Frohock on Reading Lolita as a Sentencing Memorandum @frohock_c @AlbanyLawReview @MiamiLawSchool @umlawschool

Christina Frohock, University of Miami School of Law, is publishing Legal Fiction: Reading Lolita as a Sentencing Memorandum in volume 86 of the Albany Law Review. Here is the abstract.

The idea of a legal narrative often focuses on identifying a narrative within the law, for example, the persuasive power of storytelling in a trial court motion or an appellate brief. The story emerges from the law. This Article proposes inverting that focus so that we identify the law within a narrative. Using the example of Vladimir Nabokov’s classic novel Lolita, the Article explains how we can read the novel as a prolonged sentencing memorandum. That memorandum casts the infamous first-person narrator, recounting his crimes under the pseudonym of Humbert Humbert, as a defendant writing pro se. In Lolita, the law emerges from the story, showing that an entire legal document may be redrawn as a narrative. The legal document and the narrative are one, with a distinct point of view in favor of the criminal defendant. This unity between law and narrative illuminates a deep, essential goal shared by both genres: garnering sympathy. The notion of law without sympathy thus rings hollow. Finally, this essential link between law and sympathy shines a new light on the law’s role to promote justice. Justice must be measured at least partly as an expression of sympathy rather than solely as a cold calculation of costs and benefits.

Download the article from SSRN at the link.

ICYMI: Ledwon on The Poetics of Evidence: Some Applications from Law & Literature @StThomasLaw

ICYMI: Lenora P. Ledwon, St. Thomas University School of Law, has published The Poetics of Evidence: Some Applications from Law & Literature at 21 QLR 1145 (2003). Here is the abstract.

Evidence thus has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict .... Thus, the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt .... "A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it." The above quotations seem astonishing at first glance. The Supreme Court, in the process of analyzing the 403 balancing test under the Federal Rules of Evidence, appears to be moving beyond a simple rationalist tradition by acknowledging the legitimacy of evidence that is "beyond any linear scheme of reasoning." Even the most jaded legal reader must pause at such a phrase in a Supreme Court opinion. What could lie beyond linear reasoning? (Elliptical reasoning, perhaps?) What kind of force will such evidence have? (Emotional force, rather than logical force? The aesthetic force of a well-constructed narrative?) And what in heaven's name is the Supreme Court doing by speaking approvingly of a prosecutor's right to tell "a story of guiltiness"? This sounds suspiciously as if the prosecutor is a creative fiction writer, rather than a rational, scientific presenter of proofs. Why not employ more sober, judicious phrasing, perhaps something along the lines of "the right to present the evidence from which jurors could logically infer guilt"? But perhaps all this is not so astonishing after all. In Old Chief Justice Souter's majority opinion underscores the importance of storytelling and narrative integrity as factors worthy of consideration in a 403 balancing of probative value versus prejudicial effect. And, of course, we "get" it. Evidentiary alternatives, such as stipulations, may be perfectly good evidence, but bad storytelling. We understand that the right to tell a richly detailed story at trial is crucial in persuading a jury. A good, juicy story is more than a match for a logical, dry syllogism any day. So what else is new? There has, in fact, always been a profound connection, a synergy between storytelling and law. There is a similar (although often unacknowledged) synergy between evidence and law and literature scholarship. In the same way that the Supreme Court's comments on the role of narrative in Old Chief may at first strike us as perhaps radical or new, but then seem familiar, so, too, the affinities between evidence scholarship and the law and literature movement, which may at first seem tenuous, are in fact robust. The question is not so much whether there is a poetics of evidence, but rather, of what does it consist? This essay will suggest some possibilities for ways to begin thinking about a poetics of evidence, and attempt to make explicit some already implicit connections between evidence and law and literature. First, I will briefly define "poetics," characterizing it generally as a form of narratology, or a particular interest in the techniques of story. Second, I will provide an overview of some of the existing evidence scholarship, which draws on literary theory or storytelling, and include some suggestions for future scholarship advancing a poetics of evidence. Third, I will borrow a page from the "law as literature" school, and read the Federal Rules of Evidence as a story. By reading the statute as a narrative (and looking at familiar material with new eyes), I hope to advance the ongoing scholarly conversation concerning how to interpret the Federal Rules. I argue that identifying potential themes and plots in the Rules can assist us in imagining interpretive possibilities for this sometimes vexing statute. In particular, identifying the thematic heart of the rules assists us in envisioning a certain kind of interpretive argument: an argument for flexibility and organic growth of evidence law, and a reminder to think of the Rules holistically.

Download the article from SSRN at the link. 

