The Meaning of Words

Philip A. Rubin, Duke University Law School, has published War of the Words: How Courts Can Use Dictionaries in Accordance with Textualist Principles, at 60 Duke Law Journal 167 (2010). Here is the abstract.

Dictionaries have an aura of authority about them--words mean what the dictionary says they mean. It therefore seems only sensible that courts seeking the plain meaning of language would look to dictionaries to find it. Yet to employ dictionaries as objective sources of meaning is to use them in a manner inconsistent with their creation and purpose. Previous scholarship has identified the Supreme Court’s increasing reliance on dictionaries in construing statutes and constitutional provisions, and several articles have discussed different inherent problems with this practice. This Note builds upon that scholarship by bringing together the problems identified in prior articles, by identifying additional problems, and by proposing a set of best practices for courts seeking to use dictionaries in a manner consistent with textualist principles. Unless a principled approach is adopted, judges invoking dictionaries in textualist analysis are open to criticism for, at best, using dictionaries incorrectly - and, at worst, using them to reach their preferred outcomes.

Download the note from SSRN at the link.

Documentary Films, Law and Justice

Cynthia D. Bond, The John Marshall Law School, has published Documenting Law: Reality & Representation on Trial. Here is the abstract.

Documentary films frequently address issues of social and political injustice; thus, however indirectly, implicating law as their subject. Documentary film and legal process also frequently share formal similarities as they both seek to reconstruct actual events through representational techniques. Thus, notions of the truth are deeply overdetermined in documentary films about law. To most lay spectators, such documentaries are truth-seeking systems (documentary film) depicting a truth-seeking system (law). Thus, it is particularly useful to analyze the impressions of law lay spectators gain (or confirm) from these films since, given the truth claims of documentaries, spectators may more fully trust images of law in them than in fiction film. Documentaries engage different strategies in ignoring, negotiating, or acknowledging the overdetermined sources of truth they contain. First, many documentaries mount a competing narrative of truth, contesting the ability of legal processes to adequately find the truth (a dynamic this article dubs “Film vs. Law”). Alternatively, documentaries may contest law’s truth claims without fully supplanting them with their own purportedly superior access to truth (“Film and Law”). These films both critique the truth claims of the legal process while acknowledging the inevitably open-ended and provisional nature of the events they reference. Finally, documentaries may underline the shared representational techniques of law and film to reveal the vexed nature of accessing the truth in both realms (“Film = Law”). These three documentary strategies are defined in part by the stylistic choices the films make, and by the on- and off-screen performance of the filmmaker’s relationship with his or her subject. Yet regardless of a particular documentary film style, the notion of the truth of depicted events is an inescapable element of the documentary narrative.

Download the full text from SSRN at the link.

Storytelling in the Law School Curriculum

Carolyn Grose, William Mitchell College of Law, has published Storytelling Across the Curriculum: From Margin to Center, from Clinic to the Classroom in volume 7 of the Journal of the Association of Legal Writing Directors (2010).

Narrative theory and storytelling can be used throughout the law school curriculum, cutting across types of courses and types of lawyering. I teach skills, doctrinal, and clinical courses, and I use narrative theory and storytelling in all three, always with the same goal: to help students recognize that as lawyers, they are not only hearers and tellers of stories, but also, and perhaps most important, constructors of stories.

I use the term “narrative theory” to describe the study of story construction, which is different from - though clearly related to - story telling. Construction is the act of building: putting together the elements that comprise the story and then writing it down. Performance of the story - reading it, telling it, enacting it - comes later.

In this piece, I develop the idea of using storytelling across the curriculum to teach students critical thinking and reflection about their role as lawyers. In Part One, I describe the importance of storytelling and stories in the craft of lawyering. Part Two describes my own teaching in the context of narrative theory and practice, and it analyzes how and why this context achieves the goal of developing students’ critical thinking skills and reflective practice. The piece concludes with the suggestion that narrative theory and storytelling as a pedagogy used systematically across individual courses and the curriculum has the potential to transform a student’s experience of law school, resulting in her development as an empowered, reflective, and socially responsible member of the legal profession, regardless of the kind of law she practices or the kinds of clients she represents.

