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Law in Contemporary Society
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Control the Narrative-- By PrashantRai - 02 May 2012 At the beginning of the year professors forced us to recount the facts of a case in detail before moving on to the legal issues in play. You might say: "and then the plaintiff cut his hand on the gear of the machine," and the professor would promptly correct: "you mean he cut his arm, right?" Initially this seemed tedious to me. His arm, his hand, -- who cares -- let's get to the interesting part - the reasoning. However, I soon changed my opinion. The more cases we studied, the more important the factual details became. Two cases with seemingly identical facts would be decided differently. A closer comb-through usually brought to light a minuscule factual distinction of monumental importance. By continually going through this exercise I came to recognize that each case was different, albeit sometimes only slightly. Each plaintiff and defendant had a unique story, and a general principle could not generate fair outcomes without careful tailoring to the details of each case. Yet, as we came closer to exam time and started writing outlines, doing practice exams, and subjecting the material we had learned in the preceding months to the reductive processes taught to pass an exam, the distinct face attached to each case dissipated. The facts became less relevant. The subtle distinctions between the circumstances surrounding Hawkins' hairy hand and those of the Peevyhouses' coal deposits mattered less and less. Cases that were once stories became bite-sized propositions for use as one sentence citations on an exam. "Peevyhouse establishes that when cost of cover would grossly overcompensate the plaintiff, the measure of expectation damages should be the diminution in value." People forgot that the Peevyhouses' farm was a family farm, and was probably of much greater personal value than the $300 the court eventually rewarded them in damages. The problem is that a grade-focused student has an incentive to ignore the narratives that underlie the cases in favor of a generalized, impersonal approach. This is not just true in exam-preparation but also finds support in the classroom context. At the beginning of the semester my Property professor was quite sensitive to the idiosyncrasies of the epic family rivalry surrounding Pierson v. Post. In contrast, by the end of the semester the professor had a penchant for repeating the word "Less" while students recited the facts until they reduced the entirety of the fact pattern to one sentence. It seemed as though the professor was recasting his initial focus on the particularities of each case as simply something he does when introducing students to the law but not a practice he continues once we get the hang of it. Put differently, it seemed to me as though the professor was telling us that the facts of the case matter less for an advanced practitioner. I spoke with a classmate the other day about the use of violence by police officers to subdue people that run away from arrest. He favored a blanket rule that violence (even deadly force) was justified as a law enforcement technique once the police officer knows that the person has broken the law and is resisting arrest (even if the law broken was a misdemeanor and the means of resistance were nonviolent). This seemed to me an absurd position to take, so I asked him what he thought about a situation where a man steals a loaf of bread from a grocery store to feed his starving family. He sees a police officer chasing him and he runs because he knows that if the police officer arrests him then he will go to jail and will therefore have an even more difficult time providing for his family. I asked my classmate if the police officer could gun the man down in the street for breaking the law and resisting arrest. Without a second thought, he said yes. "Proportional response requirements do not create the proper incentives to stop crime from happening." Now, it is of course impossible to trace the mentality of my peer to the impersonal style of case-reading encouraged by the law school. Without doubt, the lack of sympathy that my classmate demonstrated towards the poor bread thief indicated a deep seated psychopathy that had nothing to do with his experiences in law school. But I can't help but think that his answer was somewhat reflective of my concern that the way in which the law school focuses on generalization at the cost of personalization might be damaging, especially if we are the future of the law. When we talk about the facts of a case, we call them just that -- facts. But I prefer to call them stories, because the word "stories" ties the facts to the experiences of a particular person. After a year of law school I find myself under-skilled in working with the stories that form the foundation of the cases we read. This is disheartening, as stories can bridge the gap between different people’s world views, and help us understand what life is like for others. Story telling can also be deconstructive. Howard Zinn’s A People’s History of the United States is a great example of someone retelling a story to expose a history of oppression and violence. Stories can also be a form of healing. Story telling can provide an opportunity for people to escape the plight of having to suffer in silence. Stories can put a name to a pattern of discrimination and can as a consequence serve as a rallying point for resistance. Controlling the narrative in a trial is a powerful tool of legal advocacy. Anyone following the Trayvon Martin story can tell you that. I wish we spent more time in law school thinking about finding the stories in cases, and telling the stories that constitute our life experiences. I think it would make us more compassionate counselors and more powerful advocates. Eben, I would like to keep working on both of my papers after the formal grading period ends. Thank you for a great semester.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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