Tuesday, December 09, 2008

Academic Law and Real Law

Academics greeted United States v. Old Chief, 519 U.S. 172 (1997), with considerable fanfare. The decision, it was said, embraced the notion of "narrative relevance." And so it did. But a search in LEXIS and WESTLAW reveals nary a single post-Old Chief judicial decision that uses the phrase "narrative relevance." So is Old Chief's beatification of narrative relevance real law?

A significant chunk of the law school world has been interested in "narrative" for quite some time. But has this academic enchantment with narrative clouded academics' assessment of Old Chief, has it led academics to exaggerate the importance of Old Chief? That's entirely possible.

N.B. I still insist that scenario-formation and scenario-assessment (versus "narrative") are central to fact finding. I believe that these processes are necessary ingredients of almost all fact finding and inference -- no matter what judges might or might not say. (I think the role of narrative in fact finding and evidential inference is a different story -- so to speak).

Caveat: I have not done the sort of exhaustive search and study of the case law that would be necessary to show that narrative relevance does not exist in judicial opinions under some other name. So at this point I can only raise a question. Nonetheless, the utter absence of "narrative relevance" from the language of judicial opinions raises a strong suspicion, no?

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