Mooting classical rhetoric in contemporary legal education

26 Apr

Among the law-related papers and panels at the 2018 Rhetoric Society of America conference is one that I’m coordinating. The speakers include Kirsten Davis, Stetson University College of Law; Francis J. Mootz, McGeorge School of Law; Susan Provenzano, Northwestern Pritzker School of Law; Susie Salmon, The University of Arizona James E. Rogers College of Law. Date/time and location details appear on my other post about RSA.

Here is the abstract.

Celebrating Classical Rhetoric & Building Contemporary Law

Classical rhetoric and the western legal tradition were born together in the Greek city states of the 5th century BCE. Yet little is said about Isocrates, Aristotle, Cicero, and Quintilian (for example) in contemporary law schools, and lawyers know little about the classical rhetorical foundations of their practice. Beginning in 2017, a group of two dozen scholars (mostly teachers of communication and legal theory in law schools) began a distance reading-group to examine the intersections between classical rhetorical theory and contemporary legal theory, practice, and education. This special-format session will present some of the group’s findings in the form of a moot court. The group will “moot” four propositions: For each proposition a member of the group will argue for and another against it, and the audience will judge–offering their own perspectives to boot. The session will make visible the enduring connections between classical rhetoric and contemporary law practice and look to the future of legal education in the west. The propositions explore the utility of the classical texts directly in the classroom, theoretical implications of classical rhetorical and logical theory to contemporary legal argumentation, and the possibility that principles of the classical rhetorical tradition can shape legal education and practice.

The first proposition mooted seems an obvious one for this group: “Contemporary law students should read classical rhetorical texts.” Presenters will debate the pedagogical utility of the classical texts in the contemporary classroom, noting particularly the challenges of contextualizing those texts for modern students. The proposition “Legal theory can be both logical and rhetorical” recognizes distinctions between logic and rhetoric in contemporary law’s rhetoric about its own processes. But it also brings into question the contrast Aristotle’s followers drew between his Organon, the collection of his foundational texts on logic, and his Rhetoric, the oldest systematic description of rhetoric we possess.

In “Law school should provide a liberal arts education,” presenters will debate whether law-school pedagogy should move away from its focus on value-neutral effectiveness toward the development of citizen-lawyers. This would be a nod to rhetorical scholarship’s embrace of the idea that undergraduate education should emulate the paideia of Isocrates, Cicero, and Quintilian and develop “good people speaking well.” The final proposition is “The classical rhetorical tradition responds to contemporary technological and disciplinary challenges in the law.” With some in the legal industry and academy speaking of IBM’s Watson replacing lawyers and of law practice becoming the domain of–or enmeshed with–other disciplines, most notably, business and science, do parallels between contemporary practice and classical theory point to a way forward for the legal profession?



Law and rhetoric at Rhetoric Society of America 2018

26 Apr

Updated 4/30 to put in link to my session’s abstract; and 4/27 to add Maggie Franz’s session.

The 2018 installment of Rhetoric Society of America’s biennial conference also marks the society’s 50th anniversary. Held in Minneapolis (which is beautiful this time of year), the conference is a sprawling four-day event that tackles rhetoric in written and spoken contexts and across the human (and even trans- and post-human) experience. Of special interest to folks here, though, might be the sessions devoted to or connected with law. Here is my overview. If you are giving a law-related presentation and I missed you, tweet or email me, and I’ll add to the list. In some cases below, I’ve noted a single speaker with a law-and-rhetoric angle in a session that is not entirely about law. In others, I’ve identified whole sessions focused on law.

I’ve listed sessions in chronological order. Room locations appear in parentheses. These listings are as of the posting or update date of this post, based on the draft schedule. I’ll update this post later, when the official schedule comes out, but check the schedule yourself to be sure of times and locations.

Disorder in the Court: Ideologic and Public Perception of the Insanity Defense

Speaker: Andrea Alden, Grand Canyon University. In session “A22 – Violence, Psychology, and Law: Rhetorics of Exclusion,” Thursday, May 31, 12:30 PM – 1:45 PM (Symphony 1, 2nd floor).

Session “B04 – Indigeneity in the Time of Law”

Thursday, May 31, 2:00 PM – 3:15 PM (Conrad A, 2nd floor).

The Invention of Jurisdiction, the Future of Inuit Territory. Speaker: Tad Lemieux, Carleton University.

Necessaries of Life: The Rhetorics of Medico-Legal Time and Indigenous Life-Times. Speaker: Stuart Murray, Carleton University.

Before the Law: The Status of the ‘Indian Child’ after Adoptive Couple v. Baby Girl. Speaker: Sarah Burgess, University of San Francisco.

Response: Barbara Biesecker, University of Georgia.

If Mêtis and Alloiōsis Had a Baby: The Future of Reproductive Justice Rhetoric

Speaker: Lydia McDermott, Whitman College. In session “B14 – Inventing Rhetoric Otherwise: Imagining and Enacting Alloiostrophic Rhetoric,” Thursday, May 31, 2:00 PM – 3:15 PM (Marquette 2, 2nd floor).

Invention of the Legal Defense for Moral Monday protesters

Speaker: David Deifell, Clarke University. In session “B24 – Religion and Politics,” Thursday, May 31, 2:00 PM – 3:15 PM (Symphony 3, 2nd floor).

Reinventing the Reasonable: Systemic Racism and Legal Fictions in the Shooting of Philando Castile

Speaker: Scott Makstenieks, University of Minnesota. In session “C17 – Race and State Violence: Critical Interventions,” Thursday, May 31, 3:30 PM – 4:45 PM (Marquette 4, 2nd floor).

Session “D20 – America’s Culture of Violence: Inventing the Second Amendment”

Friday, June 1, 8:30 AM – 9:45 AM (Rochester).

