These unpublished lectures are cited from verbatim transcriptions by lecture number and then page
number internal to the lecture.
This connection of productive imagination with ontology differs, Ricoeur (1975: 19.13) notes, from
Kantâ™s employment of productive imagination.
84 George H. Taylor
a blend that is not a mere combination of the prior frames but one that generates
its own emergent structure, a structure that is new, imaginative, and creative (Fau-
connier and Turner 2002: 131). Fauconnier and Turner offer same-sex marriage
as an example of this blending (134, 269â“70).4
Signiď¬cantly, for both hermeneutics and for Fauconnier and Turner, the changed
meaning that arises at the moment of application or in the conceptual blend is
not an extraordinary event but a quite ordinary human process. âImagination is
at work, sometimes invisibly, in even the most mundane construction of meaning,
and its fundamental cognitive operations are the same across radically differ-
ent phenomena, from the apparently most creative to the most commonplace.
These operations are characteristic of the human speciesâ (Fauconnier and Turner
I would argue similarly that the law is replete with examples of conceptual
blending and interrelations of meaning and application. These examples extend
not only to more visible and dramatic instances such as deciding whether to extend
the rights of marriage to same-sex couples, but also to more ordinary and routine
elaborations such as determinations of what forms of locomotion are vehicles
and so prohibited in the park. Unfortunately, the law too frequently hides these
instances of imagination and creativity and often discourages the cultivation of
imagination, which may leave the law trailing a distance behind unfolding events
or external forms of organization.
If part of the message of metaphor, imagination, and conceptual blending is
their ubiquity, a ubiquity that needs to be recognized in law, then law also needs
to appreciate the larger possibilities presented by these terms. Law often focuses
on day-to-day needs and neglects a larger vision or goal for itself. Imagination
in particular, though, has the ability to redress that imbalance and attend lawâ™s
prospective, aspirational role. As previously mentioned, in his work on social
and cultural imagination, Ricoeur describes its productive power as utopian. The
utopia exists nowhere and is a ď¬ction, but it is a ď¬ction that can change reality. A
utopia can âshatterâ or âbreak through the thickness of realityâ and can âshape a
new realityâ (Ricoeur 1986: 309â“10). The utopiaâ™s clash with reality may act as a
metaphoric moment where new resemblance â“ a transformed reality â“ is pursued
and created across the gap.
Yet in describing the roles that imagination, metaphor, and conceptual blending
have â“ and should have â“ in law, we need to be careful not to exalt the value of these
roles as ineluctably positive and beneď¬cial. Legal liberals, for example, should
not assume that the trajectory of imagination is necessarily progressive. While
important liberal legal scholars have written on the potentially positive aspirational
Fauconnier and Turnerâ™s work on conceptual blending is in part an outgrowth of prior work in
cognitive theory by George Lakoff and Mark Johnson (1999). Both sets of authors emphasize the role
played by metaphor in human cognition. Yet Fauconnier and Turnerâ™s emphasis on the double-scope
network, in which both frames contribute to a new, emergent meaning, is distinctive. By contrast,
Lakoff and Johnson (1999: 91) urge that conceptual metaphor âallows us to conceptualize one
domain of experience in terms of another, preserving in the target domain the inferential structure
of the source domainâ (emphasis added). For Lakoff and Johnson the conceptual structure does not
signiď¬cantly change in the imaginative moment; for Fauconnier and Turner (and Ricoeur), it can.
Law and Creativity 85
role of imagination in law (Cover 1983: 4, 9; West 2003: 9), we are in a period that
more prominently features a conservative legal and political imagination. This
conservative imagination argues, on the one hand, in an aspirational fashion for
consolidation of governmental power in the executive branch to address the rise
of terror. On the other hand, it also argues for originalist interpretation of the
Constitution to return to judgments of a perhaps mythical past. The latter might
be called a conservative utopia (Mannheim 1936: 229â“39). Both conservative
perspectives invoke imagination.
