Law Commons^™

Competing Stories: A Case Study Of The Role Of Narrative Reasoning In Judicial Decisions, Kenneth D. Chestek

Kenneth D. Chestek

Abstract:

Within minutes after President Obama signed into law the Patient Protection and Affordable Care Act (derisively referred to by some as the “Obamacare” law), the lawsuits started flying. Literally dozens of suits were filed all across the country. Some were frivolous, but many others raised serious issues of federalism and the reach of Congress’ power under the Commerce Clause.

Of the initial spate of lawsuits, ultimately five were decided by various trial courts on the merits of the Commerce Clause issue. Three judges found the law constitutional, and two others found it unconstitutional. But since the issue is almost …

Judging By The Numbers: An Empirical Study Of The Power Of Story, Kenneth D. Chestek

Kenneth D. Chestek

The recent debate about whether “empathy” is a desirable trait in Supreme Court Justices begs a more fundamental question: are appellate court judges in fact persuaded by appeals to pathos? This article attempts to answer that question by reporting the results of an empirical study the author conducted that investigates whether narrative reasoning, or “stories,” are persuasive to appellate judges. It is the first rigorous study to ever confront this issue directly. The article first describes how the author wrote four test briefs, two on each side of a hypothetical lawsuit. One brief on each side was written as a …

The Plot Thickens: The Appellate Brief As Story, Kenneth D. Chestek

Kenneth D. Chestek

Why are appellate briefs boring? Does overreliance on structural paradigms like IRAC lead to formulaic, and overly legalistic, writing? The author suggests that, by conceiving of briefs as stories and consciously using the elements of narrative (character, conflict, setting, theme, and plot, among others), the brief writer can make the client's story come to life for the reader, hopefully producing a more interesting, and therefore compelling, brief. The author has written a brief in a mock case (Rubin v. Old York County Department of Social Services), and then deconstructs the brief in the article to show how the author of …