Reshaping the Narrative Debate

• Publication year: 2011

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 34, No. 3SPRING 2011

Reshaping the Narrative Debate

Nancy Levit(fn*)

In Reshaping the Work-Family Debate: Why Men and Class Matter, Joan Williams sets out to alter the terms of the public discussion about working, caregiving, and work-family conflicts.(fn1) Other participants in this Colloquy discuss the ways in which she does a tremendous job of accomplishing this objective.(fn2) Whether she intends it or not,(fn3) Williams does something else that is extremely significant: she reframes part of the conversation about the use of narratives in legal analysis and policy-making.

This Essay describes the debate about narrative, or storytelling, in the legal academy. Two decades ago, a pitched jurisprudential battle surfaced in the pages of law reviews about the value of storytelling as legal scholarship.(fn4) Since that time, narrative has sifted into academic texts in myriad ways; people are telling stories all over the place.(fn5) Importantly also, research is emerging in cognitive neuroscience about the value of stories to human comprehension.(fn6) And law schools are beginning to consciously recognize that part of what they do is to train storytellers.(fn7)

Another narrative phenomenon has also become more pronounced during this same time frame. The overwhelming majority of the information people acquire comes from press accounts rather than reading original materials. The media have a singular ability to prioritize public issues and mold perceptions. Thus, press-constructed stories have become an increasingly powerful tool impelling or obstructing policy change. Stories such as the "boy crisis in education,"(fn8) "global cooling,"(fn9) and the "litigation explosion"(fn10) capture the public's attention, prompt policy discussions, and at times spur legislation. It is this aspect of narrative for which Joan Williams's methods are particularly illuminating. In the first several chapters of her book, she unpacks the "opt-out narrative" created by the press-the story that says women are choosing to leave the fast track of professional advancement in favor of stay-at-home motherhood. Her methodology of empirically interrogating this storyline is incredibly valuable for academics wondering what to do about media mythology.

Part I of this Essay describes the history of the debate about the value of narrative as legal scholarship. Part II examines the explosion of stories and attention to storytelling both inside and outside the legal academy. It also reviews emerging evidence from cognitive neuroscience about the importance of stories to the ways humans understand the world. In Part III, the Essay centers on media-created narratives and focuses on Joan Williams's instructive methodology for interrogating press-constructed myths. Moving from dismantling to reconstruction, Part IV circles back to the importance of stories-and the ways academics can develop counternarratives that can help reshape public understandings about work, families, and fairness.

I. The Storytelling Debate in the Legal Academy

More than twenty years ago, some groundbreaking theorists in the legal academy made a case for legal scholarship to incorporate the sto-ries-the lived experiences-of outsiders.(fn11) Neutral legal principles, they observed, were not really neutral; those legal rules encompassed racist and sexist norms. Traditional scholarship for centuries had excluded the perspectives of subordinated groups-voices from "the bottom."(fn12)

The stories contributed by feminists and critical race theorists found a home in some of the most prestigious law reviews in the country. They revealed the types of discrimination faced by people outside the mainstream-biases associated with dress, language, accent, or "foreign-ness."(fn13) The stories described the experiences of a black man who was prohibited from buying a suburban home even though he could afford it.(fn14) They told about the brutality of police intimidation(fn15) and the phenomenon of Driving While Black.(fn16) The stories illuminated stereotypes of third- and fourth-generation Asian-Americans: "You speak such good English."(fn17) They told of maternal-wall discrimination: the attorney who returned from maternity leave and was given the work of a paralegal, and who said, "I had a baby, not a lobotomy."(fn18) Gay and lesbian legal theorists told stories too, so that their relationships would no longer be invisible in law-such as stories of losing a "domestic partner" in the 9/11 tragedy and the need for workers' compensation benefits for the family.(fn19) Personal stories like these enriched understandings of the situations of disempowered people.(fn20)

The storytelling movement met major resistance from traditional theorists. Stories, said opponents, are not an appropriate methodology of legal scholarship. One of the primary critiques was that stories posed problems of reliability and validity: stories are, in many respects, nonfal-sifiable, and they might not be representative of universal experiences.(fn21) To the extent that they describe personal experiential truths, the argument went, personal stories contain subjective impressions and cannot be verified.(fn22) Opponents also argued that stories are not analytical-they present a one-sided, emotionally painted view of a situation.(fn23) Other skeptics suggested something of the opposite-that narratives even failed on the psychological front because outsiders did not have a unique pers-pective.(fn24) In the view of objectors, stories were irrational, emotional, un-verifiable, and incendiary.

What was the outcome of the narrative battle over the past couple of decades? In important dimensions, stories changed the way legal academics thought about scholarship. People in the legal academy began to understand something scholars in other disciplines had known for a long time-that people comprehend events in narrative form.(fn25) Storytelling became part of a reconstructive project of reimagining law. The next part of this Essay turns to the ways narrative is now both embedded and blossoming in legal theory.

II. It's Stories, All the Way Down

Philosopher William James once explained what an "absolute moralist" believed by describing a series of rocks, one rock resting atop another foundational one: "it was rocks all the way down."(fn26) A perhaps apocryphal story growing out of this, maybe influenced by Hindu cosmology, which posits that the Earth rests on the back of a giant turtle (and probably promoted by Dr. Seuss's Yertle the Turtle), is that "[i]t's turtles all the way down."(fn27) This metaphor became important in jurisprudence circles when critical legal studies scholars began to explain how power worked.(fn28) It is an explanation that applies to narrative as well. Everyone tells stories: People in power tell stories too. It's stories all the way down.

A. The Narrative Explosion

In the past several decades, stories have sifted into the ways we think about and practice law. Just as judges, legislators, and legal educators began to pay attention to stories and narrative theory, jurisprudential theorists of many different types also warmed to stories. Stories changed the language of legal discourse. Some law review articles, legal decisions, books, and other legal texts moved from a formal, objective, depersonalized style to first-person narration or conveying experiential in-sights.(fn29) Even statutes began to be named for crime victims-and represent their stories-rather than for their legislative sponsors.(fn30)

Narratives have encouraged law reform in many different do-mains.(fn31) Victims of intimate-partner violence have shared their stories- and in so doing have reframed the prevailing image of domestic-violence victims. There is now room for women who do not fit the stereotype of the "passive, middle-class white woman"-i.e., women who fight back- to have their situations understood.(fn32) At criminal sentencing hearings, victim impact statements can tell the stories of the effects of horrific crimes on the victims.(fn33) Reciprocally, death-penalty narratives have told the stories of capital defendants who had extreme mental impairments or inadequate legal representation and sometimes were not guilty the old-fashioned way: they didn't commit the crime.(fn34) Personal narratives have been used very effectively to urge changes in legal doctrine.

Legal educators began to realize that storytelling was among the skills they were training. Lawyers are raconteurs: they construct stories and tell them to other lawyers and to decision-makers. The Carnegie Report calls for more and better training of law students in the skills of narrative thinking and storytelling.(fn35) Students need to understand narrative theory-that they will make choices about what facts matter and how to tell stories persuasively-and they need practice in telling sto-ries.(fn36) Law professors have begun to write about ways to help students learn how to incorporate narrative techniques into brief writing and oral advocacy.(fn37) and to encourage students to think about the ethical implications of how they will frame clients' stories.(fn38)

In the mid-1990s, Martha Minow and Austin Sarat developed a series for the University of Michigan Press, Law, Meaning, and Violence, to illuminate the ways the stories of law create meanings and social norms.(fn39) A cascade of books containing legal...