So in a time when the liberal David Cole (2006) contends for a âreturn to
established Fourth Amendment jurisprudenceâ to oppose conservatives endorsing
legal creativity to allow for electronic surveillance by warrantless wiretapping, it
is apparent that creativity and imagination in and of themselves align with no
necessary legal valence. How then can legal imagination be policed? How do we
determine whether its invocation is appropriate? One response might be to seek
to curtail as much as possible the use of legal imagination, whether by emphasis
on legal tradition or, say, judicial minimalism. These approaches, however, may
neglect the pervasive role that imagination may play in lawâ™s ordinary transactions;
they may adhere to a conservative form of imagination themselves and may not
allow the law readily to evolve to meet new circumstances, though judgments of
aptness here will often be disputed. Further, we have recently seen â“ particularly
graphically in the political sphere â“ the costs of failures of imagination. Contrary to
the assumptions of the Bush administration, the Iraqi people have not welcomed
U.S. forces with open arms. Another example, The 9/11 Commission Report (2004a:
339), strikingly observes that of the kinds of governmental failures revealed in the
attacks that day, a principal failure was one precisely in imagination.5 We are poorer
as a nation to the extent that we individually and collectively do not reach across
the gap and attempt to imagine what it means to be of a different race or ethnicity
or to dwell in a different land (Black 1986: 6â“7). We must try to discover aspects
of resemblance where we now only ď¬nd difference.
Yet if imagination is not only pervasive but also, at least at points, normatively
desirable, on what bases can we distinguish valuable from deleterious uses of
imagination? First, we must appreciate that imagination is not unfettered. Current
scholarship underscores that imagination does not arise from nowhere; we are far
from the romantic view of imagination as simply free and spontaneous. Imagina-
tion is constrained conceptually by existing mental structures; novelty arises out
of the clash and blend of these structures. The political and legal imagination is
also constrained by the tradition or traditions out of which it arises. Imagination
is innovative and adds to and changes prior tradition, but â“ for good and bad â“ its
roots also lie in prior tradition as well.
Second, analytic distinctions may assist differentiation of positive and distortive
uses of imagination. Ricoeurâ™s discussion of utopia may again be fruitfully invoked.
If the best function of utopia is its âexploration of the possible,â its ability to
manifest new realities and new truths, the pathology of utopia is its ď¬‚ight into
The executive summary to the report goes even further and states: âThe most important failure was
one of imaginationâ (9/11 Commission Report 2004b: 9).
86 George H. Taylor
fancy, its escapism, its turn to the âcompletely unrealizable,â its âmagic of thoughtâ
(Ricoeur 1986: 310, 302, 296). As Ricoeur urges more generally, conceptual and
social scientiď¬c thought can evaluate and test imaginative insights. Yet as he also
recognizes, these tests â“ which are based on existing criteria â“ may be outrun
by imagination, which introduces something new. In law we honor today many
judicial dissents whose judgments were criticized and rejected at the time of their
announcement. The use of imagination includes an ineliminable element of risk.
The possibilities of imagination include loss and miscalculation but also beneď¬t
and signiď¬cant gain.
Let me conclude this assessment of the potentially positive role imagination may
play in law and the legal profession by a call for imaginationâ™s greater inculcation in
legal education. As I have suggested, we need not disparage existing legal traditions
or doctrines to acknowledge their current limits. In a world of rapid change on
many fronts, the question is both whether present law satisfactorily keeps up
and whether our studentsâ™ legal training will allow them to keep up as well.
Rhetoric that we want those entering the legal profession to be proactive rather
than simply reactive, to be legal architects rather than simply legal mechanics,
is not platitudinous. Business students focus on the need for innovation; medical
students learn that much of what they are taught will need later to be revised on the
basis of new scientiď¬c knowledge. Law students should not be taught only to look to
the past or to the case on point. They need to learn how to exercise their muscles of
imagination. Problem-based learning, simulations, and negotiations all offer not
only more active student participation but also concrete and contextual forums in
which students can begin to discover the need for and ability to undertake creative
Black, Charles L., Jr. The Humane Imagination. Woodbridge, CT: Ox Bow Press, 1986.
Cole, David. âHow to Skip the Constitution.â N.Y. Rev. of Books. Nov. 16, 2006 (available at
Cover, Robert M. âThe Supreme Court 1982 Term â“ Foreword: Nomos and Narrative.â
Harv. L. Rev. 97.1 (1983): 4â“68.
