TELLING STORIES OUT OF SCHOOL

KM
TELLING STORIES OUT OF SCHOOL: AN ESSAY ON LEGAL NARRATIVES
Stanford Law Review
April, 1993
45 Stan. L. Rev. 807
Daniel A. Farber
Suzanna Sherry
INTRODUCTION
The purpose of the article is to explain how and why feminist and critical race theory,
scholars find storytelling as a logical and necessary vehicle for advancing some of their
ideological perspectives and to allow for public examination of storytelling techniques.
The three differences that make storytelling a distinctive mode of legal scholarship are:
• Narratives are central to scholarship as opposed to conventional analytic methods.
• "Stories from the bottom" are particularly important since they convey the
oppression of women and people of color.
• Emphasis is placed on the aesthetic and emotional dimension of narration as
opposed to its typicality or descriptively accurate nature.
This article provides an overview of the storytelling method of legal scholarship and
assesses its value in advancing legal scholarship in general.
I. STORYTELLING IN A “DIFFERENT VOICE”
Storytelling techniques seem particularly apt for feminism and critical race theory
scholars because their experiences are different from "the white majority" and can only
be effectively communicated through concrete storytelling. If properly understood the
storytelling method gives a powerful voice to feminist and critical race theory scholars to
advanced legal scholarship in general.
A. Feminism
The feminist legal perspective generally provides a more contextualized version of legal
scholarship than the traditionally male-dominated abstract and formalistic method of
legal analysis and scholarship. The idea is that feminist perspective is prone to more
concrete storytelling methods, which adds richness to legal scholarship by providing a
different and feminist description of women's oppression.
B. Critical Race Theory
Many critical race theory scholars point to traditional feminist writings to substantiate
their claims to a different voice. However, this is problematic because it necessarily
implicates black as well as white experiences. The lack of concrete evidence for a
different voice of nonwhite scholars should not be dismissed outright. There is at least
some evidence of their unique perspective, which may add to the general body of legal
scholarship. Three reasons not to dismiss critical race scholars:
• There is evidence of a different voice for feminist scholars and given that,
general reality, there is a distinct possibility that a similar voice exists for
critical race theory scholars due to similar experiences of oppression.
• Nonwhite minority groups have distinct cultures that, although different
from African-Americans, reflect different cultures than those, which
dominate America. Based on these differences it is completely plausible
that critical race theorists have a distinctive perspective on law and legal
scholarship.
• It would be foolish to dismiss outright the possibility of a different voice

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of minority scholars given the great weight of evidence that there are some
intergroup differences between minorities and the majority.
II. THE VIRTUES OF NARRATIVES
Based on the presumption that there is no difference between racial groups storytelling
techniques must be evaluated in terms of how concreteness and contextualism add to
legal scholarship.
A. Practical Reasoning and Storytelling
1. An introduction to practical reason.
In general, storytelling has less to do with formalism and grand theory1 and more to do
with pragmatism. Foundationalism at formalism leaves little room for stories hence
storytelling is more aligned with concrete ideas of pragmatism and hands-on learning
rather than abstract thought and analytic reasoning.
There is a body of literature including cognitive psychology, which provides:
• Expertise is not gained through knowing more facts and rules but rather by
picking key facts and rules.
• The skill of picking key facts and rules is learned primarily through experience
with large numbers of past situations.
• Expertise is not an act of intuitive perception but rather an ability to give better
reasons for an interpretation, which is testable against additional information.
How we learn is crucial to understanding how to view legal scholarship to advance the
profession in general with the end goal of better understanding.
2. The role of stories in practical reasoning.
Some benefits of concrete examples:
• Concrete examples provide a method for testing normative principles and
theories, which provide a framework for moving from the general to the specific
or vice versa.
• When normative judgments are made concrete, examples help us understand
universal as well specific claims.
• Concrete examples provide empirical data for evaluating sources of information
e.g. case studies.
Concrete examples are not tied to any one single ideological framework and they provide
for a better understanding of both the abstract and particular.
B. Stories from the “Bottom”
1. Stories and ideological transformation.
Community building is an important concept of storytelling between "ingroup" and
"outgroup" mindset. Storytelling is a possible vehicle for building solidarity in oppressed
groups hence; storytelling should be viewed as scholarship. A potential problem with
stories is the difference in language used by the speaker and that language which the
listener understands. Due to the distinct possibility that feminine and critical race theory
scholars have a distinct voice the language of storytelling is crucial to disseminating the
message.
2. Stories, cases, and legal scholarship.
Storytelling can help identify and eliminate bias in the legal system. A potential problem
1
grand theory A term coined by C. Wright Mills in The Sociological Imagination (1959) to refer to the
form of highly abstract theorizing in which the formal organization and arrangement of concepts takes
priority over understanding the social world. His main target was Parsonsian systems theory.

