a given spectacle, the more complete will be our conception of it, the greater our ‘objectivity.’ ” NIETZSCHE, supra, at 255.
13 RAWLS, supra note 6, at 131.
14 See JEROME S. BRUNER, ON KNOWING: ESSAYS FOR THE LEFT HAND (expanded ed. 1979).
15 See generally PAUL FEYERABEND, SCIENCE IN A FREE SOCIETY (1978); THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d ed. 1970).
16 See generally JEROME BRUNER, ACTS OF MEANING (1990) (psychology); REID HASTIE ET AL., INSIDE THE JURY (1983) (same); SIMON SCHAMA, DEAD CERTAINTIES (1991) (history); HAYDEN WHITE, METAHISTORY: THE HISTORICAL IMAGINATION IN NINETEENTH-CENTURY EUROPE (1973) (same); RICHARD A. SHWEDER, THINKING THROUGH CULTURES: EXPEDITIONS IN CULTURAL PSYCHOLOGY (1991) (anthropology); SALLY E. MERRY, GETTING JUSTICE AND GETTING EVEN: LEGAL CONSCIOUSNESS AMONG WORKING-CLASS AMERICANS (1990) (same); Kim L. Scheppele, Foreword: Telling Stories, 87 MICH. L. REV. 2073 (1989) (sociology); Kim L. Scheppele, Just the Facts Ma'am: Sexualized Violence, Evidentiary Habits, and the Revision of Truth, 37 N.Y. L. SCH. L. REV. 123 (1992) (same).
17 See generally RICHARD J. BERNSTEIN, BEYOND OBJECTIVISM AND RELATIVISM: SCIENCE, HERMENEUTICS, AND PRAXIS (1983) (philosophy); RICHARD RORTY, PHILOSOPHY AND THE MIRROR OF NATURE (1979) (same); JACQUES DERRIDA, MARGINS OF PHILOSOPHY (Alan Bass trans., University of Chicago Press 1982) (1972) (same); ON NARRATIVE (W.J.T. Mitchell ed., 1981) (literary criticism); WAYNE BOOTH, MODERN DOGMA AND THE RHETORIC OF ASSENT (1974) (same).
18 See generally W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM: JUSTICE AND JUDGMENT IN AMERICAN CULTURE (1981); BERNARD S. JACKSON, LAW, FACT AND NARRATIVE COHERENCE (1988); Lawyering Theory Symposium: Thinking Through the Legal Culture, 37 N.Y. L. SCH. L. REV. 9 (1992).
19 See, e.g., Jerome Bruner, A Psychologist and the Law, 37 N.Y. L. SCH. L. REV. 173 (1992). Stories are so compelling and useful a way of representing deviations from expectancy in the world that cultures typically include a good stock of them in their tool kit of ready mades. This tool kit is . . . used incessantly. Studies of white, working-class families in Baltimore show, for example, that children who hang around adult conversations are exposed to real-life narratives at the rate of about six per hour. . . . Id. at 176 (footnote omitted).
20 ISOCRATES, Antidosis, in ISOCRATES II 334–35 (T.E. Page et al. eds., & George Norlin trans., Loeb Classical Library 1929) (n.d.). For since it is not in the nature of man to attain science by the possession of which we can know positively what we should do or what we should say, in the next resort I hold that man to be wise who is able by his powers of conjecture to arrive generally at the best course, and I hold that man to be a philosopher who occupies himself with the studies from which he will most quickly gain that kind of insight. Id. at 334–35.
21 GIAMBATTISTA VICO, ON THE STUDY METHODS OF OUR TIME 13 (Donald Verene & Elio Gianturco trans., Cornell Univ. Press 1990) (1709). It was Vico who also said: “It often happens that people unmoved by forceful and compelling reasons can be jolted from their apathy, and made to change their minds by means of some trifling line of argument.” Id. at 15.
22 See, e.g., Susan H. Williams, Legal Education, Feminist Epistemology, and the Socratic Method, 45 STAN. L. REV. 1571, 1574 (1993) ( “Knowledge can be understood as a social practice deeply embedded in a particular culture. . . . One's position in a social framework will have profound effects on what one knows and the path by which one comes to know it, and no social position can claim access to some undistorted truth.”); Peggy C. Davis, Law and Lawyering: Legal Studies with an Interactive Focus, 37 N.Y. L. SCH. L. REV. 185 (1992).
23 See, e.g., DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991); Robin D. Barnes, Race Consciousness: The Thematic Content of Racial Distinctiveness in Critical Race Scholarship, 103 HARV. L. REV. 1864, 1865 (1990); see also Sandra D. O'Connor, Thurgood Marshall: The Influence of a Raconteur, 44 STAN. L. REV. 1217, 1217–20 (1992).