Fauconnier, Gilles, and Mark Turner. The Way We Think: Conceptual Blending and the
Mindâ™s Hidden Complexities. New York: Basic Books, 2002.
Gadamer, Hans-Georg. Truth and Method, 2d rev. ed. Trans. Joel Weinsheimer and Donald
G. Marshall. New York: Crossroad, 1992.
Hart, H. L. A. âPositivism and the Separation of Law and Morals.â Harv. L. Rev. 71.4 (1958):
Lakoff, George, and Mark Johnson. Philosophy in the Flesh: The Embodied Mind and Its
Challenge to Western Thought. New York: Basic Books, 1999.
Mannheim, Karl. Ideology and Utopia. New York: Harcourt, Brace and World, 1936.
McGinn, Colin. Mindsight: Image, Dream, Meaning. Cambridge, MA: Harvard Univ. Press,
The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks
upon the United States, 2004a (available at http://www.9-11commission.gov).
The 9/11 Commission Report: Final Report of the National Commission on Terrorist
Attacks upon the United States: Executive Summary, 2004b (available at http://www.
Law and Creativity 87
Rescher, Nicholas. Imagining Irreality: A Study of Unreal Possibilities. Chicago: Open Court,
Ricoeur, Paul. Lectures on Ideology and Utopia. Ed. George H. Taylor. New York: Columbia
Univ. Press, 1986.
. Lectures on Imagination. 1975 (unpublished lectures delivered at the University of
. âThe Metaphorical Process as Cognition, Imagination, and Feeling.â In On
Metaphor. Ed. Sheldon Sacks. Chicago: Univ. of Chicago Press, 1979, 141â“57.
. The Rule of Metaphor: Multi-Disciplinary Studies of the Creation of Meaning in
Language. Trans. Robert Czerny. Toronto: Univ. of Toronto Press, 1977.
Stefancic, Jean, and Richard Delgado. How Lawyers Lose Their Way: A Profession Fails Its
Creative Minds. Durham, NC: Duke Univ. Press, 2005.
Warnock, Mary. Imagination. Berkeley: Univ. of California Press, 1976.
West, Robin. Re-Imagining Justice: Progressive Interpretations of Formal Equality, Rights, and
the Rule of Law. Burlington, VT: Ashgate, 2003.
11 The Stories of American Law
robert l. hayman jr. and nancy levit
Caleb was ď¬nishing the ď¬rst grade, and although it couldnâ™t be said that he loved
school, he certainly did love his teacher. Ms. Casey was her name, and she seemed
to adore all the kids.
One of the kids in Calebâ™s class was named Gabrielle, and late in the school year,
Caleb announced to his parents, âMs. Casey likes Gabrielle the best.â He said it
matter-of-factly, without a hint of envy or disappointment, but still, it wasnâ™t the
kind of thing that his parents wanted to let stand.
âWe are sure,â they told him, âthat Ms. Casey likes all the kids equally.â
âYeah, probably,â he replied, âshe likes all the kids equally.â He took off his
glasses, and rubbed his eyes. âAnd she likes Gabrielle the best.â
They knew better than to argue the point. As parents, they had learned what
lawyers too often forget: that some arguments are not worth having. Instead, they
asked him: âWhat makes you think Ms. Casey likes Gabrielle the best?â
He pondered it. âWell, Ms. Casey put a sign on Gabrielleâ™s desk.â
âWell, what did the sign say?â
âI donâ™t know, âhe said, âI canâ™t read. Donâ™t you remember that?â
âYes, we remember. Well, what do you think the sign said?â
âHmm,â he literally stroked his chin, assuming his most pensive pose. âProba-
bly,â he offered, âthe sign said â˜I like Gabrielle the best.â™â
You most likely see where this is heading more clearly than Calebâ™s parents did at
the time; there was no persuading Caleb that he was wrong. He saw in that sign â“ or
claimed to see in that sign â“ what he believed to be the case, and unless his parents
produced that sign to show him otherwise, he wasnâ™t budging from his view. And
frankly, even if they had that sign, we doubt that heâ™d trust their translation.