Download the article from SSRN at the link.

Judges and Storytelling

Kenneth D. Chestek, Indiana University, Indianapolis, has published Judging by the Numbers: An Empirical Study of the Power of Story in volume 7 of the Journal of the Association of Legal Writing Directors (2010). Here is the abstract.

This article focuses on the question of whether appellate judges are actually influenced by the stories of the litigants who appear before them. Part I will describe what I call the “DNA model of persuasion,” setting forth the hypothesis that logical argumentation, while a necessary part of persuasion, is not sufficient by itself and that using the form of a story to weave a pathos-based appeal into a brief will produce a more persuasive document. Part II of this article will describe a study that I devised and implemented to test whether appellate judges find story argumentation persuasive; Part III will present the results of the study. Part IV addresses possible objections to the validity of the test and the sample collected. Part V will begin an analysis of what the data might mean.

Among other things, I conclude that stories are indeed persuasive to appellate judges and others, but also that recent law school graduates are not as impressed by stories as more experienced lawyers (and judges) are. Finally, I suggest that stories are helpful because, properly done, they evoke emotional responses within the reader that make the legal claim seem more “real,” and hence believable, to the reader.

Download the article from SSRN at the link.

The Consequences of Imagery

Gregory Scott Parks, District of Columbia Court of Appeals, and Danielle C. Heard, Stanford University School of Humanities & Sciences, have published 'Assassinate the Nigger Apes' [1]: Obama, Implicit Imagery, and the Dire Consequences of Racist Jokes . Here is the abstract.

In 1994, Congress passed legislation stating that Presidents elected to office after January 1, 1997, would no longer receive lifetime Secret Service protection. Such legislation was unremarkable until the first Black President - Barack Obama - was elected. From the outset of his campaign until today, and likely beyond, President Obama has received unprecedented death threats. These threats, we argue, are at least in part tied to critics and commentators’ use of symbols, pictures, and words to characterize the Obama as a primate, in various forms - including cartoonist Sean Delonas’ controversial New York Post cartoon. Against this backdrop and looking to history, cultural critique, federal case law, as well as cognitive and social psychology, we explore how the use of seemingly harmless imagery may still be racially-laden and evoke violence against its object.

[1] Morgan v. McDonough, 540 F.2d 527, 531 (1st Cir.1976) (holding in a school desegregation case, that White students harassed Black students by chanting "assassinate the nigger apes"); see also infra notes 99 to 103 and accompanying text.

Download the paper from SSRN at the link.

Art and Legal Form

Andreas Philippopoulos-Mihalopoulos, The Westminster International Law and Theory Centre, University of Westminster,has published Repetition: Deleuze and Kierkegaard on Law, Justice and Art, in Law and Art (Oren Ben-Dor, ed; London: Routledge, 2010). Here is the abstract.

In the final stage of his career, Giorgio de Chirico produced an interminable series of almost identical paintings that copied and only partly developed his successful early metaphysical period style. This was less of a performance and more of an income-generating exercise based on the high demand for his metaphysical paintings, especially the ones of the Piazza d’Italia. Still, the practice amounted to the production of what de Chirico called ‘extremely exact variations’. This poses questions on whether repetition is capable of generating difference. From this perspective, I compare de Chirico’s obsessive repetition with the normative repetition in law. The text considers the edifice of the law as the repeating practice of normative production and questions whether this can be repetition in the sense of producing difference. In such an edifice, awnings of justice can be observed, artfully posited against the horizon, as awnings capturing spaces of transcendence. This connection between the edifice and the horizon is described here as the awnings of justice. The argument is substantiated through a discussion on Kierkegaard and Deleuze’s theories of repetition.

Download the essay from SSRN at the link.

Rights Talk in Science Fiction

Christine A. Corcos, Louisiana State University Law Center, has published Visits to a Small Planet: Rights Talk in Some Science Fiction Film and Television Series from the 1950s to the 1990s. It is forthcoming in the Stetson Law Review. Here is the abstract.

