Two kinds of "storytelling"
VOLOKH at LAW.UCLA.EDU
Thu Aug 7 12:05:17 PDT 1997
Before we get too much into criticism of storytelling, or into
suggestions of hypocrisy, it seems to me that there are two ways of
One way is by suggesting that the occurence of the single event
recounted in the story itself proves that such events are common. I
agree entirely that this is logically unsound, for all the reasons
Michael mentioned. I'd guess that most people on this list,
including Rick, whose story triggered this discussion, would also
A second way is by using the story as an illustration of a
broader point, in order to remind people that such things *do*
happen, and to give them a concrete sample which could illustrate the
broader issue better than an abstract hypo would.
Thus, for instance, whenever I write about the breadth of
workplace harassment law, I begin by giving real cases where
harassment law has been interpreted broadly. I then give the
theoretical argument for why we should expect many such cases to take
place. If I just gave the cases, I think my argument would be weak,
precisely because someone could easily dismiss the cases as outliers.
But if I just gave the logical explanation of how "severe or
pervasive enough to create a hostile or abusive work environment" is
a broad rule that could include political, religious, artistic, etc.
speech, my argument would also be weak, because it would lack the
concrete tangibility that specific factual examples give.
Of course, in a perfect world I'd have a study which estimates
the exact magnitude of the problem, and tells us that every day
328 incidents of religious proselytizing and 15,197 off-color
jokes are chilled by fear of harassment liability. But of course I
have no such study, and I'm not sure one is possible. Thus, the
best approach under the circumstances, I think, is to give a logical
explanation of why we should think this is common (the law is
facially broad enough to cover this, there are two kinds of chilling
effect that increase the risk, and so on), coupled with factual
examples that make the logical arguments come alive for people.
Returning to this situation: As I understand, Rick was
definitely *not* claiming that just because this happened to Tim, the
entire public educational system is corrupt. Rather, over the past
many months, Rick and others have provided various theoretical
arguments explaining why we *should* expect a good deal of
discrimination in public schools against religious beliefs. One can
certainly disagree about the magnitude of this discrimination, but I
think the arguments do show that we should expect some level of it.
The Tim example then (1) helps bring this abstract argument to life,
and (2) provides an interesting concrete hypothetical against which
to test various theories of how the educational system should treat
The existence of these two kinds of storytelling (and obviously
they are only two points on a continuum) is relevant because it
provides an explanation for why people might rail against
"storytelling" in one context and embrace it in another. They may
properly fault storytellers of the first kind (regardless of the
storytellers' politics) but embrace storytelling of the second kind.
Or they may accept some storytelling of the second kind, for instance
when the broader explanation seems plausible, but reject other
storytelling of the same kind, for instance when the broader
explanation doesn't persuade that the incident is anything but an
"She told me again she preferred handsome men Eugene Volokh
But for me she would make an exception" UCLA Law School
L. Cohen, "Chelsea Hotel No. 2" 405 Hilgard Ave.
L.A., CA 90095
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