Failed Revolutions: Social Reform and the Limits of Legal Imagination

By Richard Delgado; Jean Stefancic | Go to book overview

3
Why Do We Tell the Same Stories? Law Reform, Critical Librarianship, and the Triple Helix Dilemma

A remarkable sameness afflicts many scholarly articles, books, and doctoral dissertations. Most blame peer review, tenure and promotion requirements, and ivory-tower isolation. In law, additional restraints operate: stare decisis (the insistence that every statement be supported by a previous one), bar requirements, and the tyranny of the casebook.

Although a few legal innovators manage to escape these constraints, an impartial observer casting an eye over the landscape of the law would conclude that most of our stories are notably similar--variations on a theme of incremental reform carried out within the bounds of dominant Western tradition.

We believe that there is an additional and seldom noticed--though much more potent--means by which this sameness is created and maintained: namely, professionally prepared research and classification systems that lawyers employ in researching and understanding the law. We single out three of these in wide use today: the Library of Congress subject heading system, periodical indexes, and the West Digest System. These devices function like DNA--enabling the current system to replicate itself endlessly, easily, and painlessly. Their categories mirror precedent and existing law; they both facilitate traditional thought and constrain novel approaches to the law.

A scholar who works within these systems finds the task of legal research greatly simplified. Beginning with one idea, such systems quickly bring to light closely related ideas, cases, and statutes. 1 They are like a workshop full of well-oiled tools, making work easier. Relying on them exclusively, however, renders innovation more difficult; innovative jurisprudence may require entirely new tools, ones often left undeveloped or unnoticed because our attention is absorbed with manipulating the old versions. 2

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