Page on President Trump's Legal Narratives @ProfCathrenPage

Cathren Page, Barry University School of Law, has published Astonishingly Excellent Success or Sad! Loser! Failure: Why President Trump's Legal Narratives "Win" with Some Audiences and "Lose" with Others at 18 Connecticut Public Interest Law Journal 53 (2018).

Download the article at the link.

Rappaport and McGinnis on The Constitution and the Language of the Law

Michael B. Rappaport, University of San Diego School of Law, and John O. McGinnis, Northwestern University, Pritzker School of Law, have published The Constitution and the Language of the Law, as San Diego Legal Studies Paper No. 17-262. Here is the abstract.

There has been a long-standing debate over whether the Constitution is written in ordinary or legal language. Yet no article has offered a framework for determining the nature of the Constitution’s language, let alone systematically canvassed the evidence. This article fills the gap. First, it shows that a distinctive legal language exists. This language in the Constitution includes terms, like Letters of Marque and Reprisal, that are patently technical, and terms, like good behavior, that are latently so in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules such as those that tell readers when to understand a term in its legal sense or its ordinary meaning sense. The article shows how to determine whether a document is written in the language of the law. The most important factor is the language of the document itself. The pervasive presence of technical legal terms provides strong evidence that a document is written in the language of the law, because ordinary language cannot easily account for even a small number of legal terms. The purpose of the document also counts. Insofar as it is written to inform officials of their duties, it is more likely to written in legal language, because that language allows more precision. The language of similar documents provides additional evidence. Since other constitutions at the time were written in the language of the law, that militates in favor of reading the Constitution in that same language. The article supplies strong evidence that the Constitution is written in the language of the law. The article is the first to count the legal terms in the Constitution and approximates them at a hundred. Moreover, the Constitution’s text both blocks the operation of certain legal interpretive rules and calls for the application of other such rules. Finally, the judges and legislators charged with implementing the Constitution in the early Republic frequently deployed legal interpretive rules to resolve contested issues. The Constitution’s legal language has important theoretical and practical significance. Theoretically, it shows that that original methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to cashing out its meaning. Practically, the richness of its idiom provides resources to address otherwise unresolvable interpretive questions.

Download the article from SSRN at the link.

Meyer @pmeyer6104 on "Hamilton" and Legal Narrative

Philip Meyer on "Hamilton" and the power of narrative, here, for the ABA Journal.

Sarma on Walter White, Legal Narrative, and the Death Penalty

Bidiah Sarma, University of California (Berkeley) School of Law and the Justice Center's Capital Appeals Project, is publishing Why We Would Spare Walter White: Breaking Bad and the True Power of Mitigation in volume 45 of the New Mexico Law Review (2015). Here is the abstract.

What if Walter White had been captured by the federal authorities? Considering that he committed the murders of many individuals and orchestrated many more in the course of building and running his global meth trade, the prosecution would be able to seek the ultimate punishment against him. But, would a jury give him the death penalty? Walt’s gripping journey stirred within viewers a range of complex emotions, but even those revolted by his actions must concede that it is extraordinarily difficult to envision a random collection of twelve people unanimously agreeing that he deserves a state-sanctioned execution. Indeed, it seems that many of us actually rooted for Walt throughout the series, even when we struggled to understand why. This Essay explores the answer to the question of why we would spare Walter White from the death penalty. Its exploration underscores the critical importance of “mitigation” — a capacious term that refers to evidence introduced by capital defense lawyers to persuade jurors to hand down something less harsh than a death sentence. Breaking Bad, through its masterful construction of its core narrative, situated us to empathize with Walt, to view him as someone we could understand, to feel about him the way we might feel about a friend or colleague or neighbor. Whether we argued vociferously in online forums that his actions were nearly always justified or simply watched with a suppressed but distinct hope that he might emerge as a partially redeemed man, many of us never condemned Walt. We did not want him to die an undignified death at someone else’s hands. In fact, we were relieved that death came to him on his own terms. And, if he had been captured, we would not have sent him to the death chamber. Knowing Walt — understanding his “mitigation” — bent us towards mercy. To start, this Essay explains how a capital trial unfolds and sets out the factors that jurors must take into account when they decide whether to choose death for a convicted capital defendant. After establishing the basic framework for the death-determination in Part I, this Essay focuses on Walter White’s hypothetical penalty phase in Part II. It describes both the “aggravating” evidence the prosecution would use to persuade jurors that death is the appropriate punishment and the “mitigating” evidence the defense would use to persuade jurors that a sentence less than death is appropriate. Part II concludes with an explanation of why a jury likely would not sentence Walter White to die. Part III steps back to identify distinct conclusions that we could draw from viewers’ prevailing willingness to ride with Walt until the end. It concludes that it would be unwise to dismiss Walt as a fictitious outlier. Rather than ask ourselves what makes Walt’s particular case for mercy special, we should ask ourselves how the show managed to make him so real. Breaking Bad’s storytelling proved so powerful that the show’s writers were themselves amazed that viewers continued to stand by Walt’s side through it all. If we would spare Walter White, surely we would spare many others facing capital punishment. But to get there, we need to do more than hear that they have struggles and triumphs of their own; we need to walk with them on their journeys. We must feel like we did when the last episode of Breaking Bad began — wondering exactly how things will end, but unwilling to bring that end by our hands.

