Law Commons^™

I Want You To Panic: Leveraging The Rhetoric Of Fear And Rage For The Future Of Food, Iselin Gambert

Journal of Food Law & Policy

"Humanity Is About to Kill 1 Million Species in a Globe-Spanning Murder-Suicide. Only 11 Years Left to Prevent Irreversible Damage from Climate Change." Doomsday headlines like these are terrifying. But are they enough to make us act? The causes of the current climate crisis are many, but the science is clear that the meat and dairy industry shoulders much of the blame. Given the role the animal agriculture industry plays in perpetuating the climate crisis, combined with the harms the industry imposes on the animals and workers within it, politicians and governments—given their degree of power and influence—should ostensibly be …

“Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric Ruben, Joseph Blocher

Faculty Scholarship

A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as …

Dissenting From The Bench, Christine Venter

Journal Articles

This paper examines the oral dissents of Justices Antonin Scalia and Ruth Bader Ginsburg from the year 2000 to the times of their respective deaths. It explores the concept and purpose of oral dissent and details the kinds of cases in which each justice was more likely to orally dissent. The paper analyzes the kinds of rhetoric that each justice used to refer to their subject matter, and argues that Scalia's rhetoric evinces a view of the law as "autonomous", operating independently of the facts of the case. In contrast, Ginsburg's view espouses a view of the law as responsive …

Ethical Limitations On The State's Use Of Arational Persuasion, Nadia N. Sawicki

Nadia N. Sawicki

Policymakers frequently use arational appeals – such as those relying on emotion, cognitive biases, and subliminal messaging – to persuade citizens to adopt behaviors that support public goals. However, these communication tactics have been widely criticized for relying on arational triggers, rather than reasoned argument. This Article develops a fuller account of the non-consequentialist objections to arational persuasion by state actors, as well as the arguments in favor of such tactics, that have been presented by scholars of rhetoric, political theory, and cognitive science. The Article concludes by proposing ethically justifiable limitations on state communications that should be compelling to …

The Rhetorical Canons Of Construction: New Textualism's Rhetoric Problem, Charlie D. Stewart

Michigan Law Review

New Textualism is ascendant. Elevated to prominence by the late Justice Antonin Scalia and championed by others like Justice Neil Gorsuch, the method of interpretation occupies an increasingly dominant place in American jurisprudence. Yet, this Comment argues the proponents of New Textualism acted unfairly to reach this lofty perch. To reach this conclusion, this Comment develops and applies a framework to evaluate the rhetoric behind New Textualism: the rhetorical canons of construction. Through the rhetorical canons, this Comment demonstrates that proponents of New Textualism advance specious arguments, declare other methods illegitimate hypocritically, refuse to engage with the merits of their …

Ethical Limitations On The State's Use Of Arational Persuasion, Nadia N. Sawicki

Faculty Publications & Other Works

Policymakers frequently use arational appeals – such as those relying on emotion, cognitive biases, and subliminal messaging – to persuade citizens to adopt behaviors that support public goals. However, these communication tactics have been widely criticized for relying on arational triggers, rather than reasoned argument. This Article develops a fuller account of the non-consequentialist objections to arational persuasion by state actors, as well as the arguments in favor of such tactics, that have been presented by scholars of rhetoric, political theory, and cognitive science. The Article concludes by proposing ethically justifiable limitations on state communications that should be compelling to …

A Rhetorician’S Practical Wisdom, Linda L. Berger

Scholarly Works

For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal education. The curse persisted throughout the writing of The Law's Mystery.

For Jack, the essence of a …

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

All Faculty Scholarship

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in …

The Hermeneutical And Rhetorical Nature Of Law, Francis J. Mootz Iii

Scholarly Works

In its most venal manifestation, scholarly writing betrays the anxiety of influence by claiming to offer a radically new solution to age-old conundrums. The goal is to make a clean break from a traditional path of thought that has become trapped in a cul-de-sac, to make progress by finding a new way forward. Not so with Jean Porter’s work, and particularly her most recent book. Professor Porter demonstrates that thinking through an established tradition – one that has responded to numerous challenges within very different contexts over several millennia – can sometimes offer the most productive response to contemporary dilemmas. …

Zizek/Questions/Failing, Nick J. Sciullo

Nick J. Sciullo

In this article I am primarily concerned with presenting Slavoj Žižek3 as a legal theorist. Žižek has been a valuable contributor to critical theory and deserves a place in the pantheon of legal thinkers.

While his diverse writings are often relegated to other disciplines, they also position him as an important contributor to law and public discourse. I seek to illuminate how he mediates and interrogates the law by demonstrating how his scholarship is important to the lives of legal thinkers, questions of success and the law, capitalism, political practice, and terrorism. Because Žižek’s work is interdisciplinary and expansive, this …

Perelman's Theory Of Argumentation And Natural Law, Francis J. Mootz Iii

Scholarly Works

Chaim Perelman resuscitated the rhetorical tradition by developing an elegant and detailed theory of argumentation. Rejecting the single-minded Cartesian focus on rational truth, Perelman recovered the ancient wisdom that we can argue reasonably about matters that admit only of probability. From this one would conclude that Perelman’s argumentation theory is inalterably opposed to natural law, and therefore that I would have done better to have written an article titled “Perelman’s Th eory of Argumentation as a Rejection of Natural Law.”

