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Thursday, April 7, 2011

Simon Stern on case law and detective fiction

When we launched this blog, Jim stated that our mission was to highlight Canadian legal history. Which leads to the question of today--is legal history by Canadians, but not specifically about Canada, 'Canadian'?  TV, movie and book awards have this problem in determining eligibility as well. They tend to err on the side of inclusiveness, so I will too (until vetoed by my co-editor--we haven't discussed this.)

Simon Stern's recent paper, "Detecting Doctrines: The Case Method and the Detective Story," posted on SSRN in the accepted paper series (and forthcoming in the Yale Journal of Law and the Humanities, vol. 2, no. 2, 2011, complicates the 'Canadian' criterion. Simon, as many of our readers know, is on the Faculty of Law at the U of T, where he teaches legal process, ethics, and the legal profession, as well as legal history. He also co-chairs the Law and Humanities Workshop.  His legal historical interests tend to the historical aspects of the Law & Literature subfield (or vice versa).

Intellectual history, and certainly Simon's research, tends to the transnational, but is often relevant to Canadianists, even if indirectly, as extrapolating on the traditions of the common law world to which our jurisdictions belonged. This paper fits that category, and is interesting to boot.

Here's the abstract:    

Many scholars have compared legal judgments with detective stories, and have suggested that law professors should teach cases in a way that reflects the structure of detective fiction. This essay explores that analogy, arguing that detective fiction’s asserted concern with the logical analysis of clues helps to show why exponents of legal doctrine would look to this genre as a model. Detective stories changed in the late nineteenth century, for the first time organizing their narrative structure around the use of clues, and hence claiming to promote logical reasoning in a way that allowed the reader to compete with the detective in solving the mystery. This explanation echoes the rationales offered by the advocates of the case method when it was first being endorsed around the same time. Law teaching changed similarly, moving from the methods of lecture and memorization to an approach that required students to navigate a narrative medium (the case) and to discover its essential components on their own. These two developments, in literature and law, stem from a common source - the emergence of new scientific methods aimed at tracing visible effects back to their hidden causes, exemplified by Charles Lyell’s work in geology and Charles Darwin’s work in evolution. When the early advocates of the case method talked about legal science, they emphasized scientific values such as coherence, clarity, and consistency, but an equally important aspect of the enterprise received much less rhetorical emphasis - namely, the method itself, which reflected the forms of scientific inquiry exemplified by Lyell and Darwin.

This essay explores those connections by considering various historical and structural analogies between the case method and the detective story. Part I takes up the changes in legal education associated with Christopher Columbus Langdell at Harvard, and discusses the intellectual roots of the case method, the justifications offered in its support, and the narrative tendencies that it relies on and promotes. Part II turns to the origins of the modern detective story near the end of the nineteenth century, and shows how the genre developed from the same scientific background as the case method. This section then examines in greater detail some of the ways in which case-method pedagogy may be said to cultivate the same habits as detective fiction, and concludes with some examples in which courts have expressly invoked the analogy to describe their own procedures or have crafted doctrines with the aid of propositions borrowed from detective stories. Part III considers some examples of detective fiction, pursuing the analogy further by asking why lawyers often figure as detectives in these stories. Finally, in a short conclusion, I discuss the analogy’s implications by considering the emergence, around the turn of the nineteenth century, of a doctrinal approach that discovered underlying rights behind express constitutional guarantees.

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