Your legal correspondent has been doing his part to keep this magazine 100 percent O.J.-free. My resolution to miss each moment of the trial of the century began out of indolence and has now blossomed into a ripe affectation. The truth is that I've always had an aversion to celebrity trials: the soap operatic narratives spun out to arouse the passions of jurors leave me alternately indifferent and uncomfortable; and the messy particularity of actual human experience tends to obscure the abstract legal principles that make my heart race. To provide academic cover for my elaborate shirking, I went to New Haven last weekend for a conference on "Narrative and Rhetoric in the Law." The device of "storytelling" is becoming increasingly popular in legal scholarship, as a way for previously excluded voices to challenge (skeptics say to avoid) the rigors of traditional legal analysis with parables and personal anecdotes. The purpose of the conference was to assess what, exactly, the storytelling movement has accomplished.
There were memorable performances by Catharine MacKinnon, Janet Malcolm and Alan Dershowitz, just off the plane from Los Angeles. MacKinnon excoriated Malcolm for raising lying to a form of art in her articles about Jeffrey Masson, who is also MacKinnon's husband. She then attacked Daniel Farber of the University of Minnesota for suggesting that she saw pornography as a kind of storytelling that bypasses the conscious mind, although her latest book, Only Words, does indeed suggest that the message of pornography "is addressed directly to the penis." Dershowitz followed an elegant disquisition by Peter Brooks on Rousseau's confession that he framed his chambermaid for stealing a ribbon, and began with a confession of his own. "When we infuse storytelling into our own legal process, we confuse fiction with fact," he intoned. "All stories are advocacy." In Los Angeles, Dershowitz announced, the prosecution is trying to spin a theatrical narrative about how wife-beating in Act I leads inevitably to murder in Act ii; but he, Dershowitz, would prove that in real life, only one-tenth of 1 percent of spousal abuse cases end in death. " Let the fact-finder beware," Dershowitz thundered, "that life is not a story." He was quickly deflated by Elaine Scarry of Harvard, who asked whether the relevant statistic wasn't, in fact, what percentage of men who murder their wives turn out previously to have abused their wives. "It's always relevant to look at the husbands," Dershowitz conceded. Nobody asked what he thought of Simpson's far less heuristic attempt at storytelling, I Want to Tell You, or what proportion of murder suspects in l.a. are meticulously framed by racist state conspiracies, corrupting scores of public officials in their wake.
Having abandoned scholarship to become a full-time self-advocate, Dershowitz can hardly be blamed for telling fantastic stories at exorbitant rates. But the narratology movement among real legal scholars has to be held to a higher standard of detachment and objectivity. Other panelists tended to confirm Dershowitz's confession that storytelling often degenerates into one- sided advocacy. Martha Minnow of Harvard, for example, told a moving story about the Jewish Diaspora, in order to create sympathy for the Satmar Hassidim, whose gerrymandered school district was struck down in the Kiryas Joel case last year. But Minnow chose not to tell the story (or examine the facts) of how the village is administered, in practice, as a municipal theocracy; and these facts are surely more relevant to the constitutional question. "When a story is well told, I part with my analytic abilities," concluded one panelist, which illustrates the danger of exalting empathy over law.
From New Haven, I took the train to New York to see The Merchant of Venice, which illustrates the need to temper law with the spirit of empathy. The director was my friend Barry Edelstein who, at the age of 29, was making his New York debut at the Public Theater. It was painful, therefore, to pick up The New York Times last week and read Vincent Canby's unusually vicious review. ("Like a first year reading in a drama school ... no coherent vision.. .. There's no excuse for this Merchant.") Some of Canby's invective seemed banal: he began by comparing Shylock's desire for revenge to "Rambo's on the Vietcong," and he complained that the play "is supposed to be a romantic comedy," a nineteenth-century conceit that directors in the post-Holocaust era have mercifully abandoned. Furthermore, Canby's own debut as chief drama critic has been rocky: a Times fact-checker confided to New York Magazine recently that Canby, in several of his maiden reviews, insisted on referring to "Frank Lloyd Weber." Still, the genial Canby seems more inclined to burble than to pan, and so I arrived in New York with a little trepidation.
Maybe I'm too biased to be reliable, but I thought the boldly unsentimental production brimmed with ideas. The radiant Laila Robins as Portia was the central character, a choice inadvertently highlighted by Ron Leibman's self- absorbed and introspective performance as Shylock. Law and literature scholars have long searched for a dramatic motive for Portia in the trial scene. Disguised as Dr. Balthasar, the Dershowitz of the day, she arrives from Padua to offer expert testimony about whether Shylock is entitled to cut a pound of flesh from Antonio, who has defaulted on a bond. She knows from the start that it is a capital offense in Venice for Jews, as aliens, to conspire against the lives of citizens; yet before informing Shylock that he must die for the crime of conspiracy, Portia first goes through the charade of appealing to his sense of mercy. The dramatic center of this production was Antonio's latent attraction to Bassanio; and when Portia discovered their love in the middle of the trial scene, she suddenly realized that her storybook marriage to Bassanio was a fraud. Then, when Shylock observed, " These be the Christian husbands!" Portia turned on him maniacally, projecting her jealous rage onto the Jew--"Thou shall have justice more than thou desir'st"--and converting herself from mediator into vindictive prosecutor.
The perverse narrative at the Public Theater--justice corrupted by the sexual jealousy of a defense attorney turned prosecutor--was a daring challenge to the conventional reading of the play, which contrasts the Old Testament virtues of rule-bound, Borkian legal formalism with the Christian virtues of mercy, flexibility and equity. Imagine the chilling scene: a female prosecutor dressed in men's clothes, undone by a broken marriage, half- crazed by racist spite, determined to destroy a wealthy and powerful representative of a despised minority group. What a monstrous story! Thank goodness that, outside the theater, such a tale could never be told.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.