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82 Geo. L.J. 1845 (1993-1994)
Authority, Credibility, and Pre-Understanding: A Defense of Outsider Narratives in Legal Scholarship

handle is hein.journals/glj82 and id is 1873 raw text is: ESSAY Authority, Credibility, and Pre-Understanding: A Defense of Outsider Narratives in Legal Scholarship MARC A. FAJER* Two recent law review articles, one by Daniel Farber and Suzanna Sherry' and the other by Mark Tushnet,/ critique the use of outsider narratives in legal scholarship. Both claim to be sympathetic critiques, yet both reach conclusions that are quite critical of the authors whose work they survey. Both raise two important concerns common to much criticism of narrative scholarship. The first is the question of authority: Why are these stories important enough for readers/listeners to take seriously? The second is the question of credibility: Why should we believe these stories are true? In their critiques, Farber, Sherry, and Tushnet, like other critics of narrative, fail to consider that outsider narratives do not take place in a vacuum. When members of traditionally disadvantaged groups tell stories about their lives, they do so against a highly textured background of existing stories. Stories about what it means to be African-American, to be a woman, or to be gay, for example, inform, to a greater or lesser extent, the beliefs of everyone in society. Yet, these stories often differ dramati- cally from the lived experiences of members of outsider groups. The existence of these background stories, which elsewhere I have called pre-understanding,3 both necessitates and complicates the presentation of * Professor, University of Miami School of Law. The author wishes to thank Jane Baron, Bill Eskridge, Michael Fischl, Lisa Iglesias, Christine Littleton, and Steve Schnably for helpful comments on earlier drafts and Wylie Allen and Marnie Mahoney for thoughtful discussion and moral support. Raquel Libman and Paul Ranis provided helpful research assistance. In addition, the author particularly wishes to thank Mark Tushnet, who gener- ously provided a detailed critique of an earlier draft. 1. Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807 (1993). 2. Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEO. L.J. 251 (1992). 3. See Marc A. Fajer, Can Two Real Men Eat Quiche Together?: Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men, 46 U. MIAMI L. REV. 511, 524 & n.65 (1992) (explaining that because of pre-understanding, advocates never operate on a clean slate). Gerald Lopez has used the term stock stories to identify these beliefs. See Gerald P. Lopez, Lay Lawyering, 32 UCLA L. REV. 1, 3, 5 (1984). I discovered the term pre-understanding in Anthony Alfieri's work on poverty law, in which he uses it to describe the set of beliefs lawyers may have about their clients before actually hearing the clients' stories. See Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 YALE L.J. 2107, 2123-24 (1991). 1845

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