Teaching Health Law Legal Archaeology: Recovering the Stories behind the Cases

For essays that explore the narrative movement, see Brooks P. Gewirtz P. , eds., Law's Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1997). Another strand of that movement can be traced to the work of the late R. Cover, a notable example of which is contained in his book Narrative, Violence and the Law: The Essays of Robert Cover, Martha Minow, Michael Ryan, and Austin Sarat (Ann Arbor: University of Michigan Press, 1993).

For example, the Foundation Press has an entire “law stories” series that includes Constitutional Law Stories by Dorf M. C. ; Civil Procedure Stories by Clermont K. M. ; Property Stories by Morriss G. K. Morriss A. P. ; Torts Stories by Rabin R. L. Sugarman S. D. ; Contract Stories by Baird D. G. ; Administrative Law Stories by Strauss P. L. ; International Law Stories by Noyes J. E. ; Evidence Stories by Lempert R. O. ; Business Tax Stories by Bank S. A. ; Environmental Law Stories by Applegate J. ; and Legal Ethics Stories by Rhode D. L. Other publishers have also embraced the trend.

Maute J. L. , “The Value of Legal Archaeology,” Utah Law Review 2000, no. 2 (2000): 223.

Key authors in the creation of fictionalized narratives, allegories, or parables are Bell D. , Faces at the Bottom of the Well: The Persistence of Racism (1992), and Delgado R. , The Rodrigo Chronicles (New York: New York University Press, 1996).

See, for example, Charon R. , Narrative Medicine: Honoring the Stories of Illness (New York: Oxford University Press, 2006) and Mullan F. Ficklen E. Rubin K. , eds., Narrative Matters: The Power of the Personal Essay in Health Policy (Baltimore: Johns Hopkins, 2006). Physicians such as Abraham Verghese, Atul Gawande, and Barron Lerner regularly write within this genre.

Geertz C. , “Thick Description: Toward an Interpretive Theory of Culture,” in The Interpretation of Cultures: Selected Essays (New York: Basic Books, 1973): At 3–30. Geertz borrowed that phrase from philosopher Gilbert Ryle.

Davis D. S. , “Rich Cases: The Ethics of Thick Description,” Hastings Center Report 21, no. 4 (July-August 1991): 12–17. This focus on narrative detail owes much to the work of the Annales school of French historians, including such figures as Fernand Braudel and Emmanuel Le Roy Ladurie. Their thoroughly contextualized histories, often including stories of “low culture” and peasant life, provided a contrast to older histories that emphasized the “high culture” of the court and palace and revolved around political and diplomatic history. Later Annales historians sought to resurrect the heretofore absent “voices” of the poor and dispossessed. For example, a book like The Return of Martin Guerre by N. Zemon Davis demonstrates a method of scholarship that relies on legal documents to unearth a peasant's tale of misappropriated identity.

See Maute , supra note 3; Threedy D. L. , “Legal Archaeology: Excavating Cases, Reconstructing Context,” Tulane Law Review 80, no. 4 (2006): 1197–1238.

Id. (Maute), at 224. I often refer to the product of legal archaeology as “Paul Harvey history,” which provides “the rest of the story.” This famous radio commentator's programs regularly included vignettes of famous people, followed by obscure details that did not make it into their official biographies, or similar revelations about important world events whose full story often represents a contrast to the conventional wisdom.

Garrow D. J. , Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (New York: MacMillan, 1994): At 210–211.

Robert Bork condemned the opinion in Griswold v. Connecticut as a case involving two doctors whom he incorrectly described as only hypothetically subject to fines by Connecticut for distributing information about contraception. Id., at 268.

