Kenworthey Bilz (Northwestern) has published We Don't Want to Hear It: Psychology, Literature and the Narrative Model of Judging, 2010 U. Ill. L. Rev. 429. Here is the abstract:
The “narrative” model of legal judging argues that legal decision makers both do and should render judgments by assembling sensible stories out of evidence (as opposed to using Bayesian-type, linear models). This model is usually understood to demand that before one may judge a situation, one must give the parties the opportunity to tell their story in a manner that invites, or at least allows, empathy from the judger. This Article refers to this as the “inclusionary approach” to the narrative model of judging. Using psychological research in emotions and perspective taking and the more intuitive techniques of literary criticism, this Article challenges the inclusionary narrative approach, arguing that, in practice, the law gives equal weight to an “exclusionary approach.” That is, in order to render sound, legitimate legal judgments, the law deliberately limits the sort of stories parties are allowed to tell—and does so on moral grounds, not, or at least not only, to improve the “accuracy” of the legal judgment. That is, as both a descriptive and normative matter, impoverished narratives can be better than enriched ones in leading decision makers to morally acceptable legal judgments.
From pp. 439-40:
The narrative movement has been gaining in influence and has spawned a growing scholarship.[Fn.50]
Fn.50: … The movement is also recognizable in Foundation Press’s popular “Law Stories” series, now thirty-two volumes strong, which tells the behind-the-law details of famous legal cases (in fields as diverse and surprising as business tax, legal ethics, and antitrust), with the ambition of supplementing the usual, more narrow pedagogy of the case method. Paul L. Caron, Back to the Future: Teaching Law Through Stories, 71 U. Cin. L. Rev. 405, 406–08 (2002).
(Hat Tip: Jon Broome.)




