CRT Chapter Three Textbook Notes
Legal Storytelling and Narrative Analysis
Perspectives and Everyday Interpretive Experiences:
Everyday experiences demonstrate how narrative framing completely alters the perception of truth:
Playground Dispute Example: Kim complains to a teacher that Billy has been picking fights on the playground. The teacher is initially prepared to punish Billy, but upon hearing Billy's account or that of an impartial third observer, it becomes clear that Kim initiated the conflict and Billy was blameless.
Appellate Advocacy Example: Listening to two gifted legal advocates argue opposing sides of the same case reveals how both can be entirely persuasive. The first lawyer presents arguments that seem unassailable; the second lawyer then cites different authorities, invokes distinct principles, and highlights alternative aspects of the exact same precedent cases, completely shaking the listener's initial conviction.
Factual Interpretation Example: In high-profile cases—such as the killing of Ahmaud Arbery or the interrogation/torture of an accused terrorist—two individuals can agree entirely on the underlying raw facts while applying radically divergent interpretations, leaving both wondering how the same evidence leads to opposite conclusions.
Critical Race Theory (CRT) Application:
Critical race theorists utilize everyday experiences regarding perspective, viewpoint, and narrative persuasion to construct a deeper analysis of race in America.
Methods & Forms: Scholars employ parables, autobiographical accounts, and "counterstories." They investigate ignored factual backgrounds and personal histories of well-known legal cases often omitted from law school casebooks (e.g., Korematsu, the Japanese-internment case, and Plessy v. Ferguson, the separate-but-equal decision).
Narrative & Trial Theory: Researchers study narrative mechanics to determine why specific stories resonate, and examine how trial lawyers formulate "theories of a case" to persuade juries to adopt their interpretation over an opponent's.
Historical Foundations of Legal Storytelling:
Slave Narratives: Written by Black captives to articulate their reality and expose the false gentility claimed by white plantation society.
American Indian Oral Traditions: Utilized history and myth to preserve cultural identity, unify the group, and maintain a shared destiny.
Latino Picaresque Literature: Employed satire to mock social conventions, puffed-up nobility, and illegitimate authority.
Racial Standards in Judicial Disqualification:
Legal storytelling highlights the double standard applied to minority judges regarding their ability to speak on systemic issues.
Commonwealth v. Local Union 542, International Union of Operating Engineers, 388 F. Supp. 155, 165 (E.D. Pa. 1974):
Federal Judge Leon Higginbotham refused to disqualify himself from hearing a case when defendants demanded his recusal due to his public statements on race.
* Judge Higginbotham noted that white judges have historically enjoyed wide latitude to discuss intellectual substance and human rights in a generalized fashion, and subsequently preside over specific factual disputes on those same principles. Conversely, defendants sought a far more rigid standard for Black judges to preclude them from ever discussing race relations.
* Higginbotham asserted that disqualifying Black judges on this basis is analogous to asserting that slave masters were correct in claiming that only they—and not the slaves—were qualified to evaluate the harshness or justness of the institution of slavery.
Opening a Window onto Ignored or Alternative Realities
The Problem of Unshared Reality:
A central premise of legal storytelling is that members of the dominant racial group cannot easily comprehend the lived reality of nonwhite individuals, as few possess what W. E. B. Du Bois conceptualized as "double consciousness."
Cultural hegemony—propagated through history texts, religious sermons, and case law—obscures race as an ongoing systemic issue, making reform difficult.
The Stock Narrative of American Race Relations:
The dominant majority's comforting narrative follows a specific historical trajectory:
Slavery existed early in American history as an unforgivable wrong where Black people were brought from Africa in chains; while some were viciously mistreated, others were treated kindly.
Slavery ended with the Civil War, though many Black individuals remained impoverished, uneducated, and outside the cultural mainstream.
As national racial sensitivity grew, federal statutes and case law progressively eradicated the vestiges of slavery.
Presently, Black citizens possess extensive civil rights protected against discrimination in housing, public education, employment, and voting.
Racial progress is exemplified by high office holders (a Black president, a Black female vice president) and wealthy minority entertainers and athletes.
The socio-economic gap between Black and white citizens is steadily narrowing over time.
Providing special benefits must be avoided to prevent fostering dependency, a welfare mentality, or causing a backlash among innocent whites facing perceived reverse discrimination.
Most Americans are fair-minded individuals harboring minimal prejudice, and isolated bad actors are subject to legal punishment.
The Counter-Narrative of Ongoing Subordination:
Coexisting with the stock narrative is a history of Black, Chinese, Japanese, Latino, Filipino, and American Indian subordination characterized by Derrick Bell (And We Are Not Saved, 217 [1987]) as "gory, brutal, filled with more murder, mutilation, rape, and brutality than most of us can imagine or easily comprehend."
Contemporary Statistical Realities:
Infant mortality rates among racial minorities remain nearly double those of white Americans.
