Issue 1 (2006)
Narrative Transactions - Does the Law Need a Narratology?I have for some time been puzzled about the status of narrative in the law, and more particularly the status of talk about narrative in the law. On the one hand, there has been plenty of legal scholarship-starting more or less from the "storytelling" issue of Michigan Law Review in 1989 - on the uses (and the virtues) of "outsider" narratives in the law, and even before that there was Robert Cover's foundational Nomos and Narrative. It has become something of a commonplace - too much of one - that legal storytelling has the virtue of presenting the lived experience of marginalized groups or individuals in a way that traditional legal reasoning doesn't. This view has of course been criticized, and some of the more naïve assumptions about the moral benefits of storytelling have been questioned. On the other hand, I am not aware that all this story talk has made any difference to legal actors. Trial advocates tell stories - they have always told stories - and clinical training in advocacy includes some attention to construction of the story you will tell in the courtroom (which of course echoes the training in rhetoric given to lawyers in antiquity, when rhetoric and the law were inextricably interwoven). In particular, it is assumed that juries often decide verdicts on the basis of the more persuasive story presented at trial. Yet you search in vain for any explicit recognition by legal decisionmakers that how a story is told can make a difference in legal outcomes. That is not quite true: there are moments when the law notes that a story has been mis-told, or not told according to the rules (of evidence, for instance), or doesn't make sense as told. Appellate courts are to some degree the enforcers of rule-governed storytelling. Yet they don't talk narrative talk. They are conspicuously lacking in the analytic vocabulary and tools of literary "narratology," for instance. Narratology - which I shall discuss in more detail later on- distinguishes between events in the world and the ways in which they are presented in narratives. It pays attention to the parts of narrative and how they combine in a plot; to how we understand the initiation and completion of an action; to standard narrative sequences (stock stories, one might say); and to the movement of a narrative through a state of disequilibrium to a final outcome that reestablishes order. Narratology also studies perspectives of telling: who sees and who tells, the explicit or implicit relation of the teller to what is told, the varying temporal modalities between the told and its telling. I know of only one instance when the Supreme Court shows an explicit, quasi-narratological awareness of narrative as a category of thought and presentation of reality (I'll come back to it later), and it has not produced a sequel.
The Emergence of Public Prosecution in London, 1790-1850Historians of English criminal justice administration have long asserted that criminal prosecution in England before the second half of the nineteenth century was overwhelmingly "private" in nature. Before the mid-nineteenth century, so the received wisdom goes, "prosecution was almost invariably the sole responsibility of the victim." As the subject's leading historian has observed, "the typical prosecution" in England in the eighteenth and early nineteenth century was "at the initiative of a private citizen who was the victim of a crime and who conducted the prosecution in almost all cases." Indeed, Parliament did not even establish a public prosecutor's office until 1879, and, thereafter, the office only gradually assumed prosecutorial responsibilities in a small subset of criminal cases. Considered from a comparative perspective, England's apparent disinterest in public prosecution before the second half of the nineteenth century appears strikingly anomalous. By 1800, countries on the European Continent had long come to rely on public officials to investigate and conduct criminal cases. Even within Britain itself, public prosecution existed by the early years of the nineteenth century: in Scotland, by that time, an official known as the "Procurator Fiscal" essentially "monopolized all serious criminal prosecutions." And in the United States, which adopted the principal aspects of English criminal law and procedure, states, counties, and cities routinely relied upon public prosecutors to investigate, manage, and argue a broad range of criminal cases by the early years of the nineteenth century.
Between Charity, Welfare, and Warfare: A Disability Legal Studies Analysis of Privilege and Neglect in Israeli Disability PolicyThroughout the last century, the modem welfare state has been widely considered a major source of rescue and relief for people with disabilities. By providing mechanisms of cure and care, so the common view goes, the welfare state has improved the social conditions of disabled people, rescuing them from a life of starvation and severe destitution. In this view, welfare provides a refuge, while the real responsibility for the persistent poverty of disabled people lies primarily with the structure of the market economy, with the existence of negative social attitudes, and with disability's "objective" and inherent limitations. In this Article, I challenge this view, arguing that although welfare has indeed provided some relief to people with disabilities, welfare laws and policies have also had a significant role in developing, furthering, and reinforcing the power hierarchies to which people with disabilities are subjected. Through an investigation of Israeli disability policy, I show how hierarchies of welfare benefits reflect national values and collective imageries but at the same time reinforce and re-constitute those values and modes of imagination. Although the particularities and contexts of these hierarchies differ from one country to another, the result, I contend, is the same: those at the top, usually disabled veterans and disabled workers, enjoy better compensation or social insurance schemes, but in fact suffer from similar patterns of ableism and power as other disabled persons, and these patterns eventually render them equally inferior to and of a lesser value than the non-disabled. This Article uses a critical perspective that I term Disability Legal Studies (DLS) in order to emphasize its commitment to the field of critical legal theory and its close association with disability studies. Disability studies, a relatively new academic field, investigates issues such as the social construction of disability, ableism and the power structure that supports and enhances the privileged status and conditions of non-disabled persons in relation to disabled persons, the genealogy of social categories such as normalcy, and the politics of bodily variations.2 The basic approach that all disability studies scholars share is that disability is not an inherent, immutable trait located in the disabled person, but a result of socio-cultural dynamics that occur in interactions between society and people with disabilities. Although disability studies' critique is not altogether new to some legal scholars, it has not yet gained adequate recognition in legal discourse. I maintain that the time has come to identify, introduce, and label the field of DLS, bring it to light, attend to its premises, and incorporate its lessons into legal theory and practice. I further suggest that attending to DLS would bring a shift in writing on disability and the law from a focus on doctrinal analysis or policy advocacy to a research regarding the constitutive role of law in the production of disability.
What's a Judge To Do?Aharon Barak, Purposive Interpretation in Law, Princeton University Press, 2005. Translated from the Hebrew by Sari Bashi. Pp. xx, 423. $45.00 (cloth). Holmes famously declared, "[I]f my fellow citizens want to go to Hell, I will help them. It's my job." In this, as in many of his pithy aphorisms, Holmes exaggerated for effect, and few judges would describe their role in quite those terms. But Holmes's meaning was plain: A judge's role is not to implement his or her own vision, but rather to permit the implementation, consistent with constitutional limitations, of the public's agenda as expressed through democratic political institutions, even if the judge believes that agenda is foolish. And it was, of course, Holmes's willingness to uphold social legislation despite his private doubts about its efficacy or wisdom that helped establish his place in American history. Aharon Barak has a different take on the judge's role. In his view, "the role of the judge is to help bridge the gap between law and society's changing needs ...." When interpreting a statute, a judge is to look for the "purpose" of the statute, which, Barak asserts, will be determined by the "'fundamental values of the system and fundamental human rights"' (p. 171). "[T]he judge should give a statute the meaning that responds to society's needs and protects democracy" (p. 285). In the many aspects of the judge's role in which, according to Barak, the judge may exercise discretion, he or she should "choose the solution that seems best to him or her," and, in his view, "that solution is the one that the judge thinks is just" (p. 212). These passages, like the quote from Holmes, exaggerate the more nuanced view of the judicial role that emerges from Barak's new book, Purposive Interpretation in Law. Yet they clearly point to a theory of judging that is far more expansive and unconstrained than most American judges would recognize - or that they or the public likely would accept.