The First-Person Narrative in Legal Scholarship

storytelling3.jpgIf Jeff Lipshaw taught me one thing (and really he has only taught me one thing), it is that you never respond to anonymous blog commentators.

So don’t consider this a response to the anonymous commentators to my post on my lateral hiring market essay (I think Scott Moss answered them satisfactorily), but rather to consider whether there is something that first-person narrative brings to legal writing that is otherwise missing.

I know my friend Nancy Levit of UMKC School of Law thinks so. Along with Allen Rostron, Nancy started a series in the UMKC Law Review last year called “Law Stories: Tales from Legal Practice, Experience, and Education,” 75 UMKC L Rev 1127 (2007). Their purpose in starting this project was to expand on the art of legal storytelling:

Over the last few decades, storytelling became a subject of enormous interest and controversy within the world of legal scholarship. Law review articles appeared in the form of stories. Law professors pointed out that legal decisions were really stories that told a dominant narrative. Critical theorists began to tell counterstories to challenge or critique the traditional canon. Some used fictional stories as a method of analytical critique; others told accounts of actual events in ways that gave voice to the experiences of outsiders.

Storytelling began to make its way into legal education in new ways. For instance, a major textbook publisher developed a new series of books that recount the stories behind landmark cases in specific subject areas, such as Torts or Employment Discrimination, to help students appreciate not only the players in major cases, but also the social context in which cases arise. Meanwhile, Scott Turow, John Grisham, and a legion of other lawyers invaded the realm of popular fiction and conquered the bestseller lists.

Legal theorists began to recognize what historians and practicing lawyers had long known and what cognitive psychologists were just discovering – the extraordinary power of stories. Stories are the way people, including judges and jurors, understand situations. People recall events in story form. Stories are educative; they illuminate different perspectives and evoke empathy. Stories create bonds; their evocative details engage people in ways that sterile legal arguments do not.

Because, like Nancy and Allen, I believe that legal storytelling is not only educative, but also a way to illuminate different perspectives, I chose to contribute this year to the Second Law Stories Series. My paper, Mediating the Special Education Front Lines in Mississippi, comes directly from my first-hand experiences as a special education mediator in Mississippi. I felt that there was no better way to explain the complexity involved in legal situations when a child who has been imprisoned for a violent crime still must receive special education services.

Similarly, on a lighter, more self-deprecating note, I felt that the narrative voice would be the best way to get across the complexities of the law professor lateral market. Using storytelling again as my device was a way to evoke sympathy, hopefully induce laughter, but also certainly to educate about the difficulties of the process. In the feedback I have received from non-anonymous commentators, I believe I have been largely successful in this endeavor.

So, I ask you, readers of Concurring Opinions, should legal storytelling have a continuing, meaningful place in legal scholarship? And if so, aren’t some forms of legal blogging (not all) nothing more than elaborate ways of telling a good legal story and therefore, also a type of legal scholarship?

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13 Responses

  1. dave hoffman says:

    “Should legal storytelling have a continuing, meaningful place in legal scholarship?”

    If you define storytelling as “narrative voice”, then I think I’d question the assumption that it has a meaningful place today.

    The danger of your blogging-as-scholarship point is that it stretches the definition of the word scholarship beyond a point that, in my view, it can reasonably bear. Also, IRB issues loom.

  2. Belle Lettre says:

    IRB issues loom when professors try to speak on behalf of other human subjects, something at always annoyed me about law reviews–law profs seem to think they’re outside of the university system. Fortunately, my advisor knows the vagaries of social science research, and is guiding me through the IRB process when I do field work this summer (survey + semi-directed interviews of HR and employees). Qualitative research, when properly done and when bias is controlled for (as much as possible), is when I think narrative can be most useful and meaningful–when the responses form a sort of narrative that give life to the quantitative data, or generate theories for future studies.

    But narrative qua narrative–ah, well, that’s an old controversy.

    So, agreed with Dave. And I say this with great difficulty, as a former student of CRT.