24 Peggy C. Davis, The Proverbial Woman, 48 REC. ASS'N B. CITY N.Y. 7, 7 (1993); see WILLIAM TWINING, RETHINKING EVIDENCE 223 (1990) (“ ‘A story is a narrative of particular events arranged in a time sequence and forming a meaningful totality.’ ” (citing Paul Ricoeur)).
25 See Donald P. Spence, Narrative Smoothing and Clinical Wisdom, in NARRATIVE PSYCHOLOGY: THE STORIED NATURE OF HUMAN CONDUCT 211 (Theodore R. Sarbin ed., 1986).
26 See generally Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 YALE L. J. 1329 (1991); Lynne N. Henderson, Legality and Empathy, 85 MICH. L. REV. 1574 (1987); Richard K. Sherwin, Dialects and Dominance: A Study of Rhetorical Fields in the Law of Confessions, 136 U. PA. L. REV. 729 (1988); Richard K. Sherwin, Lawyering Theory: An Overview—What We Talk About When We Talk About Law, 37 N.Y. L. SCH. L. REV. 9, 17 nn. 17–20 (1992); Anthony G. Amsterdam & Randy Hertz, An Analysis of Closing Arguments to a Jury, 37 N.Y. L. SCH. L. REV. 55, 64–65, 65 n. 23, 95–96, 96 nn. 111–12, 112 n. 145 (1992) (on myth and drama and metaphor).
27 See generally JOHN M. CONLEY & WILLIAM M. O'BARR, RULES VERSUS RELATIONSHIPS: THE ETHNOGRAPHY OF LEGAL DISCOURSE (1990); Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519 (1991) (analyzing how jurors make stories out of evidentiary fragments).
28 Willem J. Witteveen, Doctrinal Stories, 6 INT'L J. SEMIOTICS L. 179 (1993).
29 See generally Clark D. Cunningham, A Tale of Two Clients: Thinking About Law as Language, 87 MICH. L. REV. 2459 (1989); Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 BUFF. L. REV. 1 (1990).
30 See generally Symposium, Lawyers as Storytellers & Storytellers as Lawyers: An Interdisciplinary Symposium Exploring the Use of Storytelling in the Practice of Law, 18 VT. L. REV. 565 (1994); see also Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807 (1993); Jane B. Barron, Resistance to Stories, 67 S. CAL. L. REV. 255 (1994)
31 See infra notes 59–63 and accompanying text (describing typical schemata and scenarios as mental blueprints for how a particular kind of event plays out in life).
32 See, e.g., JEROME BRUNER, ACTUAL MINDS, POSSIBLE WORLDS 29 (1986) [hereinafter ACTUAL MINDS].
33 See, e.g., Jerome Bruner, The Narrative Construction of Reality, 18 CRITICAL INQUIRY 1, 29 (1991) [hereinafter The Narrative Construction of Reality].
34 Miranda v. Arizona, 384 U.S. 436 (1966).
35 For a fuller development of this theme, see Richard K. Sherwin, Law Frames: Historical Truth and Narrative Necessities in a Criminal Case, 47 STAN. L. REV. (forthcoming 1994) [hereinafter Law Frames].
36 Prohibitions Del Roy, 77 Eng. Rep. 1342, 1343 (K.B. 1608).
37 Charles Fried, The Artificial Reason of the Law or: What Lawyers Know, 60 TEX. L. REV. 35 (1981).
38 All those litigators and jurors who at one time were beguiled viewers of that brilliant trial attorney, Perry Mason, know that in the final moment of artful cross-examination the confession will come and truth will dissolve any antecedent mystery. See generally Steven D. Stark, Perry Mason Meets Sonny Crockett: The History of Lawyers and the Police as Television Heroes, 42 U. MIAMI L. REV. 229 (1987). Jeremiah Donovan also mentioned this in his speech at the Symposium. See also TZVETAN TODOROV, INTRODUCTION TO POETICS 41 (Richard Howard trans., University of Minn. Press 1981) (1968) (“Most works of fiction of the past are organized according to an order that we may qualify as both temporal and logical; let us add at once that the logical relation we habitually think of is implication, or as we ordinarily say, causality.”); Herbert Morris, The Decline of Guilt, 99 ETHICS 62 (1988). Among law's clearest lessons are that norms exist and that they are to be taken seriously. These in turn provide reassurance that our social world is orderly and not chaotic, that it is a structured space in which not everything is permitted, where there are limits to conduct, a role for rational argumentation over who has crossed these limits, and, equally important psychologically, that closure exists as a possibility once these limits have been breached. Morris, supra, at 69; see also Law Frames, supra note 35.
39 It may be that one of the great functions of the law is to propagate a continued belief in certitude and closure so that justice may be done. See Morris, supra note 38. This is, perhaps, our own “noble lie,” according to which the truth (of uncertainty) must be suppressed for the sake of a greater truth (the possibility of justice). See RENE GIRARD, VIOLENCE AND THE SACRED (Patrick Gregory trans., Johns Hopkins Univ. Press 1977) (1972) (on scapegoating).
