Monday, October 1, 2012
I have often told my students that small differences in facts can significantly affect a case's outcome. I also tell them to tell a story with the facts.
Competing Stories: A Case Study of the Role of Narrative Reasoning in Judicial Decisions by Kenneth D. Chestek.
Abstract: Within minutes after President Obama signed into law the Patient Protection and Affordable Care Act (derisively referred to by some as the “Obamacare” law), the lawsuits started flying. Literally dozens of suits were filed all across the country. Some were frivolous, but many others raised serious issues of federalism and the reach of Congress’s power under the Commerce Clause.
Of the initial spate of lawsuits, ultimately six were decided by various trial courts on the merits of the Commerce Clause issue. Three judges found the law constitutional, and three others found it unconstitutional. But since the issue is almost purely a question of law (it is the same Commerce Clause and the same body of Supreme Court precedent interpreting it in all six cases), the question arises: why did these cases come out differently?
The mainstream media has seized upon a political explanation: the three judges who found the law constitutional were appointed by Democratic Presidents, while the three judges who found the law unconstitutional were appointed by Republican Presidents. This article challenges that assumption, and suggests a more nuanced explanation: each of the plaintiffs in these cases had different stories to tell. The article explores narrative reasoning (defined as norm-based thinking instead of pure rule-based reasoning) as a possible explanation for the divergent results in these cases.