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In my 1996 paper, “But that Speaking Makes it So”: The Role of Narrative in the Formation of Community, I wrote:

The creation of a narrative — the telling of a story — is a means of smoothing out the rough edges of existence, a means of transforming raw experience into the webs of significance which constitute culture. Indeed, narrative is such a basic component of culture, of humanity, that we never actually have access to “raw experience.” Nothing exists for us “but that speaking makes it so,” and it is this speaking which provides the coherent meaning in our lives, rather than leaving them a series of discontinuous, unrelated events.

I was speaking from a literary-critical point of view, but Michael S. Gazzaniga’s brain research suggests that this is actually how the brain deals with the world:

Gazzaniga suggests that one of the modules in the human brain should go under the name of the “Interpreter.” This system — located in the left hemisphere, along with the speech center — is what concocts a coherent narrative out of all the brain’s activity, and the annals of neuroscience are now full of bizarre neurological conditions and deft experiments that reveal this constant creative act at work. Of great importance to Gazzaniga’s argument are some oft-cited experiments purportedly demonstrating that conscious awareness of making a decision registers only after the brain has primed itself for that course of action, and sometimes even after the action has been performed. Gazzaniga calls this living in “a post-hoc world.” … According to Gazzaniga, the stories the Interpreter tells tend to be bravely forward-looking, all about steering the ship of fate into uncertain waters, equipped with free will and unity of purpose; but these parables of moral courage are no more than specious retrospective rationalizations for things we do automatically.

via Cathy Gere’s review in Atmospheric Disturbances: On Michael Gazzaniga | The Nation.

According to Gere, for Gazzaniga these “specious retrospective rationalizations” suggest a dis-unified consciousness that then calls into question the entire concept of free will: “If our brains act according to the causal laws governing all matter, in what sense can we be said to be free?” In legal terms, Gazzaniga suggests that this finding potentially undermines the criminal requirement of mens rea (the “guilty mind” element of most crimes): if our actions are in many situations automatic, and our explanations of them — our decision-making moral sense, as it were — only post-hoc, then “‘My brain made me do it’ threatens to become a get-out-of-jail-free card available to everyone, not just to sufferers of fetal alcohol syndrome or schizophrenia.”

Gere contests this conclusion by arguing that there is a difference between automatic reflexes — ”primed by millenniums of natural selection” — and rational, deliberate consideration done before an act. She discusses the legal concept of “diminished responsibility”: the idea that, for example, children have a less-developed sense of moral thinking, and thus should not be held as responsible for their actions as an adult. Insanity — a complex area of interaction between medicine and law — is another site where the law recognizes that some people — but certainly not all people — lack the ability to properly consider their actions. (Although neither seems to mention it, this is pretty much the difference between murder “with malice aforethought” and manslaughter in American common law.)

Gazzaniga gestures at one standard of legal insanity — the “policeman at the elbow” test — but Gere says all he does is “wag an admonishing finger” at the notion. Gere suggests that Gazzaniga’s absolute standard is that one either has reason or not, and that one is thus either responsible or not for one’s actions. She argues that reality — and the law — is more complex in its evaluations that this, and that Gazzaniga fails to acknowledge this complexity.

In criticizing Gazzaniga’s overly simplistic, and overly worried, notions about what his findings do for the idea of responsibility, Gere writes that “the concept [of responsibility] has been refined by witnesses, judges and juries ever since naturalistic accounts of mental illness began to gain traction, and it seems fairly robust as an intuition about justice.”

Although I would agree with Gere in many respects, I am not convinced that the (American, at least) legal system has really developed a “fairly robust” (in the sense of having a common, stable agreement on the matter) sense of how responsibility should function. There are numerous definitions of “insanity” in various states, and the standards have gone back and forth as first doctors suggest grounds for diminished responsibility, and then the public reacts against a sense that criminals are “getting off too easily” by virtue of an insanity defense, and push for tightening the rules.

