We’ve been meaning to write up a scholarly critique of Richard Delgado’s law review article titled “A plea for narrative,” which was published in the pages of the Michigan Law Review, vol. 87 (1989), pp. 2411-2441. (Professor Delgado’s classic paper has been cited over 2600 times according to Google Scholar, and it was assigned reading for the first annual Margaret Montoya Legal Writing Retreat that we attended last month.) So, without further ado, here it goes: while we generally that lawyers are essentially storytellers and that stories are a forceful means of communicating ideas, there are three potential problem with storytelling. Professor Delgado identifies two of these perennial problems in footnote 87 of his paper (internal citations omitted):
There are dangers in storytelling …. The hearer of an unfamiliar [story] may reject it, precisely because the story unmasks hypocrisy and increases discomfort. *** Or, the hearer may consciously or unconsciously reinterpret the story, in light of the hearer’s own belief system and inventory of stock stories, so as to blunt, or even reverse [!], its meaning.
In other words, stories can actually strengthen the audience’s preexisting biases (the problem of confirmation bias) or produce an unintended polarizing effect (the problem of polarization). But these problems, in turn, are symptoms of a much deeper storytelling dilemma, one that Delgado does not address in his essay. I will dub this dilemma the “truth-value problem.” (This quandary is also referred to pejoratively as “just-so stories” in the philosophy of science literature. According to Wikipedia, a just-so story is “an unverifiable narrative explanation for a cultural practice, a biological trait, or behavior of humans or other animals.” As a further aside, Professor John Alcock writes in his 2003 book The Triumph of Sociobiology that the term just-so story is “one of the most successful derogatory labels ever invented.”) But as Professor Delgado correctly notes in his 1989 paper, storytelling is not just an indispensable feature of law practice; it is also a crucial part of human culture. So, how are we to respond to the “just-so story” label?
One response is to openly acknowledge the truth-value problem. Another response–one consistent with Professor Delgado’s scholarly project–is to tell better stories. (Exhibit A: Harper Lee’s “To Kill a Mockingbird.”) Yet another response is to change the incentive structure of scholarly work by rewarding “academic storytelling.” Most legal scholarship is either descriptive (telling us how what the law is; i.e. how the law plays out in the real world) or normative (telling us what the law ought to be; how the law should play out in an ideal world). There is no reason in principle why we can’t have a third category of “scholarly storytelling.” Even if most such stories in this third canon are unable to counteract or negate the polarization, confirmation bias, and truth-value problems we have identified in this post, all it takes is a few good stories to enrich our understanding of the world …