Onwuachi-Willig: Roberts's Revisions: A Narratological Reading Of The Affirmative Action Cases

Angela Onwuachi-Willig (Dean, Boston University; Google Scholar), Roberts's Revisions: A Narratological Reading of the Affirmative Action Cases, 137 Harv. L. Rev. 192 (2023):

In law, one of the stories told by some scholars is that legal opinions are not stories. The story goes: legal opinions are mere recitations of facts and legal principles applied to those facts; they are the end result of a contest between opposing sides that have brought the parties to an objective truth through a lawsuit. In these scholars’ eyes, legal opinions are objective, neutral, disinterested, and free from the emotion of narratives. Yet, as feminist legal scholars, Critical Race scholars, and law-and-humanities scholars have long asserted, legal opinions themselves can also be read as narratives, narratives constructed in a way to offer one version of the facts and the legal principles applied to them as the objective truth.

In a seminal article published nearly twenty years ago in the Yale Journal of Law and the Humanities, Professor Peter Brooks posed a critical yet underexplored question: “Does the [l]aw [n]eed a [n]arratology?” In essence, he asked whether law as a field should have a framework for deconstructing and understanding how and why a legal opinion, including the events that the opinion is centered on, has been crafted and presented in a particular way. After highlighting that “how a story is told can make a difference in legal outcomes,” Brooks encouraged legal actors to “talk narrative talk” and study “perspectives of telling.” He invited lawyers and legal scholars to consider in their analyses of opinions “who sees and who tells,” what is the “explicit or implicit relation of the teller to what is told,” and “how cases come to the law and are settled by the law.” According to Brooks, the more that lawyers begin to apply a narratology to the law, the more lawyers will be able to see the “constructedness” of narratives in opinions — to understand “how they are put together and what [lawyers] can learn from taking them apart.” Similarly, he argued, the more lawyers accepted that the study of narrative in the law “demands analytic consideration in its own right,” the more lawyers would see “how narrative discourse is never innocent but always presentational and perspectival.”

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