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Jared Lee Loughner, for example, the accused shooter of numerous people in Arizona (including U.S. Representative Gabrielle Gifford), was declared “unfit to stand trial” in federal court due to schizophrenia. Under federal law (revised due to popular anger after John Hinckley, the man who tried to assassinate President Ronald Reagan, was found not guilty by reason of insanity in 1982), this does not mean he is somehow not guilty. He can be forced to take medication until he is deemed “fit,” and can then be tried. Arizona state law is different: in Arizona, even if Loughner is found to have been completely insane at the time of the killings (and therefore “not responsible” in at least some sense), he would first be committed to a mental institution if convicted, then transferred to prison if he recovers his sanity. There is no such thing in Arizona as “not guilty by reason of insanity” anymore.

In the end, although I do not share Gazzaniga’s worry about the likelihood that his findings will result in reducing criminal liability, I am not convinced by Gere’s argument that the law has already established a more “robust” approach to the question. For me, the question of diminished responsibility, especially as a consequence of mental illness, is still a contested area of the law that is neither settled nor necessarily just.

But despite this quibble, I do agree with Gere that there is more risk that the legal rules that establish diminished responsibility  are being eroded than is the fundamental concept of individual responsibility itself: “the concept of diminished responsibility is almost as much a pillar of the Anglo-American legal system as responsibility itself, and its actual erosion — as in the tabloid-stoked trend in Britain of trying minors as adults — is at least as troubling as its still-theoretical extension to all of us.”

For me, at least, just because we construct a post-hoc narrative about an action does not mean we cannot still be responsible for that action, nor do I think there’s a real risk that the legal system will disagree.

Helen A. Anderson of the University of Washington School of Law brings us “Changing Fashions in Advocacy: 100 Years of Brief-Writing Advice.” (The Journal of Appellate Practice and Process, Vol. 11, No. 1, Spring 2010.)

Her historical essay looks at the twentieth century’s development of the modern legal brief, something she describes as “a relatively recent invention, not an ancient legal tradition.” The brief, she says, once was exactly the opposite in importance to what it is today. It has become the main form of appellate persuasion, with oral arguments focusing only on the highlights. Storytelling was once frowned upon in legal briefs, and “writers were told to avoid emotional or narrative appeals and present only the logical legal argument.” Later in the century, lawyers instead began to “craft their arguments like artists and novelists.”

She touches on the issue of new technologies impacting the practice of law, noting that “[o]ne judge complained in 1908 that lawyers no longer took the time to carefully craft briefs with quill and ink, but instead dictated pages of rubbish to stenographers” (from Alfred C. Coxe‘s 1908 article “Is Brief Making a Lost Art?”). Coxe goes on to write:

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The age of combinations, bureaucracies, telephones, and stenographers is at hand, but is still in its infancy. Some of us may yet live to behold a machine where the pleadings and proofs are inserted in a condensing hopper, passed through a solution of text-books and syllabi and from there to a drying chamber, to be deposited finally in a receiver attached to the clerk’s desk, in the form of a completed brief. It is to-day as difficult to find a hand-made brief as it is to find a hand-made shoe.

Interestingly, she compares the early twentieth-century perception of the judicial process “as one of scientific inquiry, and the lawyer’s role as an assistant in that project.” She quotes Ralph Ringwalt, who wrote in 1923 that the “proper personal attitude of legal reasoning on appeal is analogous to what is known as the scientific spirit in inquiry.”

During the middle of the century, lawyers began to recognize the power of storytelling, and to see the process of brief-writing as more than a scientific endeavor. Today’s brief-writers are more inclined to see briefs as a combination of technical legal argument and compelling storytelling.

Anderson’s article is both interesting and compelling, and provides much needed historical context to the practice of law that is often under-recognized within the practicing legal community. History is critical to the common law, but is less often practiced in relation to attorneys themselves.

Related articles

• Why practicing lawyers ought to hate legal academics (professorbainbridge.com)

One key point of Siegel is that comparative histories tend to be “international” and not “transnational,” and that this is a core problem. Instead of escaping the “boundaries of nationalist historiography” (to quote Siegel quoting Ian Tyrrell, 65), traditional comparative approaches posit two (or more) distinct units (nations) that the historian then contrasts. This tends to ignore themes, narratives, concepts, etc. which act “unconfined by national borders” (65). Such studies can “shape or even create its own data” (65).