Pistols at Twenty Paces: Justices Scalia and Stevens Duel Over Constitutional Interpretation in D.C. v. Heller. Speaker: Eric Gander, Baruch College.

Inventing Self Defense: The Legal Fiction of Self Defense. Speaker: David Grassmick, Law offices of Roger Higgins.

‘It’s Too Soon to Talk About Gun Control’: Kairic Timing (or Politicizing?) in the Wake of Shooting Sprees. Speaker: Catherine Langford, Texas Tech University.

And the Second Shall Be First: The NRA’s Campaign to Ensure More Guns and not Enforced Silence. Speaker: Jeremiah Hickey, St. John’s University.

Session “E23 – Rhetorics of Law, Justice, and the Courts”

Friday, June 1, 10:00 AM – 11:15 AM (Rochester).

‘As Uneventful as Possible:’ Materializing Pain in Lethal Injection. Speaker: Megan Eatman, Clemson University.

Gerrymandering and Visual-Deliberative Rhetoric: A Case Study of the 2017 Texas Court Decision on Districts 23 and 35. Speaker: Fernando Sánchez, University of St. Thomas.

The Case of Czolgosz’s Sanity: An Examination of the Use of Judicial Rhetoric in Determining Facts. Speaker: Merci Decker, SUNY New Paltz.

(Re)Inventing Courtroom Rhetoric? Speaker: Lindsay Head, Louisiana State University.

The Paradox of Justice: Derrida’s Death Penalty Lectures Volume II

Speaker: Tim Donovan, University of North Florida. In session “G13 – The Haunting Specter of Death,” Friday, June 1, 1:00 PM – 2:15 PM (Grand Ballroom B, 3rd floor).

Constrained Invention in Law

Speaker: Mark Hannah, Arizona State University. In session “H03 – Investigating Constrained Invention through Three Lenses: Law, Intercultural Communication, and Technical and Professional Communication,” Friday, June 1, 2:30 PM – 3:45 PM (Board Room 3, 3rd floor).

Building and Unbuilding: Island Futures at the Nexus of Climate Change and Maritime Law

Speaker: Peter Goggin, Arizona State University. In session “H26 – Water, Race, and Crisis,” Friday, June 1, 2:30 PM – 3:45 PM (Symphony 2, 2nd floor).

Session “L17 – Will Masterpiece Cakeshop be the icing on the cake for the gay rights movement, or will Jack Phillips be able to have his cake and eat it too?: An Analysis of the Supreme Court’s Decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission

Saturday, June 2, 8:00 AM – 9:15 AM (Marquette 3, 2nd floor).

“Off the Shelf,” But Not by Design: A Legal Theory for Cases Involving Same-Sex Marriage and Anti-Discrimination Laws. Speaker: Eric Gander, Baruch College.

Inventing Commerce: Marginalizing People of Faith But Not Corporate People. Speaker: David Grassmick, Law Offices of Roger Higgins.

Discourse of space and identity: Masterpiece Cakeshop, Religious Liberty, and Gay Rights. Speaker: Jeremiah Hickey, St. John’s University.

Fundamental Rights in Conflict: Do We Have a Right Not to Be Offended? Speaker: Catherine Langford, Texas Tech University.

The Passionate Futures of the Law

Speaker: Erin Rand, Syracuse University. In session “L1 – Rhetoric, Affect, Emotion,” Saturday, June 2, 8:00 AM – 9:15 AM (Marquette 4, 2nd floor).

Session “M22 – The Weight of the Second Amendment: Critical Interventions”

Saturday, June 2, 9:30 AM – 10:45 AM (Marquette 8, 2nd floor).

Reinvention or Re-appropriation? The 2016 House Democratic Sit-in. Speaker: Scott Varda, Baylor University.

The Gunslinging, Law-Abiding Citizen(s): Democratic Ideobodies in the HB-2074 Testimonies. Speaker: Dana Comi, University of Kansas.

The Weight of the Second Amendment. Speaker: Craig Rood, Iowa State University.

Agency in the Epoch of the Anthropocene: Rhetorical Ecology and the Law

Speaker: Casey Corcoran, University of Illinois – Chicago. In session “N02 – Post-human Peacemaking: Reinventing Agency as Social Materiality,” Saturday, June 2, 11:00 AM – 12:15 PM (Boardroom 3, 3rd floor).

Session “N11 – Setting Precedent: Analyzing High Court Arguments and Opinions”

Saturday, June 2, 11:00 AM – 12:15 PM (Duluth Room, 3rd floor).

Invention, Reinvention, and Supreme Court Overruling: The Long-Term Consequences of Rhetorical Choices in Two Equal Protection Cases. Speaker: Clarke Rountree, University of Alabama in Huntsville.

“Mark of a Maturing Legal System” vs. “Seat of the Pants Judgment”: Dissociation of

Concepts in Peña-Rodriguez v. Colorado. Speaker: Drew Loewe, St. Edward’s University.

Legal Discursive Accessibility: A Comparative Genre Analysis of Supreme Court Opinions. Speaker: Susan Tanner, Carnegie Mellon University.

“The Brooding Spirit of the Law”: The Rhetoric of the Contemporary Supreme Court Dissent. Speaker: Matthew Bridgewater, Woodbury University.

Against Rhetoric: The Development of the Case Method in 19th Century American Legal Education

Speaker: Elizabeth Britt, Northeastern University. In session “N16 – New Investigations in 19th Century Rhetorical Education,” Saturday, June 2, 11:00 AM – 12:15 PM (Marquette 2, 2nd floor).

Loud Approval at the Law Rock: Stasis Theory and the Viking Legal Tradition

Speaker: Robert Lively, Arizona State University. In session “O02 – Rhetoric in the Middle Ages,” Saturday, June 2, 12:30 PM – 1:45 PM (BoardRoom 2, 3rd floor).