We felt bad when we ď¬rst read that young Andy Meeks âsuffered from attention
deď¬cit hyperactivity disorder and dyslexia,â and that he couldnâ™t go to the Seattle
school that was arguably best for him. It was Chief Justice John Roberts who told
us about Andy â“ he did it in his opinion for the Court in Parents Involved, the last
desegregation case â“ and weâ™re pretty sure that he wanted us to feel bad. We think,
though, that he wanted us to feel bad â“ or maybe even angry â“ because Andy was
| 88 |
The Stories of American Law 89
being victimized because of his whiteness, which was preventing him from going
to a school were there were already too many white kids.
But thatâ™s not why we felt bad. We felt bad â“ and yes, a little angry â“ to learn
that another kid was being made to suffer from his perceived disabilities. We have
seen too much of this sort of suffering. And we thought that it was wrong for
the chief justice to exploit Andy this way, particularly seeing as how it was the
Courtâ™s crabbed interpretations of the Individuals with Disabilities Education Act
and section 504, and its regressive conceptions of disability and equality, that to a
very signiď¬cant degree likely caused Andy needlessly to suffer.
A lot of the suffering in the world is the result of the way that we have constructed
disability. And a lot of the suffering in the world â“ and especially in the United
States â“ is the result of the way that we have constructed race. In both cases,
isolation causes a lot of the suffering, an isolation that follows from a construction
of differences as something abnormal or subnormal.
We think thatâ™s what racial segregation was all about, and we think the boldness â“
and the beauty â“ of the opinion in Brown v. Board of Education rested principally
in its willingness to confront this truth. Enforced segregation â“ even if it was
enforced equally on everyone â“ was harmful. It was not harmful in some abstract,
theoretical, ď¬rst-principle-violating sort of way, but it was harmful in concrete,
experiential, people-hurting kinds of ways. And the harms of segregation were
inď¬‚icted â“ intentionally and obviously â“ on African Americans, whose perceived
inferiority was both the causa causans of Jim Crow and its inevitable effect.
Racial segregation caused African Americans to suffer. Because it caused suffer-
ing, it was bad; because the suffering was visited unequally on African Americans,
it was also unconstitutional.
That is the argument made over and over again in the Brown briefs, and in
the oral arguments. It is the argument ultimately accepted by the Brown Court,
which felt compelled to support its conclusion with a fairly cursory reference to the
social science evidence, documenting the unequal harms of segregation. And the
broader societal harms of segregation â“ elaborated on at considerable length in
the amicus submissions from the United States â“ stem entirely from this injustice,
from discrimination against minority groups, and from its consequent impacts on
Americaâ™s standing in the world.
Segregation was part of a racial caste system. Thatâ™s why it was harmful. And
thatâ™s why its defenders clung to it so desperately.
Hadnâ™t it always been about caste? We thought thatâ™s what we had read in the
record of the Reconstruction congresses. We thought thatâ™s what we had read in
Justice Harlanâ™s dissent in Plessy (âThere is no caste here.â). We thought thatâ™s what
we had read in the Brown briefs, and in the histories of resistance to desegregation.
But thatâ™s not what we read in the opinion of the Court in Parents Involved; it says
not one word about caste. It says not one word about the harms of racial segregation.
The only harms it recognizes are the harms that inhere in the bare invocation of
race. Race consciousness, it advises, is harmful, regardless of its motives, and the
proof of that critical fact is to is to be found in, well, a few scattered opinions of
fairly recent vintage, mostly concurrences and dissents, which do indeed say that,
90 Robert L. Hayman Jr. and Nancy Levit
over and over again (the Court âapparently believing, with the Bellman, that what
it says three times must be trueâ; Cohen 1935: 820).
Oh, and the Brown briefs. Thereâ™s proof there, too, according to the Parents
Involved Court â“ a sentence broadly condemning differential treatment based
on race. And, the Court says, the oral arguments: Robert Carter, lawyer for the
schoolchildren, had argued that no state could âuse race as a factorâ under the
Judge Carter, now ninety, was not pleased by this appropriation of his words.
