Historians of the Singular: Lawyers, Judges, and the Work of Factual Construction

Oct 27, 2009 Jonathan Simon1 comment

Gregory J. O’Meara, S.J., an Assistant Professor at Marquette University Law School, has written a breakthrough article on role of fact interpretation in the judicial construction of criminal law rules that is likely to escape the attention of many criminal law teachers and practitioners who would benefit from it.  On the surface it purports to be a careful doctrinal analysis of the Supreme Court’s hidden expansion of the ineffective assistance of counsel doctrine, in defiance of the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA), 28 U.S.C. Sec. 2254(d) (2008), prohibition on even the Supreme Court using Habeas cases to make new legal rules.  From Strickland v. Washington, 466 U.S. 668 (1984), to the most recent cases, Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005), O’Meara shows that the Court continues to express loyalty to the logic of the Strickland rule.  However, when the analysis is extended to the facts of recent cases, O’Meara shows convincingly that the Court has found relevant facts explicitly treated as irrelevant in Strickland.  Readers who get a bit farther in discover that the article is also a rather copious introduction to the late continental philosopher and theorist of narrative, Paul Ricoeur.  Unfortunately, neither of these highly technical subjects is likely to attract the general teacher or practitioner of criminal law, but this is precisely who should read the article.

Indeed, the discussion of AEDPA, as important as it is for capital lawyers, is really only a case study of a very important argument about the role of factual construction in legal change.  Drawing on the work of Anthony Amsterdam and Jerome Brunner, Minding the Law (2000), O’Meara sets out to convince lawyers of something many practitioners appreciate but which law students (and teachers) strenuously resist, i.e., the idea that facts rather than law are primary craft of legal advocacy (or judicial construction).  As O’Meara compelling demonstrates with the Strickland line of cases is that rigid controls on law leave judges free to change norms by expanding their vision of relevant facts.  There are parallels with Mark Kelman’s classic article Interpretive Construction in the Substantive Criminal Law, 33 Stan. L. Rev. 591 (1982).  Kelman identified a number of techniques by which courts routinely rework facts, for example, time framing which stretches or shrinks the time frame in which the defendant’s actions are considered.  In this article, O’Meara reaches into the formidable and largely legally unplumbed depths of the late philosopher Paul Ricoeur, to develop a systematic analysis of how facts get changed.  Ricoeur analyzes the work of non-fiction writers as a three stage process.  The first stage is one of “documentation” in which a factual archive established.  The second stage is one of explanation, in which certain facts from this archive are selected.  In this process, a key dimension is the “scale” in which facts are framed.  Since scale in narrative can be subtle (unlike in architecture or engineering), narratives can be significantly shifted by resetting the scale (or density) with which facts are explained.  The third phase, that of narration, is where the scaled array of facts are connected with a set of “because” clauses which weave a causal story into them.  While many legal scholars influenced by Robert Cover have attended to the importance of narration, few have noticed the earlier work of scale setting which largely determines the range of causal explanations that will seem relevant.  By bringing out this missing dimension of narrative work, O’Meara has advanced a systematic understanding of fact exegesis in law.

For Ricoeur, history epitomizes non-fiction narrative.  While the fiction writer is held only to aesthetic judgments, the non-fiction writer is accountable to public debate on the adequacy of her account to the common understanding.  Drawing on this fascinating exegesis O’Meara analogizes lawyers (judges and legal scholars as well) to historians, obliged to provide the history of singular moment (an act or a lower court decision).  According to Ricoeur, the historian’s can reinterpret a common history by varying the density with which the facts of a particular event are sampled and presented in a narrative to change the meaning of a historical sequence.  According to O’Meara, the lawyer (judge, scholar) changes precedent by varying the density with which the facts of a case are represented in a brief or an opinion.  He then applies this model to show how the Court’s legal fealty to Strickland by varying the “density” with which the facts of a particular case are presented.  O’Meara’s application of this analysis to the recent ineffective assistance cases is compelling.  But the analogy is worth independent development.  While historians generally focus on scales of decades, like 19^th century Russia, or France during the Revolution, lawyers and judges find themselves confronted with more micro-level events; e.g., a homicide, or a police interrogation.  Yet once the differences in scale are noted, the problems of method are strikingly similar.  Both are primarily focused on developing a body of largely textual but sometimes live witness information into a workable archive.  Both need to make selections of which facts to present (it is an illuminating game to simply compare the facts in majority and dissenting opinions in the same case).  Both ultimately need to weave a causal story through the selected facts.  In portraying lawyers and judges as historians, O’Meara reminds us of the enduring ambiguities that afflict both fields and provide the resource for change.