As early as the seventeenth century, authors, particularly satirists, used the travel essay as a means to examine and critique societies, including their own. If an artist’s government discouraged or banned political or social critique, he was necessarily forced to disguise his criticism as fiction - the more fanciful, the better. This practice has carried over to the genre of science fiction (SF).

While authors fictionalize many of the elements in SF to make their stories more exciting and bizarre, some elements have made a transition into popular culture because they resonate with the human popular imagination. As a result, many individuals believe that the elements actually exist. Among them are popular methods of alien transportation, such as the rocket (often pictured as the “rocket to Mars”), the flying saucer, and the alien being interested in making contact with a human, either for benign or (more often) nefarious purposes. The idea that an alien means to visit Earth in order to destroy the planet or to cause us harm is one that quickly becomes a theme in novels, films, and television beginning in the mid-twentieth century, fed by actual political and cultural events.

These ideas resonate with human imaginations or they are embraced by spiritual beliefs. Viewers’ familiarity with real life space travel, which increases plausibility as well as the maintenance of traditional SF memes, allow SF writers to use the genre’s conventions to continue to critique society.

SF authors continually use human beings as the yardstick by which to measure aliens. So, while such films and shows may seem to invite us, through the use of the alien lens, to critique human society, they actually invite us to re-examine human society from a different, albeit a human, perspective. As the genre critiques human society from two perspectives, SF is actually well suited to examine the issue of civil and human rights.

This Article examines the critique of human society’s development and use of such rights within a sampling of SF film and television programs from the 1950s to the 1990s. Part II analyzes the treatment of civil rights within the alien invasion and infiltration narratives of the time period. Part III discusses the transition from the foreign alien-invasion narrative to the domestic alien narrative and its effect on the treatment of civil rights. Part IV explores the civil rights issues represented in the friendly alien-visitor narrative of the 1960s television show My Favorite Martian. Part V examines the civil rights questions the late 1980s and early 1990s television series Alien Nation poses. Part VI analyzes the civil rights issues the 1990s television series 3rd Rock from the Sun raises.

Download the article from SSRN at the link.

Gender and Reproductive Rights Talk

Lia Alexandra Mandaglio, currently a law student at the George Washington Law School, has posted Speaking Across the Divide: A Functional Grammar Analysis of Feminist and Masculist Reproductive Rights Rhetoric in the United States on SSRN. Here is the abstract.

This paper applies Systemic Functional Grammar and Critical Discourse Analysis to assess the linguistic choices of feminist and masculist reproductive rights rhetoric in the United States. It explains these methodologies and provides a discursive history of the reproductive rights movement. Publications of advocacy groups and the mass media are analyzed as data of current rhetorical trends. These interpretations conclude that female-affirmative rhetoric offsets contemporary feminist efforts by marginalizing men and excluding considerations of paternity. This paper suggests that in solely emphasizing women’s procreative rights, such feminist rhetoric potentially renders women to the role of primary parental agent, reinforces traditional sex-stereotypes, and incites inter-sex antagonism.

Download the paper from SSRN at the link. Ms. Mandaglio is also the author of earlier interesting work, including Hannah More, the Conventionalist, and Mary Robinson, the Radical: Differing Feminist Perspectives on 19th Century Women's Progress, Purity and Power, 2 Lethbridge Undergraduate Research Journal (2007).

And check out this odd "6 Degrees of Kevin Bacon" sort of connection. I blogged about Hudson Taylor, the wrestler/magician elsewhere a few weeks ago, based on a piece in the Washington Post, without paying any particular attention to the name or occupation of his fiancee. As I did a search on Ms. Mandaglio's name while preparing this post to turn up what else she might have written, what other info should appear but yes--that article about Hudson Taylor, the wrestler/magician, and his fiancee, Lia Mandaglio, GW law student. Ah, magicology!

Law-As-Story

Palma Strand, Creighton University School of Law, has published "Law as Story: A Civic Concept of Law," at 18 Southern California Interdisciplinary Law Journal 603 (2009). Here is the abstract.

This article introduces a social constructionist civic concept of law, which emphasizes the story nature of law and the fact that as a complex social system law emerges from and is grounded in collaborative communications among citizens. In this view, if the law-story reflects the stories of a broad range of those for whom it purports to speak and acknowledges their agency in enacting it, it is more likely to be embraced by that community.