Arrest and incarceration rates for minorities in the U.S. are among the highest globally.
School dropout levels among Black and Latino students are worse than nearly any other industrialized country.
The disparity between white and nonwhite populations regarding income, assets, educational attainment, and life expectancy is as wide as or wider than it was thirty years ago.
Violent attacks against Middle Eastern-looking individuals and sexual minorities show alarming increases.
Core legal doctrines and protections are viewed as hollow "shams"—solemnly proclaimed but quietly eroded or withdrawn once public celebrations subside.
Theoretical Causes of Divergent Narratives:
Divergent Experience: Life experiences differ fundamentally along racial lines.
Interest Convergence: As noted by Derrick Bell, people adhere to belief systems that advance their self-interest.
Shortage of Empathy: Societal empathy is limited, creating difficulty in crossing narrative boundaries.
Normative Universe ("Nomos"): Based on narrative theory, individuals inhabit distinct normative frameworks from which they are not easily dislodged. Storytelling attempts to bridge these distinct worlds.
The Universal Scope of Race:
Ian F. Haney López (The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. C.R.-C.L. L. Rev. 1, 5–6 [1994]) observes that race is America's most confounding problem because few understand what it actually is.
A primary misconception is treating racial issues as belonging solely to racial minorities.
State v. Buggs, 581 N.W. 2d 329, 344 (Minn. 1998): The court affirmed that race is an issue involving everyone regardless of ancestry or skin color. Assuming race is irrelevant simply because a specific individual (e.g., Juror 32) is not a racial minority misunderstands the universal relevance of race.
Counterstorytelling and Deconstructing Myths
Destructive and Deconstructive Role of Counterstories:
Social realities are constructed via tacit societal agreements mediated by images, pictures, tweets, blog posts, social media, and narrative scripts.
Many underlying assumptions are self-serving, absurd, or cruel, yet remain unexamined until explicitly pointed out.
Counterstorytelling functions to dismantle embedded preconceptions that marginalize groups or obscure their basic humanity.
Mindset and Legal Discourse:
In legal contexts, cultural preconceptions and stock stories (e.g., tropes regarding Black criminality or Muslim terrorism) build a "mindset"—a collection of received wisdoms and suppositions.
This mindset determines how suspicion is allocated, dictates which party carries the burden of proof, and shapes how divided evidence is evaluated.
These background cultural influences frequently exert greater control over legal outcomes than formal rules of law.
Example of Counterstory Analysis:
Richard Delgado (Rodrigo's Eighth Chronicle: Black Crime, White Fears—On the Social Construction of Threat, 80 Va. L. Rev. 503 [1994]) illustrates counterstorytelling by pointing out that white-collar, corporate, and industrial crimes—committed primarily by white individuals—cause far more personal injury, death, and economic loss per capita than all street crime combined.
Delgado playfully posits that white-collar crime might be attributed to white perpetrators suffering from "deprived childhoods," mocking traditional crime tropes.
Functions of Narrative and the Concept of the Differend
Cure for Silencing and Empowerment:
Racial discrimination victims often internalize trauma, suffer silently, blame themselves, or pretend incidents are inconsequential.
Stories give voice to silent victims, revealing shared structural experiences and creating terminology to describe specific harm (e.g., microaggressions, unconscious bias, structural racism).
Because race is a social construct rather than an objective reality, racism and racial categories can be deconstructed through narrative analysis.
Paradigm Shifts: Conservative judge Richard Posner (The Problems of Jurisprudence, 459 [1990]) acknowledged that major legal transformations often occur through conversion processes or paradigm shifts, as described by Thomas Kuhn.
Autobiographical Narrative: Barack Obama’s Dreams from My Father (1995) functioned to communicate and explain his racial journey to a broad reading public.
Jean-François Lyotard's Concept of the Differend:
Definition: A differend occurs when a concept (such as justice) holds conflicting definitions for two groups, such that a victim is denied the language or legal framework required to articulate a recognized injury before a tribunal.
Applications of the Differend:
Reparations Debate: When contemporary Euro-Americans refuse to discuss reparations on the grounds that living Black individuals were never slaves (lacking standing) and living white individuals were never slaveholders, Black claimants experience the differend. The dominant system's legal framework deprives them of a vocabulary to air the grievance (George Martinez, Philosophical Considerations and the Use of Narrative in the Law, 30 Rutgers L.J. 683 [1999]).
Historical Legal Gaps: Women suffering from childhood incest or battered-wife syndrome historically experienced the differend prior to legal recognition of these terms.
Undocumented Workers: Undocumented Latino workers experiencing workplace abuse suffer the differend when they cannot seek legal remedies due to the threat of deportation.
Middle Eastern Americans: Post-9/11 suspicion treats ordinary Middle Eastern professionals (accountants, teachers, office workers, doctors) under a presumptive terrorist framework (John Tehranian, Whitewashed: America's Invisible Middle Eastern Minority, 2008).
