"Inevitable Discovery" - Law, Narrative, Retrospectivity

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Brooks, Peter

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http://hdl.handle.net/20.500.13051/7334
Abstract
The place and status of narrative in the law and in legal studies strike me as uncertain and ambiguous. On the one hand, trial advocates know-have known, presumably, since antiquity-that success in the court of law depends upon telling an effective and persuasive story. The discipline of rhetoric originated essentially to teach courtroom practitioners how to do just that. And academic study sympathetic to "law and literature" has recently given considerable attention to narrative and its uses throughout the law, as institution and as praxis. On the other hand, one looks in vain in legal doctrine, and in judicial opinions, for any explicit recognition that "narrative" is a category for adjudication: that rules of evidence, for instance, implicate questions of how stories can and should be told. Recently, Justice David Souter evoked a concept of "narrative integrity" in one of his Supreme Court opinions - so far as I can tell, the first recognition that the literary and cultural category of narrative needs to be imported into legal thinking, and one that thus far has had no sequels. Legal scholarship first registered the importance of narrative through an attention to "storytelling for oppositionists"--the claim that narrative is an important tool for individuals and communities who need to tell the concrete particulars of their experience in a way normally excluded by legal reasoning and rule. More recently, Anthony Amsterdam and Jerome Bruner make the claim that "[flaw lives on narrative." If the traditional supposition of the law was that adjudication could proceed by "examining free-standing factual data selected on grounds of their logical pertinency," now "increasingly we are coming to recognize that both the questions and the answers in such matters of 'fact' depend largely upon one's choice (considered or unconsidered) of some overall narrative as best describing what happened or how the world works." If this seems convincing, even obvious to students of narrative, I do not believe that Amsterdam and Bruner's "we" who think in terms of "choice ... of overall narrative" includes most judges, or many others who contribute to official legal doctrine. Those who expound what the law is do not overtly recognize "narrative" as an instrument in the process of legal adjudication.
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