Inferring and Explaining

132 InferrIng and exPlaInIng reason, as do their audiences—juries. Trial court judges reason. And academic lawyers, and a host of other legal scholars, reason. And sadly, not all legal reasoning counts as good legal reasoning. What is needed is something like a logic of legal reasoning. A surprising humanistic partner- ship of philosophy, particularly the philosophy of science, as well as literary theory, particu- larly narratology, ofers a promising outline of just such a logic of legal reasoning. As youmight have guessed, I believe that inference to the best explanation (IBE) forms the foundation of such a legal logic. One view of legal storytelling sees it candidly as a method for presenting an argument. Te goal of storytelling in law is to persuade an ofcial decisionmaker that one’s story is true, to win the case, and thus invoke the coercive force of the state on one’s behalf. 3 And many academic lawyers explicitly endorse IBE as the internal logic of the arguments that lawyers produce at trial. Te process of inference to the best explanation itself best explains both the macro-structure of proof at trial and the microlevel issues regarding the value of particular items of evidence. . . . Te probability- based accounts, rather than being an alternative, are parasitic on themore fundamental explanation-based considerations. 4 Tis nicely captures my portrayal of the trial between Tony and Corey, and we will use IBE and legal narrative as a way of looking at a cou- ple more murder trials directly. As much as I admire the storytelling move- ment in the law, many of its most strident cham- pions endorse a viewof legal narrative that I fnd deeply problematic. Consider the following very useful summary paragraph by two thoughtful and sympathetic critics. Many advocates of storytelling explicitly contrast rational argument and the more directly emotive power of stories. As Gerald Lopez tells us, “Stories and storytelling de-emphasize the logical and resur- rect the emotive and intuitive.” Te “epistemological claim” of feminist narratives, according to Kathryn Abrams, is that there are ways of knowing other than “scientifc rationality.” Radical feminist scholars— especially those using narrative as a methodology— thus reject the linearity, abstraction, and scientifc objectivity of rational argument. Mari Matsuda similarly recommends noncognitive ways to know the good. 5 I contend that these views are fundamentally mistaken. Now I certainly concede that stories can, and ofen do, reach intended audiences in ways that cold, structured syllogisms may not. I also grant that human emotion plays a signif- cant role in our ability to understand and suc- cessfully navigate the physical and social world. But none of this shows that there is not anunder- lying logic to successful storytelling. Indeed, I will be arguing that this logic has remark- ably close connections to “scientifc rational- ity,” and rather than being “noncognitive,” it is (while not exactly demonstrating “linearity, abstraction, and scientifc objectivity”) highly structured and promises in many cases, if not objectivity, at least reliable intersubjectivity.