In applying the law-as-story complex social system approach to law to the doctrinal issue of political gerrymandering, the article explores the concept of voice - individuals making meaningful contributions to the law-story. In applying the approach to the doctrinal issue of race-based K-12 educational initiatives, the article illuminates the idea of resonance, the complement of voice, which captures the process of the law-story coming back to the individuals within a community.

Download the article from SSRN at the link.

Legal Language and Its Meaning

Andrei Marmor, USC Gould School of Law, has published "Can the Law Imply More than it Says? On Some Pragmatic Aspects of Strategic Speech," as USC Law Legal Studies Paper No. 09-43. Here is the abstract.

The content of the law is often determined by what legal authorities communicate. Both lawyers and philosophers of language know very well, however, that the full content of communication in a natural language often goes beyond the meaning of the words and sentences uttered by the speaker. Semantics and syntax are essential vehicles for conveying communicative content, but the content conveyed on particular occasions of speech is often pragmatically enriched by various factors. The standard model in the pragmatics literature, however, focuses on ordinary conversations, in which the parties are presumed to engage in a cooperative exchange of information. The legal context offers an example of conversation that is strategic in nature. Part of my purpose here is to show that the pragmatics of strategic conversation has certain features that deviate from the standard model.

The first section focuses on two main instances of implied communicative content, namely, implicatures and utterance presuppositions. I argue that in both of these cases, there is an important distinction between implied content that is semantically encoded in the utterance - and therefore forms part of what the law communicatively determines - and implied content that is essentially contextual and thus much more problematic in the legal case. In the second section I focus on the idea of pragmatic commitments and their normative foundations. My main concern here is to explore the normative framework of strategic speech and ways in which it differs from ordinary conversations. Finally, I will try to explain in what sense legal speech is strategic, and demonstrate how the pragmatic aspects of strategic speech actually work in the legal context.

Download the paper from SSRN at the link.

Juries and Narrative

John M. Conley, University of North Carolina, Chapel Hill, School of Law, and Robin H. Conley, UCLA Department of Anthropology, have published "Stories from the Jury Room: How Jurors Use Narrative to Process Evidence," at 49 Studies in Law, Politics, & Society 25 (2009). Here is the abstract.

This paper analyzes the ways in which jurors use everyday storytelling techniques in their deliberations. It begins by reviewing the literature on how jurors receive and process evidence, emphasizing narrative and storytelling. It then presents some new, qualitative linguistic data drawn from actual jury deliberations, which shed light on jurors' standards of evidence and proof, as well as on the persuasive tactics they use in dealing with each other. Although these data are limited, they provide an interesting basis for assessing existing ideas about jury evidence-processing and thinking more broadly about the strengths and weaknesses of the jury system.

Download the article at the link.

Translation, Comparative Law, and Localism

P. G. Monateri, University of Turin School of Law has published "'Cunning Passages': Traductology, Comparison and Ideology in the Law and Language Story." Here is the abstract.

My standpoint in this paper is that in affording the subject of Law and Language we face a mass of “local issues”, and “local puzzles”, but that we still lack a theory to grasp with the bulk of the matter. Al this becomes peculiarly embarrassing in the age of development of “English-only” movements, and facing the rise of a rather new and framed field of studies like “traductology” that would of course, but do not actually, interplay with comparaison especially in the field of Law. In my paper I just try to look around the package of some received ideas, in order to clean the blackboard before trying to build up something newer. Thus in the first section I cope with two prevailing theories: 1.) the theory of the language as a “social glue”, which is dominant and emerging from the present American political debate; 2.) the theory of the “analogy” between Law and Language as spontaneously ordered complex phenomena; then in a second section I try to trace back these ideas in the time of the “Birth of Comparativism” in the early 19th century. In so doing i deal with: 1.) the birth of Indo-European Family in Comparative Linguistics, and, 2.) the birth of Legal Comparativism within the context of the German Legal Historicism, in the same span of time. Finally I try to show how all these conceptions are nested details of a more general consciousness with broad political implications in terms of projects of governance. Then according to my views neither language studies nor traductology can be treated as pure subject deprived of a strong political commitment. Both are field where “choices for candor” are not at hand.

