Although recent debates would suggest that narrative scholarship is brand new,4 lawyers, judges, and law professors, like all humankind, have always offered stories for illustration or support or to make a point in an indirect, and often more effective, way. Learned Hand's story about telling Justice Holmes to "do justice" is one widely-used example, offered by many writers in addition to Judge Bork and Professor Chayes. Its popularity is easy to understand. The story has a substantive message, pithily expressed, on a basic jurisprudential issue; it involves two members of the pantheon; and it crams a lot of human interest and historical flavor into a few lines.

The exchange between the two judges is part of an age-old struggle to define the relation of law and justice and to deter mine to which the judge owes loyalty. Some distinction between law and justice, certainly as a descriptive matter and often as a normative one, is generally accepted. Law schools are famous for insisting on such a separation, and lawyers and nonlawyers alike easily accept the concept of an "unjust law" or a judicial decision that is "unfair" (or unjust) but "correct as a matter of law." The distinction is perhaps more often celebrated within the legal profession and more often lamented outside it.