Session “O05 – Indigenous Politics and History”

June 2, 12:30 PM – 1:45 PM (Conrad C, 2nd floor).

Becoming Subject to Jurisdiction: The Rhetoric of Competency in the Making of the Indian Citizenship Act of 1924. Speaker: Margaret Franz, UNC Chapel Hill.

You are not the Father: Psychoanalysis, Rhetoric, and Federal Indian Law. Speaker: Alvin Primack, University of Pittsburgh.

Session “P13 – Celebrating Classical Rhetoric & Building Contemporary Law”

(Post with our abstract)

Saturday, June 2, 2:00 PM – 3:15 PM (Grand Ballroom B, 3rd floor).


Kirsten Davis, Stetson University College of Law

Brian Larson, Texas A&M University School of Law

Francis J. Mootz, McGeorge School of Law

Susan Provenzano, Northwestern Pritzker School of Law

Susie Salmon, The University of Arizona James E. Rogers College of Law

Communication, Media, and Contact: Munera and Natural Law in Humanae Vitae

Speaker: Jon Radwan, Seton Hall University. In session “TU07 – Papal Rhetoric Reinvented,” Sunday, June 3, 8:30 AM – 9:45 AM (Directors Row 1, 3rd floor).

Session “U18 – Re-inventing the Public Work of Rhetoric through Engagements with Law”

Sunday, June 3, 10:00 AM – 11:15 AM (Marquette 8, 2nd floor).

Reinventing Judicial Text. Speaker: Peter Campbell, University of Pittsburgh.

Law’s Problems Are Ours: Reading Law for Ethical Openings. Speaker: Laura Collins, University of Colorado, Colorado Springs.

Inventing Reparations: In Re African-American Slave Descendants and the Future of the Slavery Reparations Movement. Speaker: Sarah Hakimzadeh, University of Pittsburgh.

Action Research Informed by Rhetorical Approaches to Healthcare Law and Policy. Speaker: Dawn Opel, Michigan State University.

Classical rhetoric: The anonymous Dissoi Logoi and Antiphon’s Tetralogies

6 Jul

This summer, the Classical Rhetoric & Contemporary Law group has begun discussing classical texts relating to rhetoric and argumentation from the perspective of contemporary law. To support that effort, I began a series of background pieces (starting with this post on June 14) to function as a roadmap to classical rhetoric for members of the group and for others interested in classical forensic rhetoric and its intersections with contemporary practice and pedagogy. See that first post for objectives and ground rules of these background posts.

The last post focused on some terminology issues and some history of rhetoric before and up to approximately the time of the sophists in Athens (the 5th century BCE or so). I had originally meant to make the present post a more general one, but as I’m leading a discussing on the anonymous Dissoi Logoi and Antiphon’s Tetralogies tomorrow, I wanted to finish covering them today.

The next post will narrow the focus of the last by explaining the contexts for forensic rhetoric in Athens (and later, Rome); it thus explains what an ancient court case looked like. (Candidly, that would have been helpful in understanding Antiphon’s texts in this post, but it will just have to wait until next time.) It will also introduce some information about how rhetoric was taught in antiquity.

The Double Arguments (Dissoi Logoi)

This anonymous text is a series of show speeches, in most cases arguing both sides of mostly philosophical questions, in other cases arguing for a particular position. Dillon and Gergel date them to the 390s or 380s BCE,[1] after the heyday of the older sophists and well into the era of Plato. They do not readily fit the three genres of classical oratory (deliberative, forensic, or epideictic). Instead, they function as exercises or explorations, and some have said that the Dissoi Logoi are not polished productions by one of our better-known authors or anyone of comparable skill, but are instead the work of a schoolboy or pupil, the position Dillon and Gergel state[2] and which their notes on the text support.[3] Kennedy, however, describes them as “good examples of how to argue on both sides of an issue.”[4] Regardless of their quality as arguments, the fact that these texts have survived suggests that they have been viewed as somehow important or at least emblematic of the arguments or techniques they embody. I speculate that they (or texts like them) might have served as exemplars for folks like Plato of what was wrong with rhetoric. The fact that they may not be aptly argued, or that they argue for radically relativistic views, supports the position of those who are anti-rhetoric.

Antiphon and the Tetralogies

There may have been several Antiphons, and it’s not easy to say which is which: The author of these Tetralogies; the writer of three forensic speeches actually delivered in court; the author of two philosophical treatises, On Truth and On Concord, of which we have only fragments; an anti-democratic Athenian politician; a tragic poet; a dream interpreter; and a psychiatrist.[5] His/their identity was a matter of debate for ancient writers, just as it is for contemporary scholars.[6] In fact, not all contemporary scholars will grant that any Antiphon is author of the Tetralogies.[7] But the “three surviving forensic speeches . . . [attributed to him] have a claim to being among the earliest examples of Attic [Athenian] prose.”[8]

He is identified by Pseudo-Plutarch and others as one of the 10 great Attic (that is, Athenian) orators,[9] and may have had the nickname “speech cook” or logomageiros.[10] Contemporary accounts suggest he was somewhat younger than Gorgias and somewhat older than Socrates[11] and that he operated a school, perhaps of rhetoric (but remember this is before the term “rhetoric”) or sophistry.[12] One Antiphon was an anti-democratic supporter of the oligarchy known as The Four Hundred, which took power in Athens 412 – 411 BCE, and was tried and executed for his part in that coup when democracy was restored.[13] Antiphon is one of the few Athenian citizens classed as sophists—most were foreigners or metics.[14] He is the first author we know by name as a logographos, a writer of speeches for others to deliver before the court or assembly and the first to publish a handbook of rhetoric, though it does not survive. [15]

The Tetralogies are three sets of four forensic speeches, each relating to a single court case—two by the prosecution and two by the defense—and are show speeches, designed either to impress the reader with the author’s skill or to teach his students principles of forensic argumentation.[16] One the one hand, though these are not speeches actually delivered in court, Antiphon may have abstracted them from real cases he argued.[17] On the other hand, at least one scholar dates them to the 440s,[18] placing them more than 20 years before the earliest of his undisputed forensic speeches, which dates to around 419.[19] Kennedy goes further forward in time, nothing that “they seem to reflect legal arguments current at a time after Antiphon’s death,” possibly suggesting they were written in the fourth century.[20] The three Tetralogies all involve homicide: First a premeditated murder, second an accidental death, and third a claim for murder and corresponding claim of self-defense.

