Law Commons^™

Framing Effects, Rhetorical Devices, And High-Stakes Litigation: A Cautionary Tale, Marcus Moore

All Faculty Publications

Opposing lawyers frame the facts of a case to serve their client, craft leading questions, and exert pressure on the witness to go along with their desired answer. To counter this, counsel for the witness must anticipate this and prepare the witness to tacitly ask themselves before answering such questions: whether a frame is being employed?; and if so, they should respond in their own words, rather than in the terms put to them by the opposing lawyer. Courts might counsel themselves to employ similar caution when incorporating discussion taken from politics or related policy debate. They may not be …

Norms Of Public Argumentation And The Ideals Of Correctness And Participation, Frank Zenker, Jan Albert Van Laar, Bianca Cepollaro, Anca Gâță, Martin Hinton, Colin Guthrie King, Brian N. Larson, Marcin Lewinski, Christoph Lumer, Steve Oswald, Maciej Pichlak, Blake D. Scott, Mariusz Urbanski, Jean H.M. Wagemans

Faculty Scholarship

Argumentation as the public exchange of reasons is widely thought to enhance deliberative interactions that generate and justify reasonable public policies. Adopting an argumentation-theoretic perspective, we survey the norms that should govern public argumentation and address some of the complexities that scholarly treatments have identified. Our focus is on norms associated with the ideals of correctness and participation as sources of a politically legitimate deliberative outcome. In principle, both ideals are mutually coherent. If the information needed for a correct deliberative outcome is distributed among agents, then maximising participation increases information diversity. But both ideals can also be in tension. …

Pink Tax And Other Tropes, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Law reform advocates should be strategic in deploying tax tropes. Through an examination of five common tax phrases—the “nanny tax,” “death tax,” “soda tax,” “Black tax,” and “pink tax”—this Article demonstrates that tax rhetoric is more likely to influence law when used to describe specific economic injustices resulting from actual government duties, as opposed to figurative inequalities. In comparison, slogans describing figurative taxes are less likely to influence law and human behavior, even if they have descriptive force in both popular and academic literature as a short-hand for group-based disparities. This Article catalogues and evaluates what makes for effective tax …

Time Is A Flat Circle: Lessons From Past And Present Conspiracy Theories, Lucy Jewel

Scholarly Works

This essay analyzes how conspiracy theories were viewed in the 1990s, particularly in the context of the then-existing debate over racial differences in perception, and how they are dealt with today, where prevalent conspiracy theory adherents are White and conservative (QAnon, Pizzagate, and widespread voter fraud) in the 2020 election). In the 1990s, conflict over conspiracy theories was part of a larger culture war involving critical race theory, conspiracy thinking, truth, reason, and post-modern theory. These cultural flashpoints are obviously still with us today. But now, high-profile persons holding false, unreasonable beliefs often hail from the right and are assailed …

“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 …

The Irrelevance Of Contemporary Academic Philosophy For Law: Recovering The Rhetorical Tradition / A Irrelevância Da Filosofia Acadêmica Contemporânea Para O Direito: Redescobrindo A Tradição Retórica, Francis J. Mootz

McGeorge School of Law Scholarly Articles

This short essay was published as part of a volume celebrating the 75th Anniversary of Karl Llewellyn’s article “On Philosophy in American Law.” The author argues that academic philosophy is irrelevant to lawyers, and that lawyers have little use for philosophical inquiry. This situation can be corrected by returning to the rhetorical and hermeneutical features of legal practice and reclaiming these ancient traditions of philosophical thought.