A series of articles by Gene Teitelbaum identified the location of most state and federal court documents as of the 1980s. See Teitelbaum G. , “United States Supreme Court Briefs and Records: An Updated Union List,” Legal Reference Services Quarterly 2, no. 1 (1982): 9–46; Teitelbaum G. , “United States Courts of Appeals Briefs and Records: An Updated Union List,” Legal Reference Services Quarterly 3, no. 3 (1983): 67–85; Teitelbaum G. , “State Courts of Last Resort's Briefs and Records: An Updated Union List,” Legal Reference Services Quarterly 5, no. 4 (1985): 187–228; and Teitelbaum G. , “Intermediate Appellate State Courts' Briefs and Records: An Updated Union List,” Legal Reference Services Quarterly 8, no. 4 (1988): 159–207. See also Federal Court Records: A Select Catalogue of National Archives Microfilm Publications , National Archives Trust Fund Board, Washington D.C., 1991. Since the inception of electronic record-keeping, many courts have begun to accept filings online, and much is available in digital format; for example, see <http://www.oyez.org/> (last visited June 24, 2008) for U.S. Supreme Court records.

For example, Caron's P. Tax Stories: Digital Supplement may be found at <http://www.law.uc.edu/taxstories/> (last visited June 24, 2008).

For the New York Times archive online, see <http://www.nytimes.com/ref/membercenter/nytarchive.html> (last visited June 24, 2008).

Many universities are now subscribing to the Proquest database (Proquest.com), which includes archives for newspapers such as the Christian Science Monitor (1908–1980), Boston Globe (1872–1923), Atlanta Journal-Constitution (1868–1939), Hartford Courant (1764–1984), Chicago Tribune (1852–1984), Washington Post (1877–1986), and the Los Angeles Times (1881–1984).

For example, The Dallas Morning News (1885–1977), available at <http://nl.newsbank.com/nl-search/we/Archives?p_action=keyword&p_product=DMEC&p_theme=dmec> (last visited June 20, 2008).

Newspaper Archive Online, available at <http://www.newspaperarchive.com/> (last visited June 20, 2008).

The Library of Congress Web page provides a form to assist searches in their newspaper holdings; it is available at <http://www.loc.gov/rr/news/lcnewsp.html> (last visited June 20, 2008).

Parmet W. E. Goodman R. A. Farber A. , “Individual Rights versus the Public's Health — 100 Years after Jacobson v. Massachusetts,” New England Journal of Medicine 352, no. 7 (February 17, 2005): 652–655.

Lombardo P. A. , “Phantom Tumors and Hysterical Women: Revising our View of the Schloendorff Case,” Journal of Law, Medicine & Ethics 33, no. 4 (2005): 791–801. Popular magazines such as Time or The Nation are also rich sources for accounts lawsuits of the past. Both of those magazines provide free online databases. See Time, available at <http://www.time.com/time/magazine/archives> (last visited June 20, 2008); The Nation, available at <http://www.thenation.com/archive/> (last visited June 20, 2008).

JSTOR , available at <http://www.jstor.org/> (last visited June 20, 2008). For example, JSTOR contains early editions of Science, the Hastings Center Report, and the American Journal of Psychology.

ProQuest , available at <http://proquest.umi.com/pqdweb?RQT=302&cfc=1> (last visited June 24, 2008). Commentary in law reviews and bar journals may be found in the digitized archive at Hein Online, available at <http://heinonline.org/> (last visited June 20, 2008).

“Mrs. Packard's Persecution,” Liberator (Boston), December 30, 1864. Reprinted in American Periodical Series 34, at 212.

Young J. H. , “Three Southern Food and Drug Cases,” The Journal of Southern History 49, no. 1 (February 1983): 3–36.

McCorvey N. , I Am Roe: My Life, Freedom of Choice and Roe v. Wade (New York: Harper-Collins, 1994).

Colby W. H. , Long Goodbye: The Deaths of Nancy Cruzan (Carlsbad, CA: Hay House, 2002).

Donaldson K. , Insanity Inside Out (New York: Crown, 1976).

See, for example, Trimble M. , “Archives and Manuscripts: New Collecting Areas for Law Libraries,” Law Library Journal 83, no. 3 (1991): 429–450.

Brandt A. M. , The Cigarette Century: The Rise, Fall and Deadly Persistence of the Product that Defined America (New York: Basic Books, 2007).