Download the paper at the link.

Law, Text, Terror

Ian Ward, University of Newcastle upon Tyne, Faculty of Law, has published Law, Text, Terror, forthcoming from Cambridge University Press. Here is the abstract.

The relationship between law and terrorism has re-emerged recently as a pressing issue in contemporary jurisprudence. Terrorism appears to take law to its limit, whilst the demands of counter-terrorism hold the cause of justice in contempt. At this point the case for engaging alternative intellectual approaches and resources is compelling. Ian Ward argues that through a closer appreciation of the ethical and aesthetical dimensions of terror, as well as the historical, political and cultural, we can better comprehend modern expressions and experiences of terrorism. For this reason, alongside juristic responses to modern expressions of terrorism, Law, Text, Terror examines a variety of supplementary literary texts as well as alternative intellectual approaches; from the drama of Euripides and Shakespeare, to the rhetoric and poetry of Burke and Shelley, the literary feminisms of Lessing and Rame, and the narrative existentialism of Conrad, Coetzee, Dostoevsky and DeLillo.

Oh, That Arnold!

From NPR, this story about a possible coded message from the Office of Governor Arnold Schwarzenegger to California State Assemblyman Tom Ammaino. Reporter Melissa Block asks an expert cryptographer for assistance.

Storytelling Across the Curriculum

Carolyn Grose, William Mitchell College of Law, has published "Storytelling Across the Curriculum: From Margin to Center, from Clinic to the Classroom," as NYLS Clinical Research Institute Paper No. 09/10 #3. Here is the abstract.

Narrative theory and storytelling have emerged as threads in legal scholarship steadily over the past 20 years. Beginning in the late ‘80s and early ‘90s, the 'Legal Storytelling' movement sought to acknowledge and include the voices of 'outsiders' in legal scholarship and dialogue. More recently, the 'Applied Legal Storytelling' movement has emerged as scholars encourage each other to use storytelling to enhance their understanding of particular skills lawyers practice, and how to improve those skills. Scholars in the 'Law and Literature' movement explore the uses of literature to help lawyers stay connected to their imaginations, to their creativity, and to their humanity. Each of these scholarly movements has led to, or grown out of, professors’ experiments with using particular kinds of narrative theory and storytelling as part of their pedagogy.

In clinical teaching and scholarship, storytelling has always assumed pride of place for all of these reasons: to help students hear and incorporate the voices of 'outsiders' as they engage in and practice various lawyering skills, and to challenge them to think creatively and compassionately about their case strategy and practice. Lucie White’s 'Sunday Shoes' piece and Binny Miller’s 'Give Them Back Their Lives' are just two examples of narrative theory and storytelling practice that many clinical teachers use either explicitly or behind the scenes in their supervision or seminar teaching.

I believe narrative theory and storytelling can be used even more fundamentally, cutting across types of courses and types of lawyering. I teach skills, doctrinal and clinical courses, and I use narrative theory and storytelling in all three, all with the same goal: to help students recognize that as lawyers, they are not only hearers and tellers of stories, but also, and perhaps most important, constructors of stories. And that, simply put, is what I mean by narrative theory. The practice of storytelling is the craft of constructing stories, based on choices made with intention and reflection by the lawyer and her client. A pedagogy that relies on this theory and practice leads students to realize that The Law itself is a set of stories that have been adopted by decisionmakers, and that those stories have been constructed by none other than lawyers, just like themselves.

My particular pedagogy relies on an exploration of both narrative theory and the practice of storytelling. Most, if not all, of my classes - regardless of their official content - involve discussions about what stories are and what makes them 'good' (persuasive, compelling), both substantively (the 'what' of the story) and technically (the 'how' of the story). That’s the narrative theory. In addition, my students spend a lot of time constructing and deconstructing stories, focusing on their elements - both the 'what' and the 'how' - and on the choices that resulted in the story’s substance and structure. That’s the storytelling practice.