Siegel’s points are quite valid, I think, especially for certain kinds of history, especially histories that target people or groups who cross artificial national boundaries (immigrants, for example). I am struggling, though, to integrate her critique into my work, which does not quite imagine national distinctions, but rather exists because of these national distinctions. However artificial it may be, law is bound by national boundaries, and investigating changes in law necessitates a recognition of nations.

More fruitful for me, though, is to consider how ideas, concepts, and notions within the law may escape, cross, or transcend the legal boundaries into which they are inscribed. Thus, if I am investigating a concept like the “expectation of privacy,” I should consider the transnational character of this sense, and not simple say that, for example, the French have a different sense of it without examining what that means and what the cross-national connections may be. However, I do believe that comparing and contrasting the French and American legal structures is valid and fruitful — these boundaries and domains exist independent of my analysis. I am not creating them (even if, as I said, they may be artificial). But even as I do so, I should be careful not to attribute the differences strictly to some kind of national character, or to assume they the grew that way independent of influences from beyond the nation-state. But doing that, I think, is simply doing effective history; failing to take into account supra-national influences does a disservice to the history, quite apart from Siegel’s critique.

Siegel proposes that comparative methods considered as “subjects” or historical study instead of “methods.” I think perhaps this proposal is useful in a field where comparative approaches have reigned for years (race in the U.S. vs. Brazil, for example), but its usefulness as a methodology remains vital in areas where it has been less used. Legal scholars have tended to remain parochial in their focus, and I think legal comparative approaches have yet to make inroads to such an extend that it is time to turn away from them.

Related articles

• Going beyond national legal histories (inpropriapersona.com)
• John Palfrey: The Path of Legal Information (ethanzuckerman.com)

So far, my legal research tends to focus on a national narrative, and is an attempt to capture a sense of the national consciousness (“expectations of privacy,” for example) of various times. Ideally, though, while I still intend to pretend I can capture some sense of this national sense (if only for appearances sake), I would like to narrow into just a few of stories within the “plenitude of narratives,” and give the stories of the people involved in the actual cases that helped set the national legal landscape (which will serve as stand-in, albeit a distorted one, for the national consciousness). And although American law is framed as a national standard, I nonetheless am aware that “we are part of abroad.”

I mean this in numerous senses. First, the impact of law does not end at a political border, even if its technical jurisdiction might. Other countries receive the influence of American lawmaking and, in turn (and despite itself, in some cases), American law is influenced by foreign law. This influence could be relatively direct (judges borrowing logic and decisions from abroad, an especially common occurrence in early American law, when English decisions were still often looked to regularly). It could also be more indirect: plaintiffs or defendants could be immigrants, technologies could have been developed elsewhere, or “foreign agents” (i.e., spies!) may be involved. Regardless of the reason, American law is never entirely American — although here as much as anywhere this fiction is maintained, both within the legal community and, as Bender suggests, in American historiography. As he points out, though, its critical to rethink this “bifurcation” between the “international” and the United States, for without that undoing, “one has only the most distorted notion of the national history of the United States and very little historical foundation for understanding the contemporary relationship of the Unites States to transnational and global developments” (see Bender again, on page 6).

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Saying this, though, is often easier that doing it, especially when looking at legal history — American jurists are often (with some exceptions, especially in regards to early English law) careful to excise outside influences or matters from their written decisions, and often decisions are, in effect, “sanitized” versions of the case or controversy. Focusing on the “micro-history” of a case and on the individual players may be one method of access — at the very least because so many Americans are immigrants — or somehow otherwise distinct from the unitary fiction of “American.” (Kelly’s point on p. 125 about the citizenship status of African Americans pre-14th Amendment speaks clearly to this in terms of one group within the United States).

Another approach that may be fruitful would be to compare and contrast at least one other nation with a different legal tradition to the United States to see how law was developed and applied in that context, and to use that to expand beyond a purely nationalistic discourse. A variation on this approach would be to look at England or Canada, nations with very similar legal systems to the Unites States, and see how they dealt with similar issues.

