Pamela A. Wilkins, Confronting the Invisible Witness: The Use of Narrative to Neutralize Capital Juror's Implicit Racial Biases, 115 W. Va. L. Rev. 305 (2012).
INTRODUCTION: The past ten to fifteen years have seen an explosion in legal scholarship concerning potential applications of cognitive science --particularly of psychological research concerning stereotyping and implicit biases--to legal doctrines, structures, and theories. The questions raised by the scholarship are fascinating: Should the legal system reconceive its employment discrimination doctrines? Should jury selection be rethought? Is national school reform legislation doomed to fail due to its failure to account for parents' implicit biases? Underlying all of these questions is a sometimes tacit and sometimes open challenge to the primacy of rational choice theory, which has long driven much judicial decision-making.
Recent years have also seen renewed scholarly interest in the use of both narrative and metaphor in law. All lawyers--litigators most obviously--are storytellers, but the legal academy all too often has treated narrative and metaphor as the "darker brother[s] . . . [sent] to eat in the kitchen/When company comes." The light-skinned brother, considered smarter, more effective, more respectable, is, of course, logical, syllogistic reasoning. Recently, however, legal scholarship has invited narrative and metaphor to the table, and this invitation has yielded stimulating discourse on a variety of topics, such as the role of narrative in legal education, the implications of using certain metaphors in custody disputes, and the use of myth in constitutional litigation.