Este breve ensaio foi originalmente publicado como parte de uma obra em celebração ao aniversário de 75 anos do artigo “On Philosophy in American Law” de Karl Llewellyn. Argumenta-se que a filosofia acadêmica é …

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 …

(Not The) Same Old Story: Invisible Reasons For Rejecting Invisible Wounds, Jessica Lynn Wherry

Georgetown Law Faculty Publications and Other Works

Thousands of former military servicemembers have been discharged with other-than-honorable discharges due to misconduct that can be traced to a mental health condition. These veterans may request a post-discharge change to their discharge characterization—known as a “discharge upgrade.” Discharge review boards consider discharge upgrade requests and typically (90-99% of the time) deny the requests. In the past few years, the Department of Defense has issued new policy guidance partly in response to the low grant rate and to specifically address the growing understanding of the relationship between misconduct and mental health conditions for military servicemembers. The policy guidance requires the …

Rhetorical Repetition, Patrick Barry

Articles

When it comes to persuading judges, boardrooms, or even just co-workers, many lawyers shy away from repetition. They remain committed to the idea, often developed in college, that good writing is associated with having (and showing) a big vocabulary. They mistakenly think the best thesaurus wins. This essay explores that error and offers ways to correct it.

How We Talk About The Press, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

In 2017, the term “fake news” was so popular that it received the “Word of the Year” honor from the American Dialect Society. Since then, its popularity may have abated some, but its use persists. Most obviously, anti-press speakers weaponize the term fake news to undermine journalists and the press as an institution. Perhaps more surprisingly, however, the term is also in regular rotation among many who would seem to support a free and independent press, including scholars, teachers, and journalists themselves.

The continued and often-uncritical use of fake news should worry us. As thinkers across disciplines have recognized for …

The Current Role Of The Environment In Reinforcing Acts Of Domestic Terrorism: How Fear Of A Climate Change Apocalypse May Strengthen Right-Wing Hate Groups, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Right-wing extremist organizations, like white supremacists and nativists, are using the environment as a rallying cry to gain supporters of their anti-social agendas. Apocalyptic rhetoric about climate change and the lack of action to combat it has frightened some people into accepting the simplistic, violent worldview of these groups. Although the violence is new, the coupling of racism and anti-immigration rants with environmental goals is not—it is part of our cultural history. This Article provides some background on the threats of environmental and domestic terrorism facing our nation and describes how the present-day rhetoric of fear of an environmental Armageddon …

Uselessly Accurate, Patrick Barry

Articles

There is an accuracy that defeats itself by the overemphasis in details," Justice Benjamin Cardozo wrote in his 1925 collection Law and Literature and Other Essays and Addresses. The problem hasn't gone away, as any reader of legal briefs, contracts, and memos can attest. This essay offers a few ways to help.

Law Library Blog (April 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Does The Reasonable Man Have Obsessive Compulsive Disorder?, Lucille Jewel

Scholarly Works

The reasonable man is an anthropomorphic metaphor for legal reasoning. In this role, he sometimes shows symptoms of mental illness. He exhibits a compulsion to organize, rank, and prevent disorder, a process that can create unjust outcomes. When he is symptomatic, the reasonable man becomes a monster borne out of a fear of disorder. As the putative judge whom all lawyers write and speak in front of, the reasonable man is the reader attorneys fine-tune their arguments and language for. After developing a case history for the reasonable man, this Article engages with several questions. First, when advocates emulate the …

Does The Reasonable Man Have Obsessive Compulsive Disorder?, Lucille Jewel

College of Law Faculty Scholarship

The reasonable man is an anthropomorphic metaphor for legal reasoning. In this role, he sometimes shows symptoms of mental illness. He exhibits a compulsion to organize, rank, and prevent disorder, a process that can create unjust outcomes. When he is symptomatic, the reasonable man becomes a monster borne out of a fear of disorder. As the putative judge whom all lawyers write and speak in front of, the reasonable man is the reader attorneys fine-tune their arguments and language for. After developing a case history for the reasonable man, this Article engages with several questions. First, when advocates emulate the …