Colleen Chien has a paper in SSRN, dated April of 2009, that explores the narrative of patents, from the epithet of “troll” applied to patent owners who seek only to leverage their patent through licensing, and not application, and including our rather romantic perception of an inventor:

While each patent dispute is unique, most fit the profile of one of a limited number of patent litigation stories. A dispute between an independent inventor and a large company, for instance, is often cast in “David v. Goliath” terms. When two large companies fight over patents, in contrast, they are said to be playing the “sport of kings.” Some corporations engage in “defensive patenting” in order to deter others from suing them. Patent licensing and enforcement entities who sue have been labeled “trolls.” Finally, observers of the patent system call the use of patent litigation to impose or exploit financial distress “patent predation.”

These stories, routinely invoked by the press, advocates, and academics, shape public understanding of the patent system. In this Article, I describe, then match, these stories to data on patent litigations to determine which types of suits are most prevalent. I focus exclusively on the litigation of high-tech patents, covering hardware, software, and financial inventions, using data from the Stanford Intellectual Property Clearinghouse for cases initiated in U.S. District Courts from January 2000 through March 2008.

via SSRN – Of Trolls, Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High-Tech Patents by Colleen Chien.

Recommended reading for anyone interested in how our society, including the press, speaks about the patent system

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Maybe “litcrit” has relied too much on the fabled “Death of the Author” (even without realizing it) when trying to analyze case law. If your “author” keeps popping back up to correct your understanding, it’s much harder to wander off into a analyzing binary dichotomies of meaning (à la Lévi-Strauss) since that damn author/judge/court keeps trying to nail down their/your signifieds.

Or perhaps the law has yet to discover/be discovered by literary criticism, and simply got hung up on the oh-so-last-century positivist Frankfurt School approach of critical theory, whose final implications have simply been too radical to carry into the classroom for the conservative and establishmentarian legal world (nonetheless, it seems legal positivism remains perhaps the dominant approach when legal scholars are forced to wax philosophical).

Possibly the litcrit approach feels too Continental in flavor, more suited to a civil law view of the world. But I think leaving it there would be a shame: the common law looks to me to be a perfectly fascinating cultural narrative, full of symbolic meaning and dialectical relationships, perfectly suited to the complex tools developed by those perhaps more used to dining on Kierkegaard and Austin than Posner and Cardozo.

Those of us in law school often view the law as central to our society. Without the law, we would not be a nation. Quite true, I think, in its way. But is it not, well, interesting to also say that there is never any true center to a culture—that the entire construction is so interwoven and so self-referential that beginnings, endings, margins and centers, are places which are impossible to finally nail down. So then, to continue down this path, Jacques Derrida says (in “Structure, Sign, and Play in the Discourse of the Human Sciences“),

it was necessary to begin thinking that there was no center, that the center could not be thought in the form of a present-being, that the center had no natural site, that it was not a fixed locus, but a function, a sort of nonlocus in which an infinite number of sign-substitutions come into play. . . . This was the moment when . . . everything became discourse—provided we can agree on this word—that is to say, a system in which the central signified, the original or transcendental signified, is never absolutely present outside a system of differences. The absence of the transcendental signified extends the domain and the play of signification infinitely.

There. Isn’t that a fun way to start thinking, just for a bit?

Reading through this introduction has helped remind me of the value of these theoretical approaches, and so I am sharing snippets here to hopefully spark some future scholarship (on my part, on anyone’s part) in applying these theoretical approaches to the law.

Gender and Sex

[S]ex and gender theorists can be divided into various sub-schools that bring together the insights of disparate approaches (eg. materialist feminists, Foucauldian theorists of gender, postmodern and poststructuralist theorists of gender, and psychoanalytical feminists; psychoanalytical feminists can, in turn, be divided among Freudian, Lacanian, and Kristevan thinkers).

Players include: MICHEL FOUCAULT, JUDITH BUTLER.

Marxism

The major distinction in Marxist thought that influences literary and cultural theory is that between traditional Marxists (sometimes, unfairly, called vulgar Marxists) and what are sometimes referred to as post-Marxists or neo-Marxists. The major distinction between these two versions of Marxist thought lies in the concept of ideology: traditional Marxists tend to believe that it is possible to get past ideology in an effort to reach some essential truth (eg. the stages of economic development). Post-Marxists, especially after Louis Althusser, tend to think of ideology in a way more akin to Jacques Lacan, as something that is so much a part of our culture and mental make-up that it actively determines what we commonly refer to as “reality.”

Players include: KARL MARX, LOUIS ALTHUSSER, FREDERIC JAMESON.

