Legal Scholarship and Narrative Nonfiction

The pivot point in Jill Lepore’s review of The Warmth of Other Suns: The Epic Story of America’s Great Migration (Isabel Wilkerson, 2010) nicely captures something that makes me uncomfortable in some contemporary legal scholarship.  Lepore:

[Wilkerson’s] project has less in common with the documentary populism of the nineteen-thirties, which, like Chicago School sociology, was always about the collective (if you could just talk to enough people, take enough photographs, conduct enough surveys, you could, finally, record what it meant to be human), than with the new narrative journalism of the nineteen-sixties, which was always about the individual (if you could just find the right person to talk to, and it had to be an ordinary person, you could write the story of everyone). Wilkerson’s work, in other words, is more novelistic than documentary ….

Narrative nonfiction is risky; it has to be grabby, telling, and true. To bear analytical weight, it has to be almost frighteningly shrewd. In “The Warmth of Other Suns,” three lives, three people, three stories, are asked to stand in for six million. Can three people explain six million? Do they have to? Your answers probably depend, mostly, on your intellectual proclivities. You’re reading this magazine; chances are you lean toward thinking that stories, good stories, explain. But if you’re an empiricist the only real way to decide is to see it tried.

There is an “either/or” argument here that is a little too clever, but like the best New Yorker writing, in a meta-way Lepore offers a little story that persuades, at least up to a point.  And it leads to the following observation about legal scholarship.

Over the last couple of decades, perhaps a little less, a style of legal scholarship has emerged — some of it in the law reviews, some of it spilling over into book-length popularizations of journal articles — that borrows a weak form of the method that Lepore characterizes as narrative nonfiction and attaches it to a seemingly conventional (if often interdisciplinary) analysis of law and public policy.  Here are three or four engaging anecdotes about problems or events in the world; here is a new way of linking them analytically; here is a set of legal questions and answers that can be packaged as a pleasing bundle of solutions.  I’ve done this myself.

Some people might call this a method (or worse, a “methodology”), but it isn’t really a method, it’s a style.  And as a style, it should be less persuasive than it seems to be.  The problem, as Lepore reports in her different context, is that few law professors have the “almost frighteningly shrewd” eye or ear to choose anecdotes that are at once “grabby, telling, and true”:  the few stories that truly stand in for all of them.    Even the very best practitioners of narrative nonfiction — John McPhee is my favorite, but I have read many others — occasionally misfire in their choice of subject.   The odds that law professors might borrow the style and make it really work — avoid the challenges of empiricism and instead tell stories that really show us the nature of things — are extremely low.   More precisely, legal scholarship that borrows the style often strikes me as not sufficiently attentive to the rhetorical claim implicit in the work as a whole:  These anecdotes are more than entertaining ways to grab the reader’s attention.   They justify the claims of the piece in their entirety — premises, analyses, conclusions, recommendations.  If they don’t, then I’m better off skipping the anecdotes (or the editors should delete them), and diving into the meat of the argument.

I don’t expect the stylistic trend to abate.  The market for legal scholarship and the limited attention that student editors can give to most manuscripts means that law professors need ways to distinguish themselves and their work.  Spurious claims that “this article is the first to argue …” have become accepted parts of the wink-and-a-nod submission and acceptance dance.  (Note that scholarship can be valuable even if it is not pathbreaking, and few articles are genuinely “first” in more than a nominal sense.)  Introductory, surface-skimming nods to the narrative techniques of Malcolm Gladwell make the same point less directly.  If it’s clever, then it’s original!  When the time comes to convert a journal article (or a series of journal articles) into a book, casting the manuscript in narrative terms can help bridge the divide between popular and scholarly audiences.

There is absolutely nothing wrong with casting legal scholarship in narrative terms, or with using the techniques of the novelist to make claims about the legal world.  I read the New Yorker; I “lean toward thinking that stories, good stories, explain.”   But poorly chosen stories, bad stories, and worse — incomplete stories — don’t.