Download the article from SSRN at the link.

Olson on the Future of Law and Literature (and Other "Law-And") Movements

Greta Olson, Justus-Liebig-University, Giessen, has published Futures of Law and Literature: A Preliminary Overview from a Culturalist Perspective in Recht und Literatur im Zwischenraum/Law and Literature In-Between: Aktuelle inter- und transdisziplinäre Zugänge/Contemporary Inter- and Transdisciplinary Approaches 37-69 (Christian Hiebaum, Susanne Knaller, and Doris Pichler, eds., Bielefeld, 2015). Here is the abstract.

Two meta-narratives concerning developments in Law and Literature currently prevail. One suggests that the post-1970 movement that was spearheaded by reformist US American legal teachers such as J. B. White, Richard Weisberg, Robin West, and the moral philosopher Martha Nussbaum is no longer viable. Accordingly, the movement is adjudged to be politically and methodologically passé. Further, a discourse is emerging within legal theory that says that since law once housed all of the disciplines currently used to interrogate it, it does not need literature (or anthropology or sociology for that matter) to reflect on its practice. The other narrative says that the historical and geographical moment that marked Law and Literature as US American has been replaced. “Law and Literature” has metamorphosed into a number of different interdisciplinary local and transnational ventures. Accordingly, a polysemic Law and Literature needs to develop a new form of self-reflection about its practice.

Download the essay from SSRN at the link.

Nanasi on Domestic Violence Asylum and the Victimization Narrative

Natalie Nanasi, Southern Methodist University School of Law, has published Domestic Violence Asylum and the Perpetuation of the Victimization Narrative. Here is the abstract.

Pitiful. Helpless. Powerless. The words often used to describe survivors of domestic violence conjure a vivid and specific image of a woman lacking both strength and agency. These (mis)conceptions stem from the theories of “Battered Woman Syndrome” and “learned helplessness,” developed in 1979 by psychologist Lenore Walker, who hypothesized that intimate partner abuse ultimately causes a woman to resign herself to her fate and cease efforts to free herself from violence or dangerous situations. Although widely criticized, learned helplessness has permeated the legal establishment, for example, serving as the foundation for mandatory arrest and “no drop” policies in the criminal sphere of domestic violence law. Legal scholars have examined the problematic impacts of both the theory of learned helplessness itself and its effect on survivors in the criminal and civil justice systems. This article adds to that important conversation by exploring the previously unexamined area of learned helplessness’ impact on immigration, specifically asylum, law. Through a series of cases from 1996 to 2014, it is now established that a woman may receive asylum protection if she can establish that she is “unable to leave” a violent domestic relationship. This formulation fits squarely within Walker’s framework, as it requires a victim to advance a narrative of helplessness if she is to obtain refuge in the United States. Furtherance of the notion of Battered Woman Syndrome in asylum law is troubling for a number of reasons, namely, as this piece details, in the harms that can result when survivors of domestic violence are required to conform to a specific “stock story” (including injury to both those who fit the stereotype and those who do not). Additionally, continued adherence to and reliance on learned helplessness poses challenges for client-centered lawyering, perpetuates the tendency of victim-blaming, ignores the realities of the dangers of separation violence, and furthers the damaging dichotomy of “worthy” and “unworthy” immigrants. By identifying these concerns and proposing alternative bases for protection that would encompass not just pitiable and vulnerable victims of domestic violence, but strong, empowered and capable fighters against domestic abuse, this article seeks to critique, rebut and prevent the infiltration of static and stereotypical images of battered women in the realm of immigration law.

Download the article from SSRN at the link.

Matthew Windsor On Unreliable Narration and Legal Interpretation in International Law

Matthew Windsor, University of Oxford, has published Narrative Kill or Capture: Unreliable Narration in International Law at 28 Leiden Journal of International Law 743 (2015). Here is the abstract.