Narratology

Narratology examines the ways that narrative structures our perception of both cultural artifacts and the world around us. The study of narrative is particularly important since our ordering of time and space in narrative forms constitutes one of the primary ways we construct meaning in general. As Hayden White puts it, “far from being one code among many that a culture may utilize for endowing experience with meaning, narrative is a meta-code, a human universal on the basis of which transcultural messages about the nature of a shared reality can be transmitted” (Content 1).

Players include: PETER BROOKS, ROLAND BARTHES, ALGIRDAS GREIMAS.

New Historicism

New Historicists are, like the Cultural Materialists, interested in questions of circulation, negotiation, profit and exchange , i.e. how activities that purport to be above the market (including literature) are in fact informed by the values of that market. However, New Historicists take this position further by then claiming that all cultural activities may be considered as equally important texts for historical analysis: contemporary trials of hermaphrodites or the intricacies of map-making may inform a Shakespeare play as much as, say, Shakespeare’s literary precursors

Players include: MICHEL FOUCAULT, STEPHEN GREENBLATT.

Postmodernism

I will attempt to be consistent in using “postmodernism” to refer to a group of critics who, inspired often by the postmodern culture in which they live, attempt to rethink a number of concepts held dear by Enlightenment humanism and many modernists, including subjectivity, temporality, referentiality, progress, empiricism, and the rule of law. “Postmodernism” also refers to the aesthetic/cultural products that treat and often critique aspects of “postmodernity.”

Players include: LINDA HUTCHEON, JEAN BAUDRILLARD, FREDRIC JAMESON.

Psychoanalysis

Psychoanalytical criticism aims to show that a literary or cultural work is always structured by complex and often contradictory human desires. Whereas New Historicism and Marx-inspired Cultural Materialism analyze public power structures from, respectively, the top and bottom in terms of the culture as a whole, psychoanalysis analyzes microstructures of power within the individual and within small-scale domestic environments. That is, it analyzes the interiority of the self and of the self’s kinship systems. By analyzing the formation of the individual, however, psychoanalysis also helps us to understand the formation of ideology at large—and can therefore be extended to the analysis of various cultural and societal phenomena. Indeed, for this reason, psychoanalysis has been especially influential over the last two decades in culture studies and film analysis.

Players include: SIGMUND FREUD, JACQUES LACAN, JULIA KRISTEVA.

An individual is bound up in a series of symbolic or mythic representations — ”man is an animal suspended in webs of significance he himself has spun” (Clifford Geertz, Interpretation of Cultures) — which serve to generate and maintain meaning. Together, these symbols and myths provide the structure for our world-views. They constitute a cohesive narrative of existence, a kind mental map (or text) which functions, in much the same way as a geographic map, as a guide to the terrain of life. From them we generate ideas, interact with people, deal with new situations, and perform other activities we would be unable to do without a framework in which to make decisions. But inevitably, the categorization which is involved in the process of map-formation leaves distortions or even blank spaces in the map, giant regions of unexplored or inaccurate territory.

 —  From my thesis paper: But that Speaking Makes it So.

Sadly, Clifford Geertz passed away in 2006. He was a foundational figure in my approach to research and writing. A “champion of symbolic anthropology,” Geertz focused on the symbolic basis of our lives. Culture, for Geertz, was “a system of inherited conceptions expressed in symbolic forms by means of which people communicate, perpetuate, and develop their knowledge about and attitudes toward life.”

For more on Geertz (and “Webs of Significance”), see, for example:

• Geertz and interpretation
• Clifford Geertz, Cultural Anthropologist, is Dead at 80
• Clifford Geertz, 1926 – 2006
• Anthropologist Biographies: Clifford Geertz

It is the cardinal difference between gift and commodity exchange that a gift establishes a feeling-bond between two people, while the sale of a commodity leaves no necessary connection.

 —  Lewis Hyde, p. 56

A gift, then, presented and represented within a narrative framework, works to establish a community within which more gifts are given and more narratives (re)constructed. It is this very circularity  —  for the “gift not only moves, it moves in a circle” (Lewis Hyde, p. 11)  —  of enduring gift relationships which serves so well to generate and maintain community.

See: But that Speaking Makes it So.