Treatment of these texts in scholarship

These particular texts have received scant attention in the legal scholarship, and even in the rhetorical scholarship they have not frequently been treated with great depth. Classics scholarship, not surprisingly, appears to regard them as evergreen sources of debate. In the case of the Dissoi Logoi, the legal scholarship provides really only one examination: Eileen Scallen embraces the figures of Isocrates, Cicero, and Quintillian in her argument for a pragmatic legal rhetoric[21] and its use in teaching evidence,[22] and she cites the Dissoi Logoi to illustrate the proneness of contemporary and classical authors to regard the sophists as supporters of “radical relativism,” despite other possible interpretations.[23] Nuno Coehlo cites but does not discuss the Tetralogies and the Dissoi Logoi as examples of the mode of antilogy—opposing each argument with a counterargument—popular with the sophists.[24]

Dissoi logoi presents the additional problem of referring more generally to “contrasting arguments.” So, for example, Mootz mentions “dissoi logoi,” but not the Dissoi Logoi, in his review of a book that attacks “radical multiculturalism” in legal theory.[25] Mootz’s review functions as an argument for a contemporary rationality, a rhetorical logos, not constrained by oversimplifying Englightenment logic but not entirely unmoored from reason, as some post-modern theorists appear to be.[26] He mentions the concept again while arguing for a reconsideration of the reputation of the sophists in an article where he argues generally for rhetorical knowledge as a foundation for justice.[27] The dual nature of dissoi logoi and Dissoi Logoi shows up in the rhetorical literature as well: Robert Scott, in a landmark essay in rhetorical theory, also mentions the concept of the dissoi logoi without citing our text.[28]

The Tetralogies make a better showing in the legal literature. Adriaan Lanni provides a summary of the Athenian court case.[29] She also explores in considerable detail the evidence that litigants in Athenian cases made references to Athenian law,[30] and used (or mostly did not use) references to precedent.[31] During this process, she compares classical Athenian practice in some cases to concepts from contemporary law, such as identifying the ratio decidendi in a case[32] and distinguishing previous cases.[33] Her discussion is grounded in the corpus of classical Athenian speeches, mostly written by logographoi such as Lysias. She cites two of Antiphon’s forensic speeches[34] and briefly mentions his second Tetralogy.[35] Donald Verene refers to Antiphon’s Tetralogies as an early example of the four-part structure of speeches that he explores in the context of the works of Giambattista Vico, and particularly while comparing them to classical rhetoricians (and Verene would probably say, philosophers) Cicero and Quintillian.[36] Kevin Saunders uses the second Tetralogy as a brief example in a jurisprudence piece on the role of volition in justifying culpability in law.[37] His discussion complements that of Mann, who explores the second Tetralogy in detail while claiming the defense’s argument in it presages contemporary arguments and distinctions among agentive, evaluative, and moral responsibility for acts.[38] There is of course the obligatory cite-without-discussing example: Richard Sherwin includes a reference to the Tetralogies merely as part of a string-cite with several other classical authors in his article on contemporary legal theory.[39]

Antiphon is a subject of substantial interest among classics scholars. For example, in two articles Michael Gagarin discusses whether Antiphon’s existing forensic speeches suggest he was an innovator or reactionary among rhetoricians of his time[40] and the nature of the Athenian law of homicide applied in the Tetralogies.[41] The former piece may become interesting to us later, as it focuses on the distinction between artistic and inartistic proofs that Aristotle will draw in the Rhetoric. The detailed analysis in the latter would prove useful to anyone hoping to make a deep use of the Tetralogies as part of a research project. And Sealey takes up the question of whether the writer of the Tetralogies was using Athenian law as the basis for the speeches, and if so, of what era.[42] He concludes that features of the law in the Tetralogies mean they were “more likely to have been composed after 403 than before”[43] (and thus after Antiphon’s death).

[1] The Greek Sophists 319, (John Dillon & Tania Gergel trans., 2003). Cf. George A. Kennedy, A New History of Classical Rhetoric 17(1994) (placing them at the end of the fifth century); Thomas M. Conley, Dating the So-Called Dissoi Logoi: A Cautionary Note, 5 Ancient Philosophy 59, 62-63 (1985) (arguing they were written centuries later, perhaps as late as the twelfth or thirteenth century CE).

[2] The Greek Sophists, supra, at 319.

[3] See, e.g., The Greek Sophists, supra, at 405 nn.27-28, 33, at 408 n.69, and at 411 n.105. See also Conley, supra, at 59.

[4] Kennedy, supra at 17.

[5] The Greek Sophists, supra, at 133-34.

[6] Dillon and Gergel quote the second-century CE rhetorician Hermogenes of Tarsus at length on the question. The Greek Sophists, supra, at 135-36. For contemporary assessments, see, e.g., Kennedy, supra at 23 n.15; Laurent Pernot, Rhetoric in Antiquity 19 (W.E. Higgins tran., 2005).