This is also a way of recasting the early 20^th century legal realist project and the article does a wonderful job of reviewing some of the central ideas and protagonists of the realist movement as anticipatory of the narrative/cognitive approach O’Meara is extending as much as of the empirical social science to which it often compared itself.

Meet the Editors

Oct 26, 2009 Michael Froomkin

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.

 Professor Donna K. Coker
University of Miami School of Law

 Professor Jonathan Simon
Associate Dean, Jurisprudence and Social Policy Program
Faculty Co-Chair, Berkeley Center for Criminal Justice
University of California, Berkeley School of Law, Boalt Hall

Contributing Editors

Contributing Editors agree to write at least one jot for Jotwell each year.

Professor Susan A. Bandes
Distinguished Research Professor of Law at DePaul University College of Law

 Professor Mario Barnes
University of California, Irvine School of Law

Professor Jennifer Chacón
University of California, Davis School of Law

Professor Gabriel J. (Jack) Chin
Chester H. Smith Professor of Law, Professor of Public Administration and Policy, & Co-Director, Program in Criminal Law and Policy

 Professor Margareth Etienne
University of Illinois College of Law

 Professor Mary D. Fan
American University, Washington College of Law

Professor Aya Gruber
University of Iowa, College of Law

 Professor Angela P. Harris
Executive Committee Member of the Center for Social Justice,
University of California Berkeley School of Law, Boalt Hall

 Professor Elizabeth E. Joh
University of California, Davis, School of Law

Professor Orin S. Kerr
The George Washington University Law School

 Professor Dan Markel
D’Alemberte Professor, Florida State University College of Law

 Professor G. Kristian Miccio
University of Denver, Sturm College of Law

Professor Christopher Slobogin
Milton Underwood Professor of Law, Vanderbilt University Law School

Call For Papers

Oct 25, 2009 Michael Froomkin

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. First-time contributors may wish to consult the Jotwell Mission Statement for more information about what Jotwell seeks, and what it seeks to achieve.

Reviews need not be written in a particularly formal manner. Contributors should feel free to write in a manner that will be understandable to scholars, practitioners, and even non-lawyers.

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• be between 500-1000 words;
• focus on one work, ideally a recent article, but a discussion of a recent book is also welcome;
• begin with a hyperlink to the original work — in order to make the conversation as inclusive as possible, there is a strong preference for reviews to focus on scholarly works that can be found online without using a subscription service such as Westlaw or Lexis. That said, reviews of articles that are not freely available online, and also of very recent books, are also welcome.

Initially, Jotwell particularly seeks contributions relating to:

• Administrative Law
• Constitutional Law
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We intend to add more sections in the coming months.

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• Please keep citations to a minimum.
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• Authors are welcome to follow The Bluebook: A Uniform System of Citation (18th ed. 2005), or the The Redbook: A Manual on Legal Style (2d Ed.) or indeed to adopt any other citation form which makes it easy to find the work cited.

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Jotwell Mission Statement

Oct 19, 2009 Michael Froomkin1 comment

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.

Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.

A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.

The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.

Jotwell will help fill that gap. We will not be afraid to be laudatory, nor will we give points for scoring them. Rather, we will challenge ourselves and our colleagues to share their wisdom and be generous with their praise. We will be positive without apology.

Tell us what we ought to read!

How It Works

Jotwell will be organized in sections, each reflecting a subject area of legal specialization. Each section, with its own url of the form sectionname.jotwell.com, will be managed by a pair of Section Editors who will have independent editorial control over that section. The Section Editors will also be responsible for selecting a team of ten or more Contributing Editors. Each of these editors will commit to writing at least one Jotwell essay of 500-1000 words per year in which they identify and explain the significance of one or more significant recent works – preferably an article accessible online, but we won’t be doctrinaire about it. Our aim is to have at least one contribution appear in each section on a fixed day every month, although we won’t object to more. Section Editors will also be responsible for approving unsolicited essays for publication. Our initial sections will cover administrative law, constitutional law, corporate law, criminal law, cyberlaw, intellectual property law, legal profession, and tax law — and we intend to add new sections when there is interest in doing so.

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