Private Property and the Public Interest: (Re)Telling the Stories of Principles, Places, and Parties

AuthorMary J ane Mossman
Pages487-508
ネフヒ
Private Property and the Public Interest:
(Re)Telling the Stories of Principles,
Places, and Parties
MaryJaneMossman
Whatarethestoriestoldtousofconictsanddisputesth atgotolawand
becomethe stuofwhic hthelawis madeDothese storiesrepresentwhat
was told, or have they been transformed by law yers, judges and others, by
law’s procedures and practices? And what of the stories untold in law be
cause the silent can not speak or lawyers cannot hear?
Alegal disputes and reported cases also tell “stor
ies.” However, as Katherine O’Donovan suggests, stories that are told by
ordinary people may be transformed by law. Indeed, lawyers and judges
assumeth atstoriesinlawhaveaclearlydenedp urposeStorytel lingin
law is narrative within a cult ure of argument.” Thus, the goal of law’s story
telling is to persuade the court t hat “one’s story is tr ue, to win the cas e . . . .
Yet, as Carol Rose demonstrated in relation to ideas about the principle of
possession, stories are also told withi n a community, one that includes the
legal community but which may also resonate beyond it. That is, while stor
ies have storytellers, they must also have an audience that can “hear” t he
storybeingtoldtheinterpretivecommunityInthecontextofthenineteenth
century case of Piersonv Post,forexampleRosearguedthatthedenition
ofrst possession dependedona particula raudiencea ndits chosensy m
bolic conte xt,”thati salega lrule thatem bodied eect ivecommu nicat ionof
claims to the world, its audience. Thus, it seems that law always shapes the
stories that are told in its special context.
ネフフMaryJaneMossman
In addition, some legal scholars have claimed that storytelli ng, or nar
rative, has distinctive powers in law for “oppositionists” or outsider groups
(including racial and other minorities, and women), whose claims have often
been “silenced” by law:
Telling stories (rather than simply making a rguments) . . . has a distinc tive
powerto c hallenge and un sele the legal statu s quobe cause stories give
uniquely vivid representat ion to particular voices, perspectives, and expe ri
encesofvict imizationtradit ionallyleftoutof legalscholarshipa ndignored
when shaping legal rule s.
Thus, a number of scholars in the law and literature movement have em
ployed narrative to provide more texture and detail about the law’s impact
on “outsiders.” Yet, even among these scholars, some have urged caution,
arguing that the (neutral) methodology of storytelli ng provides no guaran
tee of their provenance: “Stories break stereotypes, but stereotyp es are also
stories, and stories can be full of them. . . Disembodied and decontextual
ize dst orie sar eal sos tor ies In the legal context part icularly, Martha Minow
expressed concerns about the lim its of stories:
Stories alone do not articul ate principles likely to provide consistency in gen
eralizationstoguidefut ureactionstoriesdonotgenerateguidesforwhatto
heedorwhatadditionalstoriestoelicitStoriesontheirownoerlileg uid
ance for evaluating competi ng stories.
In spite of these debates within the law and literature movement about
thero leofstor iesinr elatio ntolawhist oriesof legalc asesco ntinue toaract
ourinterestsometimesbecauset heyrevealthebackstoryofalegalconict
thatwasnot reectedfully inthe factsthatwere provedinthe casesome
times because they show that serendipity explai ns how a client’s story was
reframed to aract legal principles and sometimes because stories about
legal cases allow us to glimpse values or aspirations that fuel led human
action in particular circumstances or un familiar contexts. In th is way, tell
ing and retelling stories about legal cases i n the courts, about the politics of
intervention by legislatures, and about the people involved in these disputes
mayprovidedierenth istoricalperspectives aboutthelegal processargu
ments that were employed or discarded, strategies that succeeded or failed,
the impact of external social or politica l pressures or of missing voices, and
a deeper understanding of the emergence of common law legal precedents
out of individual disputes between parties. As the editors of Property Stor-

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