[7] R. Sealey, The Tetralogies Ascribed to Antiphon, 114 Transactions of the Am. Philological Ass’n (1974-) 71 (1984). Sealey argues that the author of the Tetralogies did not correctly report Athenian law from the period and was guilty in some cases of writing with an Ionic (rather then Athenian) style; these are unlikely if the leading Athenian citizen of the period known as “Antiphon” was their author.

[8] The Greek Sophists, supra, at 134.

[9] The Greek Sophists, supra, at 137.

[10] The Greek Sophists, supra, at 134 (quoting the tenth-century CE Byzantine encyclopedia the Suda).

[11] Dillon and Gergel place his birth around 475 BCE, with Gorgias a half dozen years earlier and Socrates a half dozen later. The Greek Sophists, supra at vii. Gagarin puts it at 480. Michael Gagarin, Greek Oratory (Series Introduction), in Isocrates I xii, xv (David C. Mirhady & Yun Lee Too trans., 2000). Pernot also chooses “c. 480.” Pernot, supra, at 19.

[12] Xenophon describes “Antiphon the sophist” as trying to lure Socrates’ students away. Xenophon, Memoirs of Socrates, in Xenophon: Conversations of Socrates 95 (Robin Waterfield & Hugh Tredennick trans., 1990) (1.5.6; this section number refers to a contemporary “breakdown” of Xenophon’s text. See the note on a previous post regarding such references).

[13] The Greek Sophists, supra, at 133-34.

[14] Gagarin, supra, at xiii (noting that metics were “non-citizen residents of Athens,” and because “they were barred from direct participation in public life,” their only employment in as rhetoricians was to “contribute by writing speeches for others”).

[15] The Greek Sophists, supra, at 137 (quoting Pseudo-Plutarch, Lives of the Ten Orators).

[16] The Greek Sophists, supra, at 172.

[17] The Greek Sophists, supra, at 375 n.101.

[18] Kennedy, supra, at 23.

[19] Sealey, supra, at 72.

[20] Kennedy, supra, at 23. See also Sealy, supra, at 73 (“[O]ne need merely note that . . . the Tetralogies are closer to Antiphon’s practice late in life and to subsequent Athenian oratory than to his method in his earliest extant court-speech.”)

[21] Eileen A. Scallen, Evidence Law as Pragmatic Legal Rhetoric: Reconnecting Legal Scholarship, Teaching, and Ethics, 21 Quinnipiac L. Rev. 813, 850-51 (2003). Scallen’s article provides an overview in broad brushstrokes of classical rhetoric, the controversies between those in the camp of Plato and those in the camp of the sophists and Iscocrates.

[22] Scallen, supra, at 857-86.

[23] Scallen, supra, 839 n.101.

[24] Nuno M.M.S. Coelho, Controversy and Practical Reason in Aristotle, in Aristotle and The Philosophy of Law: Theory, Practice and Justice 87–108 (Liesbeth Huppes-Cluysenaer & Nuno M.M.S. Coelho eds., 2013).

[25] Francis J. III Mootz, Between Truth and Provocation: Reclaiming Reason in American Legal Scholarship (review of Daniel A. Farber and Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law), 10 Yale J.L. & Human. 605, 637 (1998). Mootz writes: “Protagoras did not seek singular rational truths in human affairs but began with a conception of the world as constituted by dissoi logoi (contending discourses) that can be resolved only as a matter of collective judgment.”

[26] Mootz, Between Truth and Provocation, supra, at 641.

[27] Francis J. III Mootz, Rhetorical Knowledge in Legal Practice and Theory, 6 S. Cal. Interdisc. L.J. 491, 551 n.155 (1998). The article is a thorough and complex synthesis of ideas from Chaim Perelman and Hans-Georg Gadamer.

[28] Robert Scott, On Viewing Rhetoric as Epistemic, 18 Central States Speech J. 9, 15 (1967).

[29] Adriaan Lanni, Precedent and Legal Reasoning in Classical Athenian Courts: A Noble Lie?, 43 Am. J. Legal Hist. 27, 29-31 (1999).

[30] Lanni, supra, at 31-41.

[31] Lanni, supra, at 41-51.

[32] Lanni, supra, at 42, 47, 49, 50. Interestingly, Lanni’s article refers to ratio dicendi, a term unknown to me, rather than the well known ratio decidendi.

[33] Lanni, supra, at 47, 49.

[34] Lanni, supra, at 30 n. 13 (citing Antiphon 5) and at 38 n. 74 (citing Antiphon 6).

[35] Lanni, supra, at 37 n. 67.

[36] Donald Phillip Verene, Vichian Moral Philosophy: Prudence as Jurisprudence, 83 Chi.-Kent. L. Rev. 1107, 1121 (2008). The reference to the Tetralogies as an example of a four-part structure is strange, given that they are conceived as four separate speeches given by two different speakers. The focus of Verene’s article is to argue for Vico’s view that eloquence, ethical prudence, and jurisprudence should be taught as necessary parts of the liberal arts.

[37] Kevin W. Saunders, Voluntary Acts and the Criminal Law: Justifying Culpability Based on the Existence of Volition, 49 U. Pitt. L. Rev. 443, 444-45 (1988).

[38] Joel E Mann, Causation, Agency, and the Law: On Some Subtleties in Antiphon’s Second Tetralogy, 50 J. of the History of Philosophy 7, 16 (2012).

[39] Richard K. Sherwin, Lawyering Theory—An Overview: What We Talk About When We Talk About Law, 37 N.Y.L. Sch. L. Rev 9–53 (1992).

[40] Michael Gagarin, The Nature of Proofs in Antiphon, 85 Classical Philology 22–32 (1990).

