“Great stories make ‘what is’ clear. They don’t tell you what you ought to do. … The more you understand ‘what is,’ the less suffering you go through, because you’re living in the ‘is’ rather than the ‘ought.’”

By accident, this morning I stumbled across Rich Roll’s interview with Robert McKee, screenwriting guru and author of Story: Substance, Structure, Style, and the Principles of Screenwriting. The quote above comes about 46 minutes into the podcast.

Telling the Story of Immigration Law

I’ve struggled for a while now to articulate why my scholarship on immigration law has evolved in the direction it has. I’m now spending my days writing a biography about an unknown guy who worked for the State Department.

Why? Shouldn’t a law professor, I dunno, profess the law?

Robert McKee helped point to the reason.

Law and the Limits of ‘Ought’

Law dwells, mostly, in the realm of “ought.” That’s exactly what law does, it tells you what you ought to do and what you ought not to do. That’s why we have it.

As we represent clients in the Immigration Clinic, however, we see all kinds of things that the law says — all kinds of “oughts” — that really serve nobody. They traumatize at random. They undermine the rule of law. They make no one safer.

And do I even need to waste any space here talking about the likelihood of achieving comprehensive immigration reform in our lifetimes?

There has to be another way.

The role of story

Maybe “ought” is the problem with the law.

As McKee says, “is” reduces suffering. It brings us into the present moment. From there, we can make sense of life, of suffering. We can act.

In the law, we almost always think about “ought.” But “ought” locks us in. It forms rigid distinctions between good and bad. Good behavior, bad behaior. Good people, bad people. “We,” of course — whoever “we” is — are always the “good” people.

But story breaks down those rigid categories. That’s its job. Is Tony Soprano “good” or “bad”? If you relate to him, which one are you?

The Story of Immigration Law

We need story in immigration law.

Immigration historians and migrant writers have done some work to tell the story of immigration (though there’s lots more work to be done there).

But what about the story of the people who make decisions about immigration? In our political discourse, we have only two types of such people: “good” people and “bad” people. And “we,” of course, are always the “good” people.

We’ll never get to immigration reform this way.

We need story not just about immigration, but also about immigration law. About the decisions people made, and the people who made those decisions. About the people — you and me — who are making those decisions today.

If we can hear, can feel those stories, we can get out of “ought” and step into “is.”

From there, we may be able to reduce the suffering that our immigration law causes to so many.

Law and Story

The law and literature movement has been around a pretty long time. It has different shapes and has served different functions for different practitioners. But perhaps story has an essential role for law reform. I’m writing biography because I needed, badly, to get into “is” in my legal work. If you’re a frustrated lawyer, maybe a little more “is” could help in your field, too.