âItâ™s to stand that argument on its head,â he responded, âto use race the way they
use it now.â But the fact of his displeasure, clearly, should not interfere with a good
Maybe Judge Carter is wrong. Maybe he really was arguing for color blindness,
not against caste. And maybe Jack Greenberg is wrong too (âThe plaintiffs in Brown
were concerned with the marginalization and subjugation of black people. They
said you canâ™t consider race, but thatâ™s how race was being used.â) (Liptak 2007:
A24), and William T. Coleman (âItâ™s dirty pool, to say that the people Brown was
supposed to protect are the people itâ™s now not going to protect.â) (âCourt Strikes
Blowâ 2007: 8A). And, of course, Thurgood Marshall. Maybe none of them really
knew what Brown was about.
We do not know the elements of narrative truth. We know that the opinion in
Parents Involved was entirely predictable. But that doesnâ™t make it true. We know
that the Court had the power to do what it did, and that the chief justice carefully
aligned his opinion with prior decisions, and that the chief justice did what the
president who appointed him wanted him to do, and did what the supporters of
the president wanted him to do, and that the president was supported by a majority
of the voters in the election preceding the chief justiceâ™s appointment. But none
of that makes it true â“ any more than it is true that there are weapons of mass
destruction in Iraq, or that Saddam Hussein was behind September 11, or that the
science is equivocal on global warming.
But then again, it is not less true because two-thirds of Americans disapprove
of the job the president is doing. And the opinion in Parents Involved is not
rendered demonstrably untrue by the failure of the Court to ground it in the text
of the Fourteenth Amendment, or the history of the Thirty-Ninth Congress, or
the available evidence on the construction of race and inequality.
And yet â“ Brown seems true and Parents Involved seems not. We cannot say
precisely what separates them, but we think it has something to do with suffering.
And understanding. And, in the ď¬nal analysis, love.
We need to learn, we think, the elements of narrative truth. Or our children will
not believe us when we tell them that Ms. Casey really does not like Gabrielle the
Let us tell you a story about legal realism. The ď¬rst legal realism was born of
sociologically trained legal theorists, who criticized the formalist model of law
The Stories of American Law 91
as a collection of âpaper rules,â and the natural law concept of law as principles
dictated by a âbrooding omnipresence in the skiesâ (Llewellyn 1934: 210). These
realists saw law as dynamic, judges as policy makers who were inď¬‚uenced by their
own ideologies, and the primary task of legal academics as formulating a functional
approach to law, one that would explain law according to its social purposes, rather
than in terms of abstract concepts (âtranscendental nonsenseâ; Cohen 1935).
The ď¬rst legal realism had a number of descendants: the law and society move-
ment, normative law and economics, and various critical theories. Now, at the turn
of the twenty-ď¬rst century, it has yielded a ânew legal realism,â one that weaves
together a number of the philosophical strands from the ď¬rst effort: the interplay of
law, social science, and political analysis; skepticism about the prospects for formal
rules to generate social change; and empirical investigations, using the methods of
the social sciences, into a wide range of questions about the formation and impact
Like the ď¬rst legal realism, the new legal realism is acutely concerned with âlaw
in actionâ â“ developing understandings of the role of law in relation to social hier-
archies, the distributive consequences of law, and the prospects for law to bring
about progressive social change (Gulati and Nielsen 2006: 797). It renews attention
to the architecture of law (e.g., the public-private distinction) and to the effects
of economic status on political rights (Balkin 1990: 381â“2). It embraces a com-
mitment to âbottom-upâ research, which emphasizes examinations of âeveryday
experienceâ to assess âthe impact of law on ordinary peopleâ™s livesâ (Erlanger et al.
The new realism is also interdisciplinary in multiple ways. It encompasses greater
engagement between legal theorists and social scientists, including conversations,
critique, and collaboration. Social scientists â“ sociologists, anthropologists, social
psychologists â“ are publishing in law reviews, law professors are producing empir-
ical legal scholarship, and theorists in all disciplines are blogging and bringing the
fruits of their research to a wide public audience. The empirical work is increasingly
sophisticated, with complex quantitative studies using multiple regression analyses
and Bayesian methods. Even the qualitative or interpretive work â“ ethnographic
studies, microinstitutional analyses, and examinations of local cultural practices â“
is methodologically more reď¬ned (Rubin 1996).