[41] Michael Gagarin, The Prohibition of Just and Unjust Homicide in Antiphon’s Tetralogies, 19 Greek, Roman and Byzantine Studies 291–306 (1978).

[42] Sealy, supra, at 72.

[43] Sealy, supra, at 84.

Early history of classical rhetoric

15 Jun

On June 14, the Classical Rhetoric & Contemporary Law group discussed Gorgias’s Encomium of Helen from the perspective of contemporary law, but many of us were new to the text, and so we spent a considerable amount of time just getting familiar with it. We may report later as a group on our discussions and efforts. But first I want to provide background pieces to function as a roadmap to classical rhetoric, Gorgias, this text, and other classical texts for members of the group and for others interested in classical forensic rhetoric and its intersections with contemporary practice and pedagogy. My goal here is to document citations thoroughly enough that another legal scholar approaching these texts and this history will be able to find primary and very reputable secondary sources, including those cases where differences of opinion may exist.

[As the CRCL group has not yet discussed how we will refer to the group’s work when writing about the texts we discuss, I’m not providing any kind of summary of its meetings or of the interpretations and insights we discuss there. The materials in this post and future ones like it will consist only of work of my own and of those whose permission I’ve received to share it.]

In this first post, I’ll introduce the early history of classical rhetoric. In the next, I’ll characterize the forums where forensic or judicial rhetoric was practiced and describe classical rhetorical education. In later posts, I’ll describe the extant texts that contemporary scholars may read from the classical tradition, the Greek ‘sophists,’ and particularly Gorgias.

The term ‘classical rhetoric’ is like ‘classical music’ in that it refers both to a broad category and to a narrower part of it: We might describe all of Greco-Roman rhetoric from the fifth century BCE until after the end of the Roman empire nearly 1000 years later as ‘classical,’ as James Williams does in the title of his reader.[1] Or we might refer to the period in Athens between the end of tyrrany and establishment of democracy at Athens (ca. 510 – 508 BCE[2]) and the death of Alexander the Great (323 BC[3]) or basically the 5th and 4th centuries BCE as the ‘classical period’ in Greece. CRCL is using the broader meaning of this term.

This post (and indeed the CRCL) will focus more narrowly still on forensic or judicial rhetoric, where the audience is judging things that happened in the past, as in a court case.[4] This is one of the three “species”[5] or “genera”[6] of rhetoric that Aristotle identified, the other two being deliberative—where the audience judges a proposed future course of action[7]—and demonstrative or epideictic[8]usually ceremonial speeches “intended to influence the values and beliefs of the audience.”[9]

Though there is a time before ‘rhetoric’ in Greek culture, there is probably not one before rhetoric. This paradoxical assertion arises from the fact that the word rhētorikē in Greek does not make its first appearance until sometime in the early 4th century BCE. But according to Pernot, there was a long tradition of oratory in Greek going back to Homer’s Illiad and Odyssey,[10] which date to the 8th century[11] and which were originally transmitted orally from generation to generation.[12] In his history of rhetoric, he devotes nearly a whole chapter to Homer, describing his works as “a gallery of orators.”[13] He notes that Achilles is described there as “a speaker of words and a doer of deeds.”[14] “Speaker” there translates rhētēr, which along with rhētōr (the more common term in the modern era) means ‘orator.’ Rhētorikē then comes from placing this noun together with the –ikos suffix, which suggests a “technical” or “trade” term “carrying an intellectual connotation.”[15]

But Homer does not use ‘rhetoric’ or rhētorikē. Neither do the oldest fragments of text we have—from the fifth-century teachers of oratory, including Antiphon and Gorgias. Kennedy claims the term first appears in Plato’s dialogue Gorgias, “about 385 B.C. but set dramatically a generation earlier.”[16] Pernot says it first appears in the Gorgias—which he dates to around 387-385—or in Alcidamas’ On the Authors of Written Speeches—which he dates to around 390.[17]

The term used before ‘rhetoric’ was logos,[18] but that term poses great difficulties of translation, as Kennedy notes:

Logos has many meanings through the long history of the Greek language; it is anything that is “said,” but that can be a word, a sentence, part of a speech or a written work, or a whole speech . . . . Thus is can also mean “argument” and “reason,” and that can be further extended to mean “order” as perceived in the world or as given to it by some divine creator . . . . [L]ogos was consistently regarded as a positive factor in human life, and teachers of rhetoric often celebrated it.[19]

Why does it matter whether teachers of oratory used ‘rhetoric’ or not? I’ll take that up briefly when I write about the ‘sophists’ later.

According to Kennedy, the term rhētorikē “in Greek specifically denotes the civic art of public speaking as it developed in deliberative assemblies, law courts, and other formal occasions under constitutional government in the Greek cities, especially the Athenian democracy.”[20] This is the way I will generally use the term ‘rhetoric’ in these posts. It seems western law and rhetoric arose together, in the context of democracies, or at least where decisions are made according to some procedure.

So, for example, Korax, the supposed inventor of rhetoric, becomes its first famous practitioner in Syracuse, a Greek colony in Sicily, after the death of the tyrant there.[21] According to Habinek, there is a “widespread sense that the end of tyranny is the beginning of rhetoric, and vice versa,” and he contends “that the ancient belief in the mutual exclusivity of tyranny and rhetoric is itself a variation on the wider theme of rhetoric’s role in the foundation of the state.”[22] Kennedy, too, claims “Aristotle associated attempts to describe a technique of public speaking with the emergence of democracy.”[23]

The invention or discovery of rhetoric by Corax and Tisias of Sicily is reported by Cicero,[24] but Kennedy claims that “Corax” (crow) was likely just a nickname for Tisias.[25]

Given Pernot’s claims that Greece was hyper-oratorical from the time of Homer, how and why would Protagoras and Gorgias—‘sophists’ and the earliest teachers of oratory in Athens—so have amazed the Athenians? It cannot merely have been the “poetic character” and “showy effects” of Gorgias’ style,[26] as the Athenians (and all the Greeks) had seen these attested in Homer.[27]

We’ll have space to talk more about that later, but I suspect it was because these teachers brought a new philosophy, at least of language, but also of logos or reasoning and peitho or persuasion. The idea of systematically exploring a subject from all sides to identify epistemic and argumentative possibilities may have been new to the Athenians. This is the beginning of what I will call “classical argumentation theory” later in these posts.

