We Don’t Want to Hear It: The Moral and Psychological Legitimacy of Exclusion in the Law

Kenworthey Bilz, Northwestern University Law School

Abstract

This article challenges a fundamental tenet of the “narrative” model of legal judging, which argues that legal decision makers both do and should render legal judgments by assembling sensible stories out of evidence (as opposed to relying on Bayesian-type, linear models). This model is usually understood to demand that before we may judge a situation, we must give the parties the opportunity to tell their story fully, in a manner that invites empathy from the decisionmaker. I call this the “moral inclusionary approach” to the narrative model of judging. Using both hard evidence from empirical psychological research in emotions and perspective-taking, and the more intuitive techniques of literary criticism, I argue that the law in practice gives equal weight to a moral 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 it does so on moral grounds, not (only) because limiting the evidence would improve the “accuracy” of the legal judgment. That is, conventionally, as both a descriptive and normative matter, impoverished narratives can be better than enriched ones in leading decisionmakers to morally acceptable legal judgments.