The Rule Of Three, Patrick Barry

Articles

Judges use the Rule of Three. Practitioners use the Rule of Three. And so do all manner of legal academics. Yet although many people seem to have an intuitive feel for how useful this rhetorical move is, no extended explanation of its mechanics and variety of forms exists. This essay offers that explanation. It begins with an introduction to the more straightforward form of the rule of three, which simply involves arranging information not in twos or fours or any other set of numbers-but rather in the trusty, melodic structure of threes. It then moves on to a closer look …

What We Still Don't Know About What Persuades Judges – And Some Ways We Might Find Out, Edward R. Becker

Articles

Over 25 years ago, in his foreword to the first volume of Legal Writing, Chris Rideout nailed it: legal writing as actually practiced by lawyers and judges needs to improve, “[b]ut more fundamental inquiry into legal writing...is needed as well.” The intervening decades have seen many laudable efforts on the latter front, as our collective scholarly discipline, then in its infancy, has matured. But one particular question that Rideout identified remains largely unaddressed by our discipline, although recent developments suggest a welcome increase in attention to the topic. Specifically, Rideout explained that our field did not know as much as …

Gender Justice: The Role Of Stories And Images, Linda L. Berger, Kathryn M. Stanchi

Scholarly Works

In this book chapter, Professor Berger argues for thoughtful metaphor-making and storytelling in legal writing. Exploring legal rhetoric with an eye for gender justice, she argues metaphor and narrative shape perspective and ask the reader to join the writer in the imaginative work of seeing one thing as another. The same shift in perspective that leads to re-conception—a shift that takes advantage of metaphor and narrative’s ability to say what only they can say—is what writers aim to achieve when they use metaphor and narrative for feminist and social justice advocacy.

Claudia Rankine's 'Citizen': Documenting And Protesting America's Halting March Toward Racial Justice And Equality, Susan Ayres

Faculty Scholarship

After the first election of President Barak Obama in 2008, there was a sense that the United States had reached a post-racial phase in its history. That sentiment was relatively short-lived, because by 2013, when Michael Brown was killed in Ferguson, it was clear that President Obama’s election was not transformative. More recently, during the presidential campaign and after the election of President Donald Trump in 2016, undisguised racism in the United States has reared its ugly head. Activists such as the Reverend Al Sharpton have been outspoken in their criticism of President Trump. Sharpton has claimed, “Everything King fought …

The Biology Of Inequality, Lucille Jewel

Scholarly Works

We have known for quite some time that disadvantaged individuals suffer from poorer health outcomes and lower life spans than the advantaged. The disadvantaged do not perform as well on educational tests than their wealthier peers. In some situations, racial discrimination intersects with poverty to worsen these outcomes for minorities. With the notion that poverty becomes implanted in an individual’s genes and brain, science helps explain how these disparate lifespans and variations in cognitive outcomes come to be. This Article collectively refers to these scientific theories as embodied inequality. Embodied inequality explains why it is so difficult for individuals to …

Old-School Rhetoric And New-School Cognitive Science: The Enduring Power Of Logocentric Categories, Lucille Jewel

Scholarly Works

For thousands of years, the contours of Western legal argument have remained unchanged. Since the time of the ancient Greeks, lawyers have been presenting arguments in the same basic format, with a heavy reliance on the concept of logos, the idea that arguments are most persuasive when presented in a clear deductive logical structure using clean-cut categories. Forming the basis for the terms that appear in logocentric legal arguments, categories allow humans to group facts and information together into classes. For instance, chairs, tables, and beds occupy the category of furniture and cars; trucks, and motorcycles occupy the category of …

When Less Is More: An Ideological Rhetorical Analysis Of Selected Aba Standards On Curricula And Faculty, Linda L. Berger

Scholarly Works

This chapter undertakes an ideological rhetorical analysis of several key provisions of Chapters 3 and 4 of the American Bar Association’s Standards for Approval of Law Schools, specifically, the interrelated provisions that regulate the curriculum and specify the required conditions of employment for the faculty of a law school. The analysis of selected ABA Standards regulating curricula and faculty supports rhetorical analyst Sonja Foss’s conclusion that the “dominant ideology controls what participants see as natural or obvious by establishing the norm. . . . [and] provides a sense that things are the way they have to be as it asserts …