In this piece, I develop the idea of using storytelling across the curriculum to teach students this kind of critical thinking and reflection about their role as lawyers. In Part One, I describe the importance of storytelling and stories in the craft of lawyering. Part Two reviews briefly how clinical and non-clinical teachers use storytelling in their teaching. The bulk of the piece - Part Three - is a description and analysis of my own teaching and how it achieves the goal of developing students’ critical thinking skills and reflective practice. I provide concrete examples of my teaching, as well as critique and analysis based on narrative and lawyering theory scholarship.

The piece concludes with the suggestion that narrative theory and storytelling as a pedagogy used systematically across individual courses and the curriculum has the potential to transform a student’s experience of law school, resulting in her development as an empowered, reflective, and socially responsible member of the legal profession, regardless of the kind of law she practices or the kinds of clients she represents.

Download the paper from SSRN here.

The Rhetoric of Property Law

Johanna Gibson, Queen Mary University of London School of Law, has published "The Lay of the Land: The Geography of Traditional Cultural Expression," in Intellectual Property and Traditional Cultural Expressions in a Digital Environment 182-201 (C. B. Graber & M. Murr-Nenova eds.; Cheltenham: Edward Elgar, 2008). Here is the abstract.

This paper examines the nature of land or territory as a linking concern in the discussion of intellectual property, traditional knowledge and the digital environment. Fundamentally, intellectual property models are circumscribed by the legal, economic and philosophical western traditions of land and land ownership and the translation of traditional knowledge within intellectual property frameworks imposes a similarly competitive, rivalrous and crowdable imperative upon that subject matter. In mapping traditional knowledge through intellectual property, traditional relationships to land (through the rendering of the knowledge embedded in that land) are similarly translated into competitive western systems, and indeed traditional and indigenous communities have been subjected to the same rationalisation, whereby authenticity is realised and "proven" externally through attachment to the land in what often derives from a colonial construction of Indigenous and traditional interests. This construction is vested in the continuity of connection to place and geographic community which ultimately betrays a self-conscious western construction of cultural resources and knowledge. That is, such knowledge and the relationship to that knowledge is understood only within the context of the institution of western legal paradigms and the legitimated justice of individual property interests. Notably, when it comes to the digital environment, industries based upon intellectual property struggle to chart and define territory by transforming knowledge into “land” as it were. Much has been said about the relationship between intellectual property and personal property, but what is of particular interest to this paper is the way in which an idea is reterritorialised by intellectual property models so that land ownership (at least in a conceptual sense) becomes intriguingly relevant. In examining the role or interference of intellectual property in traditional knowledge protection and indeed interpretation, this paper examines the former not through the expression of ideas as chattels but rather through the way in which ideas and information relate to territories; that is, the relationship between intellectual property frameworks and, not goods (as personal property), but land (as real property).

Download the essay from SSRN here.

The Effects of Advertising

Mark Bartholomew, University at Buffalo Law School, has published "Advertising and Social Identity." Here is the abstract.

This essay takes a stand in the brewing legal academic debate over the consequences of advertising. On one side are the semiotic democratists, scholars who bemoan the ability of advertisers to take control of the meanings that they create through trademark law and other pro-business legal rules. On the other side are those who are more sanguine about the ability of consumers to rework advertising messages and point to several safety valves for free expression existing in the current advertising regulation regime. My take on this debate is that the participants have failed to address the impact of advertising on personal development. Particularly important to this discussion is the recent trend of using targeted niche marketing to appeal to particular social groups. Using social identity theory - an influential psychological theory positing that identities develop through categorization and comparison of ourselves with the social groups around us - I argue that modern advertising has a tremendous and unrecognized influence on our sense of self. My chief example of the impact of niche marketing on identity formation is the recent targeting of the gay and lesbian market. By constructing the gay market in a particular way, advertisers shrink the identity models available for individuals grappling with whether to self-categorize themselves as gay. Advertisers have forced an essentialist model of gay sexuality on consumers while painting the gay market as white, male, healthy, and affluent. At the same time, advertisers have invaded gay cultural space, co-opting gay political symbols and taking over once relatively ad-free community spaces. Meanwhile, this targeted marketing threatens to split the gay community apart by emphasizing lines of difference that are based on class and taste and socioeconomic station. All of these practices threaten the processes that psychologists using social identity theory deem crucial to developing a healthy sense of self. I suggest that the real focus in the debate over legal regulation of advertising should be not on First Amendment protections for artists and activists, but on training our minds to be more aware of advertising’s growing influence on our psyches.

