Detecting Doctrines: The Case Method and the Detective Story Simon Stern, University of Toronto Faculty of Law
[email protected] Forthcoming in 23 Yale J. L. & Human. __ (2011) [This a preliminary draft; please do not quote or cite] When lawyers are not being villainized in popular culture, they are often endowed with many of the same admirable traits as a shrewd detective. If this characterization conforms to an image that some lawyers embrace, it also speaks to a frequently rehearsed analogy in the literature on legal education. Legal forms of explanation, pedagogy, and analysis invite comparison with detective stories for many reasons. Some commentators focus on the sense of inevitability in the whodunit and the legal judgment. On this view, which frames the analogy in relation to written opinions, the judicial habit of slowly working up to a seemingly inexorable conclusion resembles the detective story’s shrewd distribution of clues in such a way as to settle guilt on a culprit whose status, in retrospect, appears similarly inevitable, as if this figure had always been the only eligible candidate.1 Other commentators emphasize the pedagogical value of narrative, which can make an explanation compelling and memorable in ways that a more abstract and methodical account cannot. For these scholars, who focus on the role of the detective mentality in the classroom, suspense and vividness are features that law professors should borrow from For comments on earlier drafts, thanks to Charles Barzun, Scott Boorman, Gregg Crane, Bill Eskridge, Monika Fludernik, Robert Gordon, Janet Halley, Bruce Hay, Charles Rzepka, Vanessa Ryan, and Elaine Scarry, and to audiences at the University of Freiberg, the University of Virginia Law School, and the Humanities and Cognitive Theory and the Arts Seminar at Harvard.