This article evaluates the benefits of a ‘turn to narration’ in international legal scholarship. It argues that significant attention should be paid to the narrators who employ international law as a vocabulary to further their professional projects. Theories of unreliable narration help map consensus within international law’s interpretive community in a manner that is acutely sensitive to point of view and perspective. The article examines the existence and extent of unreliable narration through a case study: the practice of targeted killing by the Obama administration in the United States. The struggle for control of the narrative, by narrators with different professional roles and cognitive frames, is ultimately a struggle for interpretive power, with the resulting ability to ‘kill or capture’ divergent narrative visions. Unreliable narration offers a critical heuristic for assessing how narratives are generated, sustained, and called into question in international law, while fostering reflexive inquiry about international law as a professional discipline.

The full text is not available on SSRN.

Anat Rosenberg On the History of Genres in Law and Literature

Anat Rosenberg, Interdisciplinary Center (IDC) Herzliyah, Radzyner School of Law, has published The History of Genres: Reaching for Reality in Law and Literature at 39 Law & Social Inquiry 1057 (2014). Here is the abstract.

Genres are historical formations; their ability to generate knowledge depends on their interrelationships within a culture. Since law, too, can be viewed as a genre, studies of specific historical relationalities between law and other genres are necessary for law’s own history and theory. This essay discusses differentiations between Victorian law and literature, starting out from the recent publication of Ayelet Ben-Yishai’s Common Precedents: The Presentness of the Past in Victorian Law and Fiction (2013), which reveals some of that history. I examine two points: differentiations in legal and literary approaches to probabilistic knowledge, and differentiations in the author functions in law and literature. These differentiations bear multiple implications. I discuss implications for evidence-law debates about probabilistic evidence, for contract-law debates about the centrality of autonomy and self-authorship, and for understandings of legal reasoning itself — the elusive notion of “thinking like a lawyer.”

Download the article from SSRN at the link.

The Power of Legal Narrative

Jeanne Kaiser, Western New England University School of Law, and Scott Kaiser Brown, University of Minnesota Law School, have published When the Story Is Too Good to Be True: A Lawyer's Role in Resisting the Lure of Narrative at 37 Western New England Law Review 233 (2015). Here is the abstract.

Storytelling is important in legal persuasion. The power of a good story is why an attorney strives to mold the facts of a case into a tale with clear heroes and villains. High profile bullying stories and the reaction to those stories by prosecutors, legislators, and the legal academy provide examples of lawyers’ susceptibility to the power of an emotional narrative. This article explores how social problems, like those relating to Phoebe Prince, Tyler Clementi, and Meagan Meiers, are likely to seem more real and pressing when presented in human terms as opposed to the abstract consequences.

Download the article from SSRN at the link.

The Supreme Court's Civil Rights Jurisprudence and Competing Narratives

Peggy Cooper Davis, New York University Law School, Aderson Bellegarde Francois, Howard University School of Law, and Colin P. Starger, University of Baltimore School of Law, have published Beyond the Confederate Narrative. Here is the abstract.

A Confederate narrative haunts Supreme Court doctrine and unnecessarily weakens the Court’s civil rights jurisprudence. This narrative has several sources, but it is most significantly the creature of an embarrassed wish to preserve the right to engage in human chattel slavery. The Confederate narrative protected slave power, survived Reconstruction, and then protected Jim Crow and other forms of human subordination. Although its influence waned during the civil rights movements of the last century, the Confederate narrative survived in doctrine and has reemerged to help defeat claims that certain fundamental human rights are federally guaranteed and federally enforceable. According to what we term the People’s narrative, Reconstruction and the ratification of the 13th, 14th, and 15th amendments changed the constitutional balance of Federal, State, and People power, such that basic civil rights became the People’s privileges and the United States government became the ultimate protector of those rights. We attribute the Court’s failure to recognize important human rights to a failure to take appropriate account of the People’s narrative. This Article identifies and analyzes the dialectic between the Confederate and People’s narratives that has shaped the Supreme Court’s federalism and civil rights doctrine. Through careful exegesis of critical lines of Court opinions – attending especially to overlooked dissents and concurrences embracing the People’s narrative – we demonstrate how the Confederate narrative has subverted post-bellum ideals of human dignity and equal respect for all people. This demonstration is visually represented in an innovative, online series of doctrinal “maps” with links to significant judicial opinions.

Download the article from SSRN at the link.

Unarmed Black Males, Police Shootings, and Courtroom Narratives

Sherri Lee Keene, University of Maryland School of Law, is publishing Victim or Thug? Examining the Relevance of Stories in Cases Involving Shootings of Unarmed Black Males in volume 58 of the Howard Law Journal (2015). Here is the abstract.