40 See ACTUAL MINDS, supra note 32, at 12; see also The Narrative Construction of Reality, supra note 33, at 19; CARLO GINZBURG, CLUES, MYTHS, AND THE HISTORICAL METHOD 106–17 (John & Anne Tedeschi trans., Johns Hopkins Univ. Press 1989) (1986) (referring to the Galilean method of proof); VON WRIGHT, supra note 1.
41 See generally Amsterdam & Hertz, supra note 26.
42 See generally id.
43 Compare, for example, Justice Blackmun's empathic and emotional narrative in his dissent in DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189 (1989), with Justice Rehnquist's imperative, syllogistic interpretation of relevant case law in the same case. According to Justice Rehnquist: “[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” Id. at 195. In contrast, Justice Blackmun states: Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes . . . “dutifully record[ ] these incidents in [their] files.” Id. at 213 (Blackmun, J., dissenting) (citation omitted).
44 See, e.g., Richard J. Gerrig & Deborah A. Prentice, The Representation of Fictional Information, PSYCHOL. SCI., Sept. 1991, 336, 336–40; Daniel S. Bailis et al., The Influence of Fictional Information on Beliefs About the Real World (May 1, 1993) (paper on file with author); WAYNE C. BOOTH, THE COMPANY WE KEEP: AN ETHICS OF FICTION 16 (1988) (“[W]e never read a story without making a decision, mistaken or justified, about the implied author's answer to a simple question: Is this ‘once-upon-a-time’ or is it a claim about events in real time?”).
45 See, e.g., SERGEI M. EISENSTEIN, THE FILM SENSE (Jay Leyda ed. & trans., 1975) (1942). The task that confronts [the film director] is to transform [the director’s inner] image into a few basic partial representations which, in their combination and juxtaposition, shall evoke in the consciousness and feelings of the spectator, reader, or auditor, that same initial general image which originally hovered before the creative artist. Id. at 30–31.
46 To the TV generation, starting perhaps with the post-J.F.K. assassination crowd, the aesthetic jolt coming off the crime left unsolved (as frequently is the case in contemporary television shows involving criminals, police, and lawyers) may surpass the one coming off the fact of resolution. In this way, we see that popular storytelling fashions mimic, in form and in substance, a mood of uncertainty and disillusionment in the popular culture. As novelist Don DeLillo recently stated in an interview about the assassination of J.F.K.: We still haven’t reached any consensus on the specifics of the crime: the number of gunmen, the number of shots . . . the list goes on and on. Beyond this confusion of data, people have developed a sense that history has been secretly manipulated. . . . I think we’ve developed a much more deeply unsettled feeling about our grip on reality. Anthony DeCurtis, “An Outsider in This Society”: An Interview with Don DeLillo, S. ATLANTIC Q., Spring 1990, at 281, 286.
47 See, e.g., ACTUAL MINDS, supra note 32, at 28; Amsterdam & Hertz, supra note 26, at 104–10, 105 n. 129, 106–07 nn. 134–35.
48 Charles Hagen, The Power of a Video Image Depends on the Caption, N.Y. TIMES, May 10, 1992, § 2, at 32.
49 See, e.g., The Narrative Construction of Reality, supra note 33, at 16 (“The normativeness of narrative, in a word, is not historically or culturally terminal. Its form changes with the preoccupations of the age and the circumstances surrounding its production.”).
50 Cf. AL RIES & JACK TROUT, POSITIONING: THE BATTLE FOR YOUR MIND 5 (rev’d ed. 1986) (“To be successful [in advertising] today, you must touch base with reality. And the only reality that counts is what’s already in the prospect’s mind.”); see also Symposium, Power Advocacy: Achieving Maximum Jury Impact During Trial, N.Y. ST. B. ASS’N, Oct. 15, 1993, at 3 (featuring a presentation entitled “Opening Statement: Lessons from L.A. Law”). Litigators have conceded (albeit off the record) that they have been influenced by the style and techniques of “L.A. lawyering.”
51 See, e.g., HAYDEN WHITE, THE CONTENT OF THE FORM: NARRATIVE DISCOURSE AND HISTORICAL REPRESENTATION 75 (1987) (“One must face the fact that when it comes to apprehending the historical record, there are no grounds to be found in the historical record itself for preferring one way of construing its meaning over another.”); RICHARD RORTY, CONTINGENCY, IRONY, AND SOLIDARITY 20 (1989) (“[T]he world does not provide us with any criterion of choice between alternative metaphors, . . . we can only compare languages or metaphors with one another, not with something beyond language called ‘fact.’ ”); Martin Jay, Of Plots, Witnesses, and Judgments, in PROBING THE LIMITS OF REPRESENTATION: NAZISM AND THE “FINAL SOLUTION” 97, 101 (Saul Friedlander ed., 1992) [hereinafter PROBING THE LIMITS] (“If postmodernism means anything, it implies the abandonment of precisely the dream of submitting to the exigencies of pure language or pure vision.”).