    I am not a big fan of Delgado’s storytelling methodology (esp. the Rodrigo chronicles), but he has an article on this that started it all: “Storytelling for Oppositionists and Others: A Plea for Narrative” (Michigan Law Review, 87 (1989).

    Farber and Sherry’s critique: Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807 (1993).

    But I really like this analysis by Kathryn Abrams: Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REv. 971 (1991).

  3. Patrick S. O'Donnell says:

    Speaking from outside the profession, I’ll add here the conclusion to Jerome Bruner’s charming and insightful little book, Making Stories: Law, Literature, Life (2002). Bruner first relates two tales from the practice of medicine that explain the genesis of “narrative ethics,” which arose in part upon realizing that listening to patients’ stories (as opposed, say, to just reading their medical charts) had life-and-death implications and consequences. He ends as follows:

    “Narrative, we are finally coming to realize, is indeed serious business–whether in law, in literature, or in life. Serious, yes, and something else as well. There is surely no other use of mind that gives such delights while at the same time posing such perils.”

    [Forgive my ignorance of the jargon here, but what are IRB issues?]

  4. Jeff Lipshaw says:

    At the risk of offering Paul more than one valuable piece of advice, and having no present view on the definition of scholarship (other than I think the crits meant narrative to be “anti-scientific” in the sense that power corrupts even social scientific hypothesizing and narrative is a cure), there is an amazing combination of scholarship and narrative in Oliver Houck’s “Can We Save New Orleans?”, 19 Tul. Envtl. L. J. 1 (2006). Professor Houck is the secular saint of environmental law in New Orleans, and the piece combines environmental science, law, advocacy, and his narrative of his own flight from New Orleans after riding out the storm. I’m honored to have an inscribed version in my office!

  5. Belle Lettre says:

    IRB = Institutional Review Boards, govern human subjects research (among other things). Basically, before you conduct a study that involves other people and you go to a school that received federal funds (every school!), you have to run your research plan by your school’s IRB (named differently at different schools) to make sure that your study is not exploitative or abusive. There are sensitive research populations (children, pregnant women, surivivors of some trauma), and there were some messed up studies in the past (see e.g., or google Milgram experiment, Zimbardo prison experiment). IRBs don’t ensure ethical research, but one does wonder if the Tuskegee experiments would have been done today. Not to mention the Zimbardo!

    I blogged on this before here, when I was taking my own IRB tutorial for my extremely tame, non-abusive study.

    Bruce Boyden and Daniel Goldberg went at it in my comments section, namely over whether IRB requirements for approval operate as an unconstitutional prior restraint on protected speech (a survey, like mine).

    When it comes to personal storytelling, no IRB issues, but there is a long, exhausting, neverending debate on the scholarly rigorousness and meaningful impact of such a methodology.

    It is an old debate. Everything comes to the legal academy last. But this is distinct from other debates in other disciplines, e.g. qualitative v. quantitative; the rigor of ethnographical studies, the bias potential and objectivity problem in embed participant observation studies (see Venkatesh’s Gang Leader For A Day, which also had IRB issues when he got involved with other gang leaders).

  6. Miriam Cherry says:


    Question – not sure why you say IRB issues loom? Surely not for first person narrative? Unless Paul is a senstive population and needs to be protected from himself 😉

    Miriam, having served on the IRB

  7. Miriam Cherry says:


    Question – not sure why you say IRB issues loom? Surely not for first person narrative? Unless Paul is a senstive population and needs to be protected from himself 😉

  8. Nancy Levit says:

    Belle Letre mentioned Kathy Abrams. Kathy will be writing the introduction to the Second Annual Law Stories collection, the one that will contain Paul’s terrific story, Mediating the Special Education Front Lines in Mississippi! The full line-up (table of contents) from our first collection of Law Stories is below. While you can find some of the pieces posted on SSRN, and all, I believe, on Westlaw, our Law Review has one remaining box of special reprints of the first Law Stories section and I am happy to mail a hard copy of that issue to the first people who request it, until the reprints are gone. If anyone is interested, just send me an e-mail at with your snail address.