The increased emphasis on empiricism includes not only a receptivity to social
science methods in law but also a more nuanced understanding of interpenetrations
between the disciplines, so that empirical work is more than just âthe means
of investigating questions formulated by lawyersâ (Erlanger et al. 2005: 337). It
also encompasses a more sophisticated use of quantitative methods, more reď¬ned
empirical explorations of judicial ideology on voting behavior, the wide-scale use
of rational choice theory and economic models to understand human decision
making, greater attention to standpoint epistemology or situated knowledge in the
legal systems of various cultures, and a reliance on experimental studies and other
social science research by courts (Cross 1997; Farber 2001).
But empiricism seems not quite enough; in a sense, it proves its own limita-
tions. To adequately describe legal decision making, it evolves; multivariate analysis
must nearly be omnivariate â“ such, we have learned, is the importance of context.
92 Robert L. Hayman Jr. and Nancy Levit
As an instrument of persuasion, the knowledge generated by empirical works
proves remarkably unstable; studies beget counterstudies, facts produce counter-
facts, all in an endless cycle of skepticism. And then there are those things not easily
quantiď¬ed, not easily objectiď¬ed, not easily reduced to a determinate essence: our
aspirations, our motivations, the bounds â“ or boundlessness â“ of our comprehen-
sion and our compassion.
What we are left with is the words. It is a return of sorts â“ to rhetoric, to forms.
But it is not classical rhetoric; it is not a revived formalism. The task is different
now â“ as the realist movements, old and new, have each peeled away levels of
naÂ¨vetÂ´ . The modern student of narrative may begin and end with the words, but
he or she knows now that not all the words are written.
Thus, the new realism also suggests an alternative path to empiricism, one that
focuses more on the narrative dimensions of law. The original realists saw sto-
ries primarily as ethnographic accounts or case studies. Many focused on appel-
late decisions to understand legal doctrine; others understood the importance of
examining trial-court decision making (Frank 1949). Karl Llewellyn once joined
anthropologist E. Adamson Hoebel (1941) to undertake a project on case stud-
ies of law making and dispute resolution among the Cheyenne. Llewellyn spent
just ten days among the Cheyenne, and âa photograph taken at the time shows
Llewellyn and his wife seated in the back seat of an open convertible with elderly
Indians being led up to him to be interviewedâ (Conley and Oâ™Barr 2004). Still, he
recognized that for indigenous people, in the oral tradition, stories of individual
cases were the foundations of their legal systems.
The new realists see a variety of dimensions to the narrative project. They see
narrative as framework, as methodology, as evidence, as plural truths, and as a
means of fundamentally reshaping legal doctrine.
They also tell stories. Beginning in the late 1970s, they have told parables, alle-
gories, and real stories of their own experiences and those of their clients (Alď¬eri
1991; Bell 1987; Dworkin 1977; Williams 1991). These stories have raised aware-
ness â“ of discrimination based on identity characteristics (race, gender, sexual
orientation, disability), of unequal treatment based on class, of the absence of fair
process based on power differentials. They have done more: they have changed the
lens through which we view legal experiences. Stories insist on the importance of
local knowledge and perspective; as such, they have been instrumental in incor-
porating the voices of outsiders â“ particularly of subordinated groups â“ whose
narratives have been omitted in the development of law and legal theory.
The turn toward storytelling has fundamentally changed the way we think about
legal theory, and law. Scholars like Richard Delgado and Catharine MacKinnon
have demonstrated that judgesâ™ opinions in legal cases were merely stories too â“
they simply told the dominant narrative. Critical legal studies writers, feminist
legal theorists, and critical race theorists thus confronted the âjust-soâ stories of
the legal academy and told counterstories to challenge the âreceived wisdomsâ
(Delgado 1989: 2413).
Legal theorists soon began to recognize what historians and practicing lawyers