52 See, e.g., Anton Kaes, Holocaust and the End of History: Postmodern Historiography in Cinema, in PROBING THE LIMITS, supra note 51, at 206, 208–12 (“I believe that Hans-Jürgen Syberberg’s controversial seven-hour film of 1978, self-consciously entitled Hitler—A Film from Germany, represents one of the few attempts to come to terms with the Nazi phenomenon in a way that challenges Hollywood story-telling. . . .”) Id. at 208–09. “Syberberg is interested less in constructing history as a story with cause and effect (thereby implying a logical development that can be ‘understood’) than in presenting constellations and associations that surprise and shock the audience.” Id. at 210. Syberberg’s translation of historical reality into a self-sufficient cosmos of signs, intertexts, quotations, allusions, memories, and associations gives him the freedom to encode German history in a variety of specular forms: as circus spectacle and horror cabinet; as puppet theater, cabaret, and side show; as tribunal; and as allegorical, baroque theatrum mundi. The central project of the film is not the representation of Hitler himself but the representation of the various ways in which Hitler has been represented. Id. at 211–12.
53 See, e.g., Philip N. Meyer, “Desperate for Love”: Cinematic Influences upon a Defendant’s Closing Argument to a Jury, 18 VT. L. REV. 721; Jeremiah Donovan, Some Off-the-Cuff Remarks About Lawyers as Storytellers, 18 VT. L. REV. 751.
54 See Law Frames, supra note 35.
55 See CLIFFORD GEERTZ, Thick Description: Toward an Interpretive Theory of Culture, in THE INTERPRETATION OF CULTURES 3, 9 (1973) (describing “thick” descriptions in anthropology as “sorting out the structures of signification . . . and determining their social ground and import.”).
56 See, e.g., Ronald K.L. Collins & David M. Skover, Paratexts, 44 STAN. L. REV. 509, 510 (1992) (“We live in an era of ‘paratexts,’ in which words and images, as captured by electronic recording, compete with print to represent legally significant events.”); JAMES B. TWITCHELL, CARNIVAL CULTURE: THE TRASHING OF TASTE IN AMERICA 51 (1992) (“What characterizes the condition of culture since World War II is . . . that now we have more signs than referrents, more images than meanings that can be attached to them. The machinery of communication often communicates little except itself—signs just refer to each other, creating a ‘simulacra’ of reality.”); JEAN BAUDRILLARD, FATAL STRATEGIES (Jim Fleming ed., Philip Beitchman & W.G.J. Niesluchowski trans., Semiotext(e) 1990) (1983). What fascinates everyone is the debauchery of signs, that reality, everywhere and always, is debauched by signs. This is the interesting game, and this is what happens in the media, in fashion, in publicity and more generally, in the spectacle of politics, technology, science . . . because the perversion of reality, the spectacular distortion of facts and representations, the triumph of simulation is as fascinating as catastrophe— and it is one, in effect. . . . BAUDRILLARD, supra, at 74.
57 See, e.g., DORIS-LOUISE HAINEAULT & JEAN-YVES ROY, UNCONSCIOUS FOR SALE: ADVERTISING, PSYCHOANALYSIS, AND THE PUBLIC 55 (Kimball Lockhart & Barbara Kerslake trans., University of Minn. Press 1993) (1984). It is abundantly clear that the acquisition of certain goods above all does not depend on intellectual arguments; it is motivated instead by power or by narcissistic or phallic libido. In some cases the advertising message offers a range of intellectual arguments that can be used as camouflage or rationalizations. Id. at 55–56. In contrast to more conventional, straightforward, rational, causally-sequenced forms of persuasion, the use of isolated images appeals to a distinctly non-linear, acausal cognitive process (such as the subconscious mobilization of desire). See Law Frames, supra note 35. Recent developments in chaos theory may also provide some useful insights here. According to this theory, small differences can, after a number of repetitions, contribute to disproportionate effects down the road. Applying chaos theory’s non-linear approach to law, one might say that just as a butterfly’s wing flutter in China may produce a hurricane in Florida, so, too, a defendant’s inappropriate smile in the course of a criminal trial might create the cognitive armature around which jurors weave a story of guilt. See generally JAMES GLEICK, CHAOS: MAKING A NEW SCIENCE (1987); DRAGAN MILOVANOVIC, POSTMODERN LAW AND DISORDER: PSYCHOANALYTIC SEMIOTICS, CHAOS AND JURIDIC EXEGESES (1992).