    Law Stories: Tales from Legal Practice, Experience, and Education

    Calling for Stories by Nancy Levit & Allen Rostron

    Clinical Genesis at Miami by Anthony V. Alfieri

    Coming Full Circle by Wendi Adelson

    The Newcomer by Maryanne Stanganelli

    A Road Less Traveled by Jessi Tamayo

    When Freedom of Information Came to Illinois by Susan A. Bandes

    Memories of Brutus Hamilton by Richard Delgado

    Suffering From Robert L. by Hayman, Jr.

    Remembering the Eighties: The Lizard Goes to the AALS by Gary Minda

    Antígona: A Voice Rebuking Power by Margaret E. Montoya

    Reel to Real by Jeremy Paul

    Footnotes: A Story of Seduction by Ruthann Robson

  9. dave says:

    I say “IRB issues loom” because if, as Paul asserts, blogging is a kind of narrative scholarship, i.e., something that contribute to generalizable knowledge, then routine blogging practices – like collecting & publishing names of laterals, or even talking about visitor logs – would seem to require IRB submission.

  10. Belle Lettre says:

    I linked up to this at Scatterplot, a sociology blog run by Jeremy Freese (Northwester), Shamus Khan (Columbia), Tina Fetner (McMaster) and a bunch of super people. Yes, I get around. Interdisciplinarity!

    Anyway, do check out the comments to the post here. Very interesting, and it offers another discipline’s view of this and its own intellectual history.

  11. Edward Swaine says:

    1. Without defending the tone of the anonymous comments, note that your original post asked for “people’s criticisms, thoughts, and strong, violent reactions.” Your more recent post and Scott’s comment also suggest a hostility toward “bravely anonymous” reactions; perhaps you might want to broadcast that in advance, though that might well inhibit the kind of feedback you were seeking.

    2. Their vitriol wasn’t properly directed at your paper at all, but at your quotation from another paper — or, at most, your abstract, since the posted version of the paper doesn’t look like it makes any claims about narration at all. I guess the reaction had less to do with the merits of first-person narration, or even about more theory-oriented work on narrative perspectives, than with the too-ready claiming of theoretical contributions to ANY mode of analysis from particular examples. One might just as easily question whether a particular empirical study necessarily showed much about the place of empirics in the academy — we often see claims that something is exemplary without any attempt to demonstrate that.

    For my money, storytellers probably should be especially wary of making theory-oriented generalizations from particular examples — and they especially should eschew fancy-talk — but perhaps I am revealing some biases. Anyway, when Scott suggested a dumbed-down paraphrasing as “[t]he first-person narrative is good for pointing out problems in professor hiring,” I thought that wasn’t too shabby.

  12. earlier anonymous commenter says:

    As the first anonymous commenter to the earlier post, I apologize if I caused any offense. I had a reaction to the abstract and, as Prof. Swaine notes, “strong, violent reactions” (albeit to the paper itself) were requested.

    When the abstract states that you have 2 goals in writing the paper, one substantive and one stylistic, and that the “perhaps more important” goal is the stylistic one, in my view that’s basically telling the prospective reader not to bother reading the article. This post adds a bit of context, and your larger point makes some sense, but as I read the abstract, it was kind of strange.

    Maybe it was just the “perhaps more important” thing that set me off. If a professor’s secondary goal is to move the style of legal scholarship in a worthy direction, so much the better. As this post implies, there are probably several areas of legal scholarship that the narrative form would serve well. But if the style thing is the primary goal, to which the substance of the article is subordinate, then no thanks. If I want to read a good story, even a legal one, I look several other places before I look to the law reviews (with the possible exception of the Green Bag).

    I don’t expect a response, of course, but hope that my apology and attempt at clarification will mitigate the offense I appear to have caused a while back.

  13. Chris says:

    I don’t see what’s wrong with responding to anonymous blog comments. The anonymous literature produced during the stuggle over the ratification of the Constitution was surely worth a response. As I see it, if the comment says something provocative, or asks an interesting question, and you have a response, go ahead and give it! But if a response wouldn’t advance the discussion, then it’s not worth a response even if the original comment was signed.