However, my thesis is precisely that Perelman’s theory of argumentation connects to the natural law tradition in interesting and productive …

Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica Silbey

Faculty Scholarship

This Article argues that the open-source and anti-expansionist rhetoric of current intellectual-property debates is a revolution of surface rhetoric but not of deep structure. What this Article terms “the Access Movements” are, by now, well-known communities devoted to providing more access to intellectual-property-protected goods, communities such as the Open Source Initiative and Access to Knowledge. This Article engages Movement actors in their critique of the balance struck by recent law (statutes and cases) and asks whether new laws that further restrict access to intellectual property “promote the progress of science and the useful arts.” Relying on cases, statutes and recent …

How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis Of Metaphor, Narrative, And Imagination In Child Custody Disputes, Linda L. Berger

Linda L. Berger

We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing “a sea-change,” family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income. This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, …

Formalism And Realism In Ruins (Mapping The Logics Of Collapse), Pierre Schlag

Publications

After laying out a conventional account of the formalism vs. realism debates, this Article argues that formalism and realism are at once impossible and entrenched. To say they are impossible is to say that they are not as represented--that they cannot deliver their promised goods. To say that they are entrenched is to say that these forms of thought are sedimented as thought and practice throughout law's empire. We live thus amidst the ruins of formalism and realism. The disputes between these two great determinations of American law continue today, but usually in more localized or circumscribed forms. We see …

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

Linda L. Berger

No abstract provided.

Law In The Digital Age: How Visual Communication Technologies Are Transforming The Practice, Theory, And Teaching Of Law, Richard K. Sherwin, Neal Feigenson, Christina Spiesel

ExpressO

Law today has entered the digital age. The way law is practiced – how truth and justice are represented and assessed – is increasingly dependent on what appears on electronic screens in courtrooms, law offices, government agencies, and elsewhere. Practicing lawyers know this and are rapidly adapting to the new era of digital visual rhetoric. Legal theory and education, however, have yet to catch up. This article is the first systematic effort to theorize law's transformation by new visual and multimedia technologies and to set out the changes in legal pedagogy that are needed to prepare law students for practice …

Book Review Symposium: Introduction, Francis J. Mootz Iii

Scholarly Works

A foreword to a symposium held to discuss Gene Garver’s book, For the Sake of Argument: Practical Reasoning, Character and the Ethics of Belief (University of Chicago Press, 2004).

Political Advocacy On The Supreme Court: The Damaging Rhetoric Of Antonin Scalia, Stephen A. Newman

NYLS Law Review

No abstract provided.

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

ExpressO

The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.

The Ten Commandments As Secular Historic Artifact Or Sacred Religious Text: Using Modrovich V. Allegheny County To Illustrate How Words Create Reality, Ann N. Sinsheimer

Articles

In his essay, The 'Ideograph: A Link Between Rhetoric and Ideology', Michael Calvin McGee proposes that our system of beliefs is shaped through and expressed by words. We are consciously and unconsciously conditioned and controlled by the words we hear and use. Words carry ideology and convey and create meaning. Like Chinese characters, words are 'ideographs that 'signify' and 'contain' a unique ideological commitment', that is frequently unquestioned. McGee also suggests that by understanding that a single word can carry ideology and that ideology can be expressed in a single word, we are better able to expose and evaluate ideology …

Introduction To Law, Ethics, And Affirmative Action In America, Joseph P. Tomain

Faculty Articles and Other Publications

This article discusses the language of the opinion in Grutter v. Bollinger. The rhetoric and language that we use to address race is difficult, if not tortured. The article explains why Grutter should have been an easy case and a simple opinion, and the ways in which the final opinion was anything but simple.

Speech And Strife, Robert L. Tsai

Faculty Scholarship

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, I argue that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, I distinguish between formal legal argumentation …

Judicial Personality: Rhetoric And Emotion In Supreme Court Opinions, Laura Krugman Ray

Washington and Lee Law Review

No abstract provided.

Natural Law And The Cultivation Of Legal Rhetoric, Francis J. Mootz Iii

Scholarly Works

This essay appeared in a book celebrating Lon Fuller's contributions to jurisprudence. In it, Professor Mootz argued that Fuller's conception of secular natural law, designated as an "internal morality of law," lends welcome assistance to the effort to articulate a new direction in legal philosophy. He defended Fuller's natural-law approach from the common misinterpretations that it is either a hollow echo of the natural law tradition or an essentialist conception of law at odds with the legal-realist world that he helped to create with his doctrinal scholarship. By reading his famous, "The Case of the Speluncean Explorers," in a new …

No Vehicles In The Park, Pierre Schlag

Publications

No abstract provided.

Lacan And The Subject Of Law: Sexuation And Discourse In The Mapping Of Subject Positions That Give The Ur-Form Of Law, Ellie Ragland

Washington and Lee Law Review

No abstract provided.

Lynching Ethics: Toward A Theory Of Racialized Defenses, Anthony V. Alfieri

Michigan Law Review

So much depends upon a rope in Mobile, Alabama. To hang Michael Donald, Henry Hays and James "Tiger" Knowles tied up "a piece of nylon rope about twenty feet long, yellow nylon." They borrowed the rope from Frank Cox, Hays's brother-in-law. Cox "went out in the back" of his mother's "boatshed, or something like that, maybe it was in the lodge." He "got a rope," climbed into the front seat of Hays's Buick Wildcat, and handed it to Knowles sitting in the back seat. So much depends upon a noose. Knowles "made a hangman's noose out of the rope," thirteen …

Hiding The Ball, Pierre Schlag

Publications

No abstract provided.

Stances, Pierre Schlag

Publications

No abstract provided.

Normative And Nowhere To Go, Pierre Schlag

Publications

No abstract provided.