In recent years, the shootings of unarmed African American men and boys by individuals with real or purported police authority have garnered significant public attention. Moreover, studies about these incidents have revealed stark contrasts in perspectives between African Americans and White Americans concerning jury decisions not to charge or not to convict the shooters, and the role that race may have played in these cases. Recent polls reveal that African Americans express significantly greater dissatisfaction with these jury decisions and often share the belief that race has played a role. While it is not possible to know the extent to which race actually impacted recent jury decisions, this article explains how matters of race can find their way into jurors’ assessments of cases involving shootings of unarmed African American males. This essay focuses on what we now know about the role of stories in jury decision-making, and the opportunities that stories afford for jurors’ pre-existing attitudes and beliefs, including their biases and prejudices, to factor into their evaluations of cases. Ultimately, this essay argues that the quality of justice and public perceptions would be improved if courts reconsider how they address bias and prejudice in the courtroom. It encourages courts to acknowledge the role that jurors’ perspectives play in decision-making, and employ practices that raise jurors’ awareness of their own biases and encourage the selection of jurors who bring diverse perspectives.

Download the essay from SSRN at the link.

The Basics of Narrative

Harold Anthony Lloyd, Wake Forest University School of Law, has published Narrative in Law and Life: Some Frequently Asked Questions in The Second Draft (Fall 2015). Here is the abstract.

This article briefly addresses the following questions: Why should we study narrative? Does narrative have a basic overarching form or forms? How does framing drive narrative? How do concepts drive narrative? What can we do when we lack the necessary concepts for the narrative we need to tell? Are there basic storylines that repeat? Are there basic character types that we reuse? Can narrative drive the results of a Supreme Court case? Can narrative drive transactional practice? How does narrative's importance underscore the importance of an education in the humanities?

Download the text from SSRN at the link.

Rhetoric and Visualization In Brief Writing

Michael D. Murray, Valparaiso University Law School,  has published Visual Rhetoric and Storytelling in Five Sections of a Brief. Here is the abstract.

The rhetoric of visualization is critical to client-centered legal practice. Visualization through storytelling connects all subject areas in the law and extends far beyond the law to disciplines as varied as cognitive studies, brain science, and rhetoric and persuasion. Visual rhetoric is a growing topic of discussion and scholarship in the legal writing academy, as scholars and practitioners explore the potential of images as cognitive, communicative, and persuasive devices. Lawyers use stories and visual images and structures as framing devices, organizational schema, and persuasive rhetorical methods to communicate the context and meaning of a client’s situation and to improve the communication, reception, and understanding of legal argument with a given audience. Most legal writing and advocacy study has focused on the facts section for narrativity and storytelling, while visual rhetoric has focused on the argument section. This presentation will examine the use of client-centered narrative reasoning and visual rhetoric in five sections of trial level and appellate legal briefs: questions presented; introduction or summary of the argument; statement of facts or statement of the case; explanation sections of the argument; and application sections of the argument.

Download the paper from SSRN at the link. 

Law, Narrative, and the Use of Legal Fictions

Simon Stern, University of Toronto Faculty of Law, is publishing Legal and Literary Fictions in New Directions in Law and Literature (Elizabeth Anker and Bernadette Meyler, forthcoming). Here is the abstract.

Commentators on legal fictions often apply the term to doctrines that make the law’s image of the world seem distorted, bizarre, or fanciful. When doctrines such as corporate personhood and civil death are seen as fictional, this characterization depends on the starting point, but also on what flows from it. The fiction, it seems, holds the seed of a plot, and this latent narrative potential explains why legal fictions are sometimes likened to literary fictions. However, given that common-law judgments present themselves as rooted in precedent and are written in anticipation of their own use as precedents, this narrative potential is an ordinary feature of the law, not a distinctive quality of a few judgments or doctrines. Judgments, like Tribbles, are born pregnant, always capable of spawning. To single out, as fictions, a few that are wrapped in openly metaphorical language would imply that other doctrines, sparer of their means and more banal in their mode of expression, lack this quality. Thus to question the characterization of corporate personhood as a legal fiction is not to limit the scope of narratological inquiry in legal analysis, but to broaden that scope to include areas not usually considered to exhibit such self-consciously literary features as metaphor. As to legal fictions in particular, I argue that if they display a generative potential that invites analogy to literary fictions, that kinship owes more to the ways in which both fictional modes solicit a particular kind of attention, than to a shared ability to spin out narrative arrays. To develop these ideas, I consider the relation between patent misuse and copyright misuse; the question of whether steamboats are "floating inns"; the relation between legal fictions and what recent scholarship by literary critics has called "unnatural narrative"; and Duchamp's "Fountain" (1917).

Download the essay from SSRN at the link.