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is that majority groups tend to silence minority groups and the minority groups are then
forced to rely on storytelling techniques. Another consideration is that groups tend to
gravitate towards like members. If like groups tend to stick together than what good is
Law Review articles to those who are not members of the white middle class majority of
law school professors. The solution to this problem of legal scholarship is the use of
storytelling to directly attack the barriers of minority groups, which may exclude them
from the majority. One problem is that appellate opinions tend to favor the victors and
thus the story of the oppressed may not get out. Another problem is that facts may be
filtered out before an opinion is written which precludes an oppressed group from being
accurately portrayed in legal opinions and academic arenas. Another troubling aspect is
that certain causes of action may not fit existing legal rules that would have the effect of
excluding potential litigants from legal remedies. Lastly, conduct may not violate certain
legal rules that have been established due to simple awareness of what constitutes a legal
offense. If one may conform conduct to accepted legal standards and yet circumvent the
law what good are the legal rules prohibiting discrimination.
III. STANDARDS FOR EVALUATING STORIES AS SCHOLARSHIP
Stories may provide a useful starting point for statistical data from the social sciences
perspective, but how that affects legal system is questionable. Given the various issues,
that storytelling illuminates and the legal context with which it may be presented, the
next issue is its validity and reliability.
A. Validity Issues
1. The problem of fiction.
Some storytellers choose to use the fictional form, which does not purport to tell a true
and accurate series of events but rather the truth of an idea. There are also times when an
idea can seem to be truer when it is given a "concrete face." In this situation it does not
matter if the "concrete face" is a member of the oppressed group, but only that they tell
the story of the oppressed group.
2. Truthfulness in nonfiction.
Most storytelling is told in a non-fictitious way. In this manner, the truth can be
evaluated through honesty of the speaker.
"We can distinguish three different statements about the perception of an event:
(1) “If you had been watching, this is what you would have seen”;
(2) “The situation might not have looked this way if you had been watching,
but this is how it felt to me”; and
(3) “The situation didn't feel this way to me at the time, but this is how it
seems to me now.”" Id. at 834
The first account is a straightforward narrative of events as perceived by the Observer.
The second and third examples are those typically employed by feminist and critical race
theory scholars to convey a message (perhaps in a weak sense) of connection with the
reader. No matter the method employed by the storyteller the issue of paramount
importance is the truthfulness of the storyteller, which lends credibility to their account of
the events.
3. Methods of judging truthfulness.
There are many problems in judging truthfulness of a given story. First, there is the self-
interest of the storyteller who gives a first-hand account. In this scenario, an amount of
bias or self-interest taints the idea of truthfulness. There is also the idea that detail brings

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credibility. The more explicit detail an account; the higher probability that it is truthful.
There are problems with socioeconomic status in that wealthy people or organizations
have the means to meticulously keep records. In contrast, "stories from the bottom" may
be the only means to account for records due to the reality that the financial resources of
maintaining meticulous records are not available to the poor. The bottom line is to
evaluate the truthfulness of the storytelling in a manner similar to or consistent with
existing social science or similar research. There can be hegemonic or non-hegemonic
methods of legitimate storytelling.
4. Typicality.
The more typical an event or characteristic of storytelling the more reliable it tends to be.
This is not to say that typicality is the cornerstone of objectivity or truthfulness, but rather
it is an important factor in evaluating the honesty of storytellers or stories.
Overgeneralization should be carefully avoided.
B. Assessing Quality
Some different voice scholars assert that the traditional standards for determining the
merit of scholarly academic work should not be applied to "different voices" works. The
main contention is the inherent bias in the traditional system necessarily works against
the storytelling technique. Although there is no direct evidence of bias, it is routinely
asserted by critical race scholars. A potential problem is that there is no evidence to
refute the claim. The argument asserts that the fairness and mediocrity of the traditional
system of evaluating scholarly work is the bias against unconventional storytelling.
1. Different standards.
It has been proposed that different standards should be used to evaluate "stories from the
bottom" and storytelling techniques. One such criterion would be how influential the
work is. There are two problems with this criteria, the first being whether the work is
good scholarly work or good advocacy work and the second being only those works
discussing widely held ideas within the "outgroup" would receive high marks. Another
suggested criterion would be judging works by their aesthetic value. However, this
would be incorrect in evaluating legal scholarly works just as it would be incorrect to
evaluate novels by standards, which are set for legal scholarly works. Finally, it has been
argued that legal analysis and reasoning is not necessary in storytelling works. However,
this defies the standards of legal scholarly works and would allow a partial storytelling
works to be published as legal scholarly articles. The general consensus is that legal
scholarly work must have legal analysis and reasoning.
2. Application of conventional standards.
Conventional standards for evaluating scholarship of academic works include advancing
new ideas in a given area, display a familiarity with the relevant material, and present the
material with a reasoned analysis. Scholarly work should also be interesting and engage
the reader's attention in a manner that should be obvious. Conventional evaluations for
scholarly works should apply to storytelling otherwise, the works are demeaned.
CONCLUSION
It has been proposed that a weak version of storytelling is preferable in order to gain
acceptance and credibility in the realm of legal scholarly works. In some sense this may
seem unacceptable to extreme "other voice" scholars, however using narrative in
scholarly works should still be recognizable to "traditional legal scholars."

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