Dangerous Tongues: Storytelling in Congressional Testimony and an Evidence-Based Solution

Abstract

The dangerous use of storytelling in making legislation has been largely ignored by legal academics. Although notable scholars, including Justice Antonin Scalia and Cass Sunstein, have written extensively about the use of legislative history in statutory interpretation, and much has been written about the use of storytelling in advocacy, the important role that stories play in the legislative process has been overlooked by the legal academy, outside of a few articles relating to criminal statutes.

The Congressional Record on a recent farm bill is full of stories told by special interests that draw on metaphors, archetypes, and myths. Snow White’s apple, the Feisty Octogenarian, and the Yeoman Farmer crowd out any consideration of dissenting voices, sound data, or good science. As Michel Foucault observed about institutions in general, in insisting on rituals that permit only special interest testimony packaged in a crowd-pleasing production, Congress asserted its power to the detriment of sound lawmaking.

This pioneering interdisciplinary article uses as its example the Food Safety and Modernization Act and draws on the work of linguists from the Pragmatics school and Deborah Tannen as well as critical theorists Michel Foucault and Norman Fairclough to describe the dangers in the act’s testimony. The article offers a solution interpolated from the world of clinical medicine to suggest applying evidence-based legislation to curtail the dangers of storytelling in Congressional testimony.

Keywords: storytelling, Congress, testimony, evidence-based, legislation, pragmatics, Foucault, food safety, Deborah Tannen, myth