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We Don't Want to Hear It: Psychology, Literature and the Narrative Model of Judging

60 Pages Posted: 5 Feb 2010 Last revised: 27 Sep 2010

Kenworthey Bilz

University of Illinois College of Law

Date Written: February 4, 2010

Abstract

The “narrative” model of legal judging argues that legal decision makers both do and should render judgments by assembling sensible stories out of evidence (as opposed to using Bayesian-type, linear models). This model is usually understood to demand that before one may judge a situation, one must give the parties the opportunity to tell their story in a manner that invites, or at least allows, empathy from the judger. This Article refers to this as the "inclusionary approach" to the narrative model of judging. Using psychological research in emotions and perspective-taking and the more intuitive techniques of literary criticism, this Article challenges the inclusionary narrative approach, arguing that, in practice, the law gives equal weight to an "exclusionary approach." That is, in order to render sound, legitimate legal judgments, the law deliberately limits the sort of stories parties are allowed to tell – and does so on moral grounds, not, or at least not only, to improve the "accuracy" of the legal judgment. That is, as both a descriptive and normative matter, impoverished narratives can be better than enriched ones in leading decision makers to morally acceptable legal judgments.

Suggested Citation

Bilz, Kenworthey, We Don't Want to Hear It: Psychology, Literature and the Narrative Model of Judging (February 4, 2010). University of Illinois Law Review, Vol. 2010, No. 2. Available at SSRN: https://ssrn.com/abstract=1548146

Kenworthey Bilz (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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