Wednesday, October 30, 2013

The Life of the Law Has Not Been Logic: It Has Been Story

The Life of the Law Has Not Been Logic: It Has Been Story by Kenneth D. Chestek.

Abstract:  "It probably comes as no surprise that principles of cognitive psychology are pretty important in persuasive writing. After all, the whole point of persuasive writing is to influence the thinking of the audience (the court). Judges are humans, so understanding how the human brain works is exceedingly useful to brief writers. And since cognitive psychology tells us that stories are central to human thinking, understanding how to present an effective story is essential to persuasive writing.

But that is not to say that the doctrine of legal writing is limited to the course in persuasive writing. Storytelling pervades the law. Not just in the game changer cases like Brown v. Board of Education or Lawrence v. Texas (just two examples of cases where narrative reasoning was essential in order to effect major changes in the law). Storytelling is also embedded in many of what we sometimes think of as the logos rules.

Take the law of negligence, for example. It looks like a logos-based, four-element test that is pretty straightforward and easy to apply (duty, breach of duty, proximate cause, damages). Law students are even encouraged to think of it in these simplistic terms. But in practice, how does one prove what the duty is without telling stories about what other human beings typically do in similar circumstances? Or whether an individual’s conduct measures up to, or falls short of, that standard? These applications of the rule involve judgment calls that can be resolved by the factfinder only through narrative reasoning. Similar examples can be found in every “doctrinal” course.

The law does not live by logos alone. Pathos-based narrative reasoning is essential not only in applying the law to individual cases, but also to how judges craft the actual rules to be applied. Many, and probably most, “doctrinal” professors understand this, at least subconsciously. Every time they engage students in policy discussions about why the court changed a rule, they are actually (but maybe not explicitly) discussing how a client’s story was so powerful that it convinced the court of the need for change. Since the first-year course in legal writing is as much about legal analysis as it is writing, that course is a perfect opportunity to teach this process explicitly."

(Scott Fruehwald)

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