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

• Author: Mary J ane Mossman
• Pages: 487-508

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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-