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Teaching Health Law

Legal Archaeology: Recovering the Stories behind the Cases

Published online by Cambridge University Press:  01 January 2021

Paul A. Lombardo
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Type
JLME Column
Information
Journal of Law, Medicine & Ethics , Volume 36 , Issue 3 , Fall 2008 , pp. 589 - 593
Copyright
Copyright © American Society of Law, Medicine and Ethics 2008

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References

For essays that explore the narrative movement, see Brooks, P. and Gewirtz, P., eds., Law's Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1997). Another strand of that movement can be traced to the work of the late R. Cover, a notable example of which is contained in his book Narrative, Violence and the Law: The Essays of Robert Cover, Martha Minow, Michael Ryan, and Austin Sarat (Ann Arbor: University of Michigan Press, 1993).Google Scholar
For example, the Foundation Press has an entire “law stories” series that includes Constitutional Law Stories by Dorf, M. C.; Civil Procedure Stories by Clermont, K. M.; Property Stories by Morriss, G. K. and Morriss, A. P.; Torts Stories by Rabin, R. L. and Sugarman, S. D.; Contract Stories by Baird, D. G.; Administrative Law Stories by Strauss, P. L.; International Law Stories by Noyes, J. E.; Evidence Stories by Lempert, R. O.; Business Tax Stories by Bank, S. A.; Environmental Law Stories by Applegate, J.; and Legal Ethics Stories by Rhode, D. L. Other publishers have also embraced the trend.Google Scholar
Maute, J. L., “The Value of Legal Archaeology,” Utah Law Review 2000, no. 2 (2000): 223.Google Scholar
Key authors in the creation of fictionalized narratives, allegories, or parables are Bell, D., Faces at the Bottom of the Well: The Persistence of Racism (1992), and Delgado, R., The Rodrigo Chronicles (New York: New York University Press, 1996).Google Scholar
See, for example, Charon, R., Narrative Medicine: Honoring the Stories of Illness (New York: Oxford University Press, 2006) and Mullan, F., Ficklen, E., and Rubin, K., eds., Narrative Matters: The Power of the Personal Essay in Health Policy (Baltimore: Johns Hopkins, 2006). Physicians such as Abraham Verghese, Atul Gawande, and Barron Lerner regularly write within this genre.Google Scholar
Geertz, C., “Thick Description: Toward an Interpretive Theory of Culture,” in The Interpretation of Cultures: Selected Essays (New York: Basic Books, 1973): At 3–30. Geertz borrowed that phrase from philosopher Gilbert Ryle.Google Scholar
Davis, D. S., “Rich Cases: The Ethics of Thick Description,” Hastings Center Report 21, no. 4 (July-August 1991): 12–17. This focus on narrative detail owes much to the work of the Annales school of French historians, including such figures as Fernand Braudel and Emmanuel Le Roy Ladurie. Their thoroughly contextualized histories, often including stories of “low culture” and peasant life, provided a contrast to older histories that emphasized the “high culture” of the court and palace and revolved around political and diplomatic history. Later Annales historians sought to resurrect the heretofore absent “voices” of the poor and dispossessed. For example, a book like The Return of Martin Guerre by N. Zemon Davis demonstrates a method of scholarship that relies on legal documents to unearth a peasant's tale of misappropriated identity.CrossRefGoogle Scholar
See Maute, , supra note 3; Threedy, D. L., “Legal Archaeology: Excavating Cases, Reconstructing Context,” Tulane Law Review 80, no. 4 (2006): 1197–1238.Google Scholar
Id. (Maute), at 224. I often refer to the product of legal archaeology as “Paul Harvey history,” which provides “the rest of the story.” This famous radio commentator's programs regularly included vignettes of famous people, followed by obscure details that did not make it into their official biographies, or similar revelations about important world events whose full story often represents a contrast to the conventional wisdom.Google Scholar
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A series of articles by Gene Teitelbaum identified the location of most state and federal court documents as of the 1980s. See Teitelbaum, G., “United States Supreme Court Briefs and Records: An Updated Union List,” Legal Reference Services Quarterly 2, no. 1 (1982): 9–46; Teitelbaum, G., “United States Courts of Appeals Briefs and Records: An Updated Union List,” Legal Reference Services Quarterly 3, no. 3 (1983): 67–85; Teitelbaum, G., “State Courts of Last Resort's Briefs and Records: An Updated Union List,” Legal Reference Services Quarterly 5, no. 4 (1985): 187–228; and Teitelbaum, G., “Intermediate Appellate State Courts’ Briefs and Records: An Updated Union List,” Legal Reference Services Quarterly 8, no. 4 (1988): 159–207. See also Federal Court Records: A Select Catalogue of National Archives Microfilm Publications, National Archives Trust Fund Board, Washington D.C., 1991. Since the inception of electronic record-keeping, many courts have begun to accept filings online, and much is available in digital format; for example, see <http://www.oyez.org/> (last visited June 24, 2008) for U.S. Supreme Court records.CrossRefGoogle Scholar
For example, Caron's, P. Tax Stories: Digital Supplement may be found at <http://www.law.uc.edu/taxstories/> (last visited June 24, 2008). (last visited June 24, 2008).' href=https://scholar.google.com/scholar?q=For+example,+Caron's,+P.+Tax+Stories:+Digital+Supplement+may+be+found+at++(last+visited+June+24,+2008).>Google Scholar
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Many universities are now subscribing to the Proquest database (Proquest.com), which includes archives for newspapers such as the Christian Science Monitor (1908–1980), Boston Globe (1872–1923), Atlanta Journal-Constitution (1868–1939), Hartford Courant (1764–1984), Chicago Tribune (1852–1984), Washington Post (1877–1986), and the Los Angeles Times (1881–1984).Google Scholar
For example, The Dallas Morning News (1885–1977), available at <http://nl.newsbank.com/nl-search/we/Archives?p_action=keyword&p_product=DMEC&p_theme=dmec> (last visited June 20, 2008).+(last+visited+June+20,+2008).>Google Scholar
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Lombardo, P. A., “Phantom Tumors and Hysterical Women: Revising our View of the Schloendorff Case,” Journal of Law, Medicine & Ethics 33, no. 4 (2005): 791–801. Popular magazines such as Time or The Nation are also rich sources for accounts lawsuits of the past. Both of those magazines provide free online databases. See Time, available at <http://www.time.com/time/magazine/archives> (last visited June 20, 2008); The Nation, available at <http://www.thenation.com/archive/> (last visited June 20, 2008).CrossRefGoogle Scholar
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