Storytelling in Court and Legal Critiques
Practical Courtroom Applications:
Clinical law professors and trial attorneys utilize narrative analysis to understand courtroom persuasion and the power dynamics between attorney and client.
Strategic Tension: A lawyer may prefer Strategy A due to a statistically higher probability of winning (e.g., a 60% chance), whereas the client may prefer Strategy B because it accurately reflects their lived experience and truth, despite lower odds of winning.
Empowerment Scholarship: Writers such as Lucie White (Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 Buff. L. Rev. 1 [1990]) and Anthony Alfieri (Resistance Songs: Mobilizing the Law and Politics of Community, 93 Texas L. Rev. 1459 [2015]) show how narrative lawyering assists disenfranchised clients in achieving meaningful justice.
Formal Legal Adaptations to Narrative:
Courts increasingly accommodate narrative formats:
Child witnesses and select individuals are permitted to testify via continuous narrative rather than standard question-and-answer examinations.
Rape shield laws and evidentiary statutes restrict aggressive cross-examinations of sexual assault survivors, modifying traditional Confrontation Clause rights under the Sixth Amendment to protect the witness's narrative.
Criticisms and Opposing Views:
Allegations of Emotional Manipulation: Critics argue that CRT narrative approaches promote emotional manipulation and the use of racial dynamics over legal merit. For instance, Jeffrey Rosen (New Republic) labeled Johnnie Cochran’s defense of O.J. Simpson as an outrage and an example of "applied critical race theory."
Conservative Critiques: Judge Richard Posner critiques the movement's substantive claims.
Leftist Critiques: Mark Tushnet contends that narrative is an ineffective and analytically unsound form of legal discourse.
Liberal Critiques: Scholars Daniel Farber and Suzanna Sherry offer structural critiques regarding merit and academic standards.
Questions and Discussion
Why are most legal storytellers Black or brown (e.g., Derrick Bell, Richard Delgado, Patricia Williams, Tara Yosso, Matthew Fletcher, Mari Matsuda)?
Do white people tell stories as well, but categorize them as neutral truth rather than stories?
In attempting to shift another person's stance on a contentious topic (e.g., the death penalty), is an array of empirical statistics or a compelling narrative/film more effective?
Does a narrative structure ("Once upon a time…") cause the audience to suspend disbelief, and is this psychological effect beneficial or harmful in legal settings?
If an individual holds a fixed worldview—such as believing virtue is consistently rewarded, individuals get what they deserve, and government welfare programs cause harm—how do they process a narrative about a welfare recipient who raises her children, earns a Ph.D., and founds a successful computer company? Is the worldview re-evaluated, or is the individual dismissed as a rare exception?
Which recurring narratives characterize public political debates, such as affirmative action, presidential campaigns (e.g., the self-made man, the defender of the Constitution, the plain speaker), or judicial confirmation hearings (e.g., adhering strictly to the rule of law vs. judicial activism)?
Is market capitalism constructed around narrative premises (e.g., the market is the ideal resource allocator, self-interest maximizes public benefit, state intervention is inherently damaging)? Do periodic economic crashes cause adherents to alter these beliefs, or are structural stories resistant to conflicting evidence?
When a dominant narrative is repeated frequently, does an inconsistent piece of empirical evidence cause the listener to re-evaluate the model, or simply ignore the discrepancy?
If a person supports border militarization and strict enforcement out of a belief that immigration drives up violent crime and terrorism risk, how do they react to empirical data proving that immigrant destination areas experience declining crime rates and that no foreign terrorist has entered via the Mexican border? Why do statistics often fail to persuade in these contexts?
How can community activists effectively incorporate narrative and storytelling strategies into grassroots organization and legal advocacy?
Suggested Readings
Alfieri, Anthony V., Resistance Songs: Mobilizing the Law and Politics of Community, 93 Texas L. Rev. 1459 (2015).
Amsterdam, Anthony G. & Jerome Bruner, Minding the Law: How Courts Rely on Storytelling and How Their Stories Change the Ways We Understand the Law—and Ourselves (2001).
Bell, Derrick A., Jr., And We Are Not Saved: The Elusive Quest for Racial Justice (1987).
Delgado, Richard, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Mich. L. Rev. 2411 (1989).
Gonzalez, Carmen, et al., Presumed Incompetent II (2d ed. 2020).
Law Stories Series (West Pub. Co.).
Martinez, George A., Race, American Law, and the State of Nature, 112 W. Va. L. Rev. 799 (2010).
Matsuda, Mari J., Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323 (1987).
Symposium: Legal Storytelling, 87 Mich. L. Rev. 2073 (1989).
White, Lucie E., Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 Buff. L. Rev. 1 (1990).
Williams, Patricia J., The Alchemy of Race and Rights: Diary of a Law Professor (1991).
Yosso, Tara J., Critical Race Counterstories Along the Chicana/o Educational Pipeline (2006).