Download the essay from SSRN here.

Sports Metaphors and Analogies In Judicial Opinions

Douglas E. Abrams, University of Missouri School of Law, has published "Sports in the Courts: The Role of Sports References in Judicial Opinions," in Villanova Sports and Entertainment Law Journal (forthcoming). Here is the abstract.

In cases with no claims or defenses concerning sports, the Supreme Court and lower federal and state courts frequently publish opinions that draw analogies to the rules or terminology of sports familiar to broad segments of the American people. Sports analogies can help the court explain factual or legal points because today’s generation, including the lawyers and litigants who comprise the prime audience for written opinions, grew into adulthood amid an unprecedented saturation of professional and amateur sports in the broadcast and print media, and more recently on the Internet.

This article surveys the broad array of sports whose references now lace written judicial opinions, and then discusses the use and misuse of these references. Sports references can help courts explain and resolve complexity, but may also implicate Rule 1.3 of the Model Code of Judicial Conduct by detracting unacceptably from the prestige indispensable to the judicial role. A sports reference remains incompatible with judging when a reasonable reader would conclude that the court invoked it primarily for the judge’s personal pleasure and not to facilitate the communication of ideas.

Download the Article from SSRN here.

"Just the Facts, Ma'am"?

Kenneth D. Chestek, Indiana University School of Law, Indianapolis, has published "Judging by the Numbers: An Empirical Study of the Power of Story." Here is the abstract.

The recent debate about whether 'empathy' is a desirable trait in Supreme Court Justices begs a more fundamental question: are appellate court judges in fact persuaded by appeals to pathos? This article attempts to answer that question by reporting the results of an empirical study the author conducted that investigates whether narrative reasoning, or 'stories,' are persuasive to appellate judges. It is the first rigorous study to ever confront this issue directly. The article first describes how the author wrote four test briefs, two on each side of a hypothetical lawsuit. One brief on each side was written as a 'pure logic' brief, while the other brief on each side made the same logical argument but also included a great deal more context and interesting, but legally irrelevant, background details to tell a more complete story. Groups of appellate judges, law clerks, appellate court staff attorneys, practicing lawyers and law professors were then asked to read two briefs on a randomly-assigned side of the case (either Petitioner or Respondent), and then report which of the two briefs was more persuasive.

The key findings of the study were that appellate judges, along with most other groups, indeed found the 'story' briefs more persuasive. The exception was the law clerk group, which found the logic and the story briefs equally persuasive. The author then speculates as to why the clerks reacted differently, and considers the implications of this finding on law school curricula.

Download the paper from SSRN here.

Brief Writing As Story Telling

Helen A. Anderson, University of Washington School of Law, has published "Stories about Storytelling: 100 Years of Brief Writing Advice." Here is the abstract.

This essay looks at examples of brief writing advice from the early to mid-twentieth century. Although criticism of verbosity and disorganization has been a consistent part of such advice to this day, there are also important changes over time. First, the modern brief is a relatively recent invention, not an ancient legal tradition. Briefs were originally just what the name suggests: short abstracts of the legal argument to be fully developed orally. During the twentieth century the importance of briefs and oral argument reversed - now the brief is the primary means of persuasion while the oral argument presents the abstracted highlights. Second, the debate about the relative importance of reason and emotion, logos and pathos, or law and storytelling, is an old one, and likely to continue. At the beginning of the twentieth century, brief writers were told to avoid emotional or narrative appeals and present only the logical legal argument. But in the wake of legal realism a few decades later, lawyers were told to craft their arguments like artists and novelists. Today, we appear to be in a period where the importance of narrative is enjoying increased recognition once more. The wisest advisors, however, have always urged the use of both logic and narrative in an attempt to persuade.

Download the paper from SSRN here.