Race, Rhetoric, And Judicial Opinions: Missouri As A Case Study, Brad Desnoyer, Anne Alexander

Faculty Publications

This Essay studies the relationship between race, rhetoric, and history in three twentieth century segregation cases: State ex rel. Gaines v. Canada, Kraemer v. Shelley, and Liddell v. Board of Education. Part I gives a brief overview of the scholarship of Critical Race Theory, majoritarian narratives and minority counter-narratives, and the judiciary’s rhetoric in race-based cases. Part II analyzes the narratives and language of Gaines, Kraemer, and Liddell, provides the social context of these cases, and traces their historical outcomes.

The Essay contends that majoritarian narratives with problematic themes continue to perpetuate even though court opinions have evolved to use …

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 …

Speaking Of Stories And Law, Linda H. Edwards

Scholarly Works

A recurring question in narrative scholarship has been the relationship of narrative to law. Most narrative scholars agree that stories are central to law. As Stephen Paskey recently pointed out, stories are more than a tool for persuasion. They are embedded in law’s very structure. But how does that work? Are rules just stories articulated in a different form?

We have barely begun to explore narrative’s roles, but it is already clear that, in the words of Meryl Streep, “it’s complicated.” A conceptual map of what we’ve learned so far can help us unpack the complexity. Otherwise we may run …

Alternative Conceptions Of Legal Rhetoric: Open Hand, Closed Fist, Linda L. Berger

Scholarly Works

An open-handed image of rhetoric presents an argument against the closed fist of logic and the “nasty, brutish, and short” depictions associated with legal rhetoric. In 1985, Robert Cover laid bare the field of pain and death where legal interpretation plays itself out in human consequences. Five years later, Gerald Wetlaufer described a landscape of brutal certainty as the backdrop for much of legal rhetoric. And the arena of criminal trials has long been recognizable as a bleak setting within which “[j]ustice determines blame and administers pain in a contest between the offender and the state . . .”

My …

Old-School Rhetoric And New-School Cognitive Science: The Enduring Power Of Logocentric Categories, Lucille Jewel

College of Law Faculty Scholarship

For thousands of years, the contours of Western legal argument have remained unchanged. Since the time of the ancient Greeks, lawyers have been presenting arguments in the same basic format, with a heavy reliance on the concept of logos, the idea that arguments are most persuasive when presented in a clear deductive logical structure using clean-cut categories. Forming the basis for the terms that appear in logocentric legal arguments, categories allow humans to group facts and information together into classes. For instance, chairs, tables, and beds occupy the category of furniture and cars; trucks, and motorcycles occupy the category of …

Say The Magic Word: A Rhetorical Analysis Of Contract Drafting Choices, Lori D. Johnson

Scholarly Works

Drafters of complex contracts often face a thorny dilemma – determining whether to retain “magic words” included in form documents, especially when considering the advice of current contract style scholars advocating for the removal of all traditional contract prose. But the drafter need not remove all terms that serve as elegant shorthand for more convoluted legal concepts, particularly where the inclusion of the term advances client interests. The application of rhetorical criticism – the analysis of methods of communicating ideas – to drafters’ use of the term “time is of the essence” sheds light on the dominant motivations of drafters …

Moral Panics And Body Cameras, Howard Wasserman

Faculty Publications

This Commentary uses the lens of "moral panics" to evaluate public support for equipping law enforcement with body cameras as a response and solution to events in Ferguson, Missouri in August 2014. Body cameras are a generally good policy idea. But the rhetoric surrounding them erroneously treats them as the single guaranteed solution to the problem of excessive force and police-citizen conflicts, particularly by ignoring the limitations of video evidence and the difficult questions of implementing the body camera program. In overstating the case, the rhetoric of body cameras becomes indistinguishable from rhetoric surrounding responses to past moral panics.

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 …