March 12, 2012 Issue

I devoured Dahlia Lithwick’s “Extreme Makeover,” in this week’s issue. It’s a review of Dale Carpenter’s Flagrant Conduct, which Lithwick wonderfully describes as “a chronicle that peels the Lawrence case [Lawrence v. Texas, a 2003 United States Supreme Court decision, striking down anti-sodomy laws] back through layers of carefully choreographed litigation and tactical appeals, back to the human protagonists we never really get to know, and back again through centuries of law criminalizing 'unnatural' sexual activity.” I’m a sucker for “behind-the-scenes” analysis of court cases, for reportage that sets out to show what “really” happened. One of my all-time favorite New Yorker pieces is Leonard Garment’s detailed backstage account of Times, Inc. v. Hill, a privacy dispute that the Supreme Court decided on constitutional grounds (“The Hill Case,” The New Yorker, April 17, 1989).

Lithwick’s article centers on a very interesting legal phenomenon – the way cases are converted to “vehicles” for the argument of weighty constitutional issues. For example, with respect to Lawrence v. Texas, Lithwick says, “In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story.” Lithwick seems to think that storytelling is an important aspect of legal argument. In “Extreme Makeover,” she says:

As Carpenter’s nuanced exploration of what worked in Lawrence v. Texas makes clear, the Supreme Court is both supremely open to and supremely closed off from the world around it. That’s why we come to the Court, play by its rules and tell the Justices stories they like to hear about people who remind them of themselves.

I think Lithwick overemphasizes the role that narrative plays in legal argument, especially legal argument at the Supreme Court level. There’s a distillation process that occurs as a case makes its way through the appellate process. By the time it arrives in the highest court, it’s been reduced to a question of pure law. The argument at that stage turns on precedent, and consists of interpretation and comparative analysis.

Lithwick isn’t the only writer who views law in terms of narrative. Janet Malcolm, in her great “Iphigenia In Forest Hills” (The New Yorker, May 3, 2010) says, “If we understand that a trial is a contest between competing narratives, we can see the importance of the first appearance of the narrators.” By “narrators,” she means the prosecutor and the defense attorneys. Later in her piece, she says,

We go through life mis-hearing and mis-seeing and misunderstanding so that the stories we tell ourselves will add up. Trial lawyers push this human tendency to a higher level. They are playing for higher stakes than we are playing for when we tinker with actuality in order to transform the tale told by an idiot into an orderly, self-serving narrative.

I think it’s misleading to describe trials and appeals solely as matters of storytelling. Trials are evidentiary processes. Offences are broken down into their constituent elements; the key issue at trial is whether the prosecution has proved each ingredient beyond a reasonable doubt. Appeals are arguments of legal issues. Narrative has little role to play at trial, and even less so on appeal. Law should be understood not as a matter of competing narratives, but as a matter of competing arguments. That’s one of the main reasons I admire Leonard Garment’s piece; it beautifully lays out the competing arguments in Time, Inc v. Hill.

Notwithstanding Lithwick’s narrative-based concept of law, I enjoyed her review immensely. It brought me news of an interesting new book, and it did so in a lively, vivid manner. I look forward to seeing more of her work in the magazine.