As a consequence, according to Pernot, the sophists focused thought on situations “where the discussion is situated within the category of values and probabilities, not of axioms and scientific demonstrations . . . . the situation of the courtroom . . . where speeches oppose one another and justice and truth are not preexisting, but only pronounced afterward, at the end of the debates that have evoked them.”[28] So according to these earliest influential teachers of oratory, “courses of practical action can best be determined by considering the advantages of the alternatives . . . [which] opens up a place for skill in ‘making the weaker the stronger cause.’”[29]

It is this purpose of rhetoric to lead to a truth instead of the Truth, its power to deceive and lead folks astray, and its propensity to examine an issue in minute detail—to split hairs—that puts it at odds with philosophers and common people alike, a fact we will take up in a later post.

In the next post, I’ll take up the forums where judicial rhetoric was performed and rhetorical education.


[1] James D. Williams, An Introduction to Classical Rhetoric: Essential Readings (2009). Note: As I teach students (mostly) to use the Bluebook “blue pages” citations, and I don’t like the law-review footnote style of citations, I use the former here, even though this text is more ‘academic-ey’—and I’m using footnotes. Note too, that because of the way I draft these posts, I prefer not to use id. citations, because I never know if I’m going to insert new sentences that might break the “id-chains.”

[2] Thomas Habinek, Ancient Rhetoric and Oratory ix (2005).

[3] Habinek, supra, at x.

[4] George A. Kennedy, A New History of Classical Rhetoric 4 (1994). Aristotle’s term in Greek is dikanikon. Aristotle, On Rhetoric: A Theory of Civic Discourse 48 (George A. Kennedy tran., 2d ed. 2007) (I.3.3., 1358b). Citing classical texts, which are rarely available in ‘original editions,’ can be a challenge. Citing only to the page number in one translation may make it difficult to find the same text in another edition. Citing only to esoteric section and page numbers from reference editions of texts can leave the reader possessing the particular edition used by the author somewhat adrift. Consequently, when I cite a classical text the first time, I’ll explain how the citation works. When I cite it subsequently, I’ll provide as much information as I can for the reader. So, in the case of Aristotle’s rhetoric, cited earlier in this note, I have provided the page number in Kennedy’s translation, but in the parenthetical I have provided the book, chapter, and section number, and also the Bekker number. The book numbers are Aristotle’s, the chapter and section numbers were assigned by Renaissance and early modern editors, and the Bekker number refers to the page in a canonical Greek edition from the 19th century. See George A. Kennedy, Notes on the Translation, in On Rhetoric: A Theory of Civic Discourse xiv, xiv (2d ed. 2007).

[5] Aristotle, supra, at 47 (I.3.1, 1358a-b).

[6] Aristotle, supra, at 48 (I.3.3, 1358b).

[7] Greek symbouleutikon. Aristotle, supra, at 48 (I.3.3, 1358b).

[8] Greek epideiktikon. Aristotle, supra, at 48 (I.3.3, 1358b).

[9] Kennedy, A New History of Classical Rhetoric, supra, at 4.

[10] Laurent Pernot, Rhetoric in Antiquity 1-7 (W.E. Higgins tran., 2005).

[11] Pernot, supra, at 7.

[12] Kennedy, A New History of Classical Rhetoric, supra, at 26.

[13] Pernot, supra, at 3.

[14] Pernot, supra, at 4 (quoting Homer, Iliad 9.442-443).

[15] Pernot, supra, at 23.

[16] Kennedy, A New History of Classical Rhetoric, supra, at 3.

[17] Pernot, supra, at 21.

[18] Pernot, supra, at 22.

[19] Kennedy, A New History of Classical Rhetoric, supra, at 11-12.

[20] Kennedy, A New History of Classical Rhetoric, supra, at 3.

[21] Thomas Habinek, Ancient Rhetoric and Oratory 9 (2005). Habinek gives 466 BCE for the “[d]eath of Hieron, tyrant of Syracuse, and ‘invention’ of rhetoric by Korax.” Id. at ix. Cf. Michael H. Frost, Introduction to Classical Legal Rhetoric: A Lost Heritage 2 (2005) (dating the “creation” of rhetoric to 450 BCE).

[22] Habinek, supra, at 8.

[23] Kennedy, A New History of Classical Rhetoric, supra, at 11. See also Pernot, supra, at 11 (describing the “judicial and democratic character of the new invention,” rhetoric).

[24] Kennedy, A New History of Classical Rhetoric, supra, at 11.

[25] Aristotle, supra at 48, n. 202; George A. Kennedy, The Earliest Rhetorical Handbooks, in On Rhetoric: A Theory of Civic Discourse 293, 294 (2d ed. 2007).

[26] Pernot, supra, at 18.

[27] Pernot, supra, at 1-7.

[28] Pernot, supra, at 14.

[29] Kennedy, A New History of Classical Rhetoric, supra, at 7.

Introducing the Classical Rhetoric & Contemporary Law group

14 Jun

[It’s been a while since I posted: I’ve been wrapped up in wrapping up things as I prepare to leave Georgia Tech and head to Texas A&M’s School of Law in the fall. But here’s one new project about which I’m very excited.]

