Saturday, January 21, 2012
Paul A. Lombardo published an essay "Legal Archaeology: Recovering the Stories behind the Cases" in the Fall 2008 issue of the Journal of Law, Medicine, and Ethics. It reminded me of the wonderful chapters in this volume of "health law stories." Here are some excerpts that may be of interest:
Every lawsuit is a potential drama: a story of conflict, often with victims and villains, leading to justice done or denied. Yet a great deal, if not all, that we learn about the most noteworthy of lawsuits — the truly great cases — comes from reading the opinion of an appellate court, written by a judge who never saw the parties of the case, who worked at a time and a place far removed from the events that gave rise to litigation.
Rarely do we admit that the official factual account contained in an appellate opinion may have only the most tenuous relationship to the events that actually led the parties to court. The complex stories — turning on small facts, seemingly trivial circumstances, and inter-contingent events — fade away as the “case” takes on a life of its own as it leaves the court of appeals.
How can a law professor correct this bias? Here are some of Lombardo's suggestions:
The best starting point for doing legal archaeology is the case record itself. We all begin our investigation of cases by reading an appellate opinion. With some extra effort, we can retrieve the records and briefs that the judges relied on as they wrote that opinion. Of course, the case record that is printed for submission to an appellate tribunal will include only a small portion of the documents that make up the lawsuit’s paper trail.
Much of the material contained in the case record is now filed electronically, and for recent cases, may be available on the Web. But even for most pre-Internet cases, finding the proper repository for all these records is not difficult. A visit to your school’s reference librarian with copies of the articles referenced here should get you started.
Lombardo also suggests consulting newspapers and magazines, professional journals, and material generated by the parties and their lawyers. Though some students may complain of "reading overload," skillful editing can make the effort to contextualize the cases well worth everyone's while. I also anticipate that internet archives of particular helpful case studies will accumulate over time.
Selected References from Lombardo
P. Brooks and P. Gewirtz, eds., Law’s Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1997).
J. L. Maute, “The Value of Legal Archaeology,” Utah Law Review 2000, no. 2 (2000).
D. L. Threedy, “Legal Archaeology: Excavating Cases, Reconstructing Context,” Tulane Law Review 80, no. 4 (2006)
C. Geertz, “Thick Description: Toward an Interpretive Theory of Culture,” in The Interpretation of Cultures: Selected Essays.[FP]