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Taking Away the Bad Guy’s Gun: Designing ConstitutionalMeasures to Prevent Dangerous Individuals from Acquiring Firearms
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Retribution Without Rehabilitation: How the “Troubled Teen Industry” Infringes on the Rights of Privately Placed Youth
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Reciprocal Legal Narrative: Climate Change, Judicial Authority, and the National Apocalyptic in Juliana v. United States
No full textHow can lawyers convince courts to “do the right thing” in the face of unfavorable law? That is, how can they persuade courts to take some judicial action that a judge explicitly acknowledges is ethically required yet prohibited by governing doctrine? In Juliana v. United States, a landmark climate change case, a 2-1 Ninth Circuit decision held that a number of youth plaintiffs had failed to establish Article III standing. The appellate panel found that the harms asserted— governmental policies amounting to violations of the plaintiffs’ constitutional right to a functional climate system—were not redressable, even assuming the as-yet unrecognized right existed. Yet the majority opinion is marked by a sense of unease and regret. The court repeatedly lamented that while there is a clear ethical obligation to help the plaintiffs, the judiciary has neither the authority nor the ability to meet that obligation.
This Article proposes a model of legal argument called reciprocal legal narrative. It argues that the model can be useful for situations like that in Juliana, where courts recognize a moral obligation to intervene, but insist that the law bars them from doing so. Reciprocal legal narrative can provide a platform for judges to engage in dialogue-based, collaborative, norm-driven narrative reasoning. It is structured around a creative partnership between the lawyer and the court. The judge, in her written opinion, “co-authors” a legal narrative that revises and expands on the lawyer’s “first draft” of the story based argument that appears across briefs and oral arguments. Reciprocal legal narrative is a subspecies of narrative persuasion, and this Article provides a theoretical framework for the concept that builds on Applied Legal Storytelling scholarship and narrative theory in general.
A close reading of the majority and dissenting opinions in Juliana demonstrates reciprocal legal narrative in action. To support her finding that the plaintiffs established redressability, Judge Josephine Staton crafts a dissent that builds on the plaintiffs’ nascent legal narrative (what I call the “American Environmental Apocalypse”) and fashions it into her own more persuasive, legally sound narrative (the “National Apocalypse”). The dissent’s reciprocal legal narrative exposes the shortcomings of the majority’s formalist approach; it exhibits an egalitarian, cooperative view of judge-made law; and most importantly, it converts a moral obligation to act on climate change into a judicial duty to do so. Although Judge Staton was in the minority in this decision, her example of reciprocal legal narrative provides a blueprint for future litigants facing similar circumstances. By employing reciprocal legal narrative, advocates can persuade courts to use creative, narrative reasoning as a means of reconciling existing law with core social values—without overstepping the bounds of judicial authority