In January 2017 I invited colleagues in the legal academy, particularly those active as teachers of legal writing and legal theory, to join me in an exploration of classical rhetorical texts and their intersections with contemporary law. I issued the invitation over the Legal Writing Institute’s mailing list and via direct emails to a few specific colleagues.

Today, we had our first teleconference to discuss a classical text, Gorgias’ Encomium of Helen—it was a wonderful experience for me, but more on that in another post. In this post, I want to discuss why I thought it made sense to form such a group and to describe what the group has agreed to do.

Why have a reading group for classical rhetorical texts?

Athenian democracy and the study of rhetoric appeared together in the 400s BCE. The twin birth of classical rhetoric and classical legal thinking has not resulted in a close relationship between their children, contemporary legal theory and the contemporary study of classical rhetoric. In broad terms, rhetoric scholars don’t know contemporary law; perhaps every PhD student in rhetoric and related fields has a classical rhetoric course, but their training and scholarship do not reflect practical knowledge of contemporary law. And law scholars treat classical rhetoric superficially (more on that in a moment). Like many generalizations, this is a gross oversimplification: There are certainly scholars of rhetoric and law (e.g., James Boyd White), scholars of law who know rhetoric (e.g., Kristen Tiscione, Michael Frost), and scholars of rhetoric who know law (e.g., Clarke Rountree, Mary Schuster, Peter Campbell, Anjali Vats).

But contemporary study of classical rhetoric makes hardly any mention of contemporary law at all. And a review of contemporary law scholarship shows that classical rhetoric is of interest to contemporary scholars of legal writing, but it also points up common problems: contemporary citations are often only to the most famous classical figures (e.g., Aristotle and Cicero), are occasionally only superficial, and sometimes are to secondary authorities without showing evidence of reading the original classical texts (despite their availability in modern, inexpensive translations).

My goal in asking folks to join me in reading these texts together was to broaden and deepen the legal-writing and legal-theory fields’ understanding of classical texts. Two dozen scholars, mostly from the legal writing community, have joined to form the Classical Rhetoric & Contemporary Law (CRCL) group.

The goals of CRCL are to read classical texts and engage with them, to develop insights about the ways that classical rhetoric intersects with contemporary law, and to help the legal writing and legal theory community to engage more productively with the classics.

Process and products

CRCL formed in May 2017, made up principally of legal scholars planning to engage in the following practices. First, the group selected texts they would read. The list includes Greek Sophists, Plato, Aristotle (both the foundational texts in logic, the Organon, and the Rhetoric), some other Greeks of the classical period, Romans such as Cicero and Quintilian, and some other Hellenistic writers (including Hermogenes of Tarsus).

As their second order of business, the group adopted a procedure for discussing each text via teleconference, with each meeting being 60 mins and taking place between two and four weeks after the last. In some sessions, the group may discuss more than one text. Some longer texts will require more than one session. All members of the group read the assigned text(s), but one member agrees to be discussion facilitator.

A session’s facilitator/leader has several duties. At least three weeks before the scheduled meeting, the facilitator informs the group which edition/translation of the work(s) considered at the meeting the facilitator will use. Other participants can use different editions/translations, but if they want to work from the same text as the facilitator, they’ll know the text. At least 10 days before the scheduled meeting, the facilitator provides some items to the entire group: a summary of references to the work(s) considered in the field of law (potentially including uses of the work(s) considered in the legal writing and jurisprudence (legal philosophy) literature); and four or five reading questions to guide other participants’ involvement. The facilitator also identifies and reads some sources outside the legal literature engaging with the work(s) considered, possibly critically. At the meeting’s beginning, the facilitator presents a 5-10-minute introduction of the text to contextualize it. (The facilitator can write this and send it out in advance instead.)

Of course, this approach is still subject to revision based on our experiences in early days.

The group’s third and final order of business was to consider what scholarly products might come out of this effort. Two are described here merely to provide a basis for discussion. An ambitious product would be an edited collection consisting of the components listed here, one that we would intend for use in at least two environments: (1) The law school classroom, probably in an advanced class in rhetoric, communication, legal writing, legal history, or the like; and (2) the graduate classical rhetoric classroom. It would take the form of a “reader,” including an introductory “chapter” by the editors, excerpts (and in some cases, complete works) of key classical texts in good translations, for each text an introduction to that text akin to an encyclopedia entry, and for each text (or group of them) a reflection by a law-trained scholar on the continuing “traces” of the classical text in contemporary legal practice, theory, or both.

Each contemporary reflection might focus merely on using a classical text to find and explain parallels in contemporary legal theory and practice, perhaps arguing that the parallels illustrate concepts essential to legal/forensic rhetoric. On the other hand, it could take a more critical approach, arguing that contemporary legal practice should move on from hidebound traditions that better reflect the needs of classical litigants than contemporary ones. More nuanced and other angles are possible, of course.

The success of the volume in this form would stem from its uniqueness as a resource for law and rhetoric teachers. We are not familiar with any volume that exposes law students or students of rhetoric to classical rhetoric while connecting what they learn in a systematic way to contemporary practices in the field of law (or any other profession).

A less ambitious final product might take the form of a series of essays in a special issue of a law review. For example, one of our schools could host a symposium where we present the papers and then its law review would publish proceedings as a special issue. Such resources would likely be useful in a law school class, but they would be less likely to be used outside the legal academy (it’s not as easy for non-law faculty to find law review articles).

We are already looking for ways to engage scholars of law and rhetoric in discussions regarding our early observations: The group submitted two panel proposals for the 2018 LWI conference (one proposal discussing our reading-group procedure and one discussing substantive insights), and we plan to submit a proposal for the 2018 Rhetoric Society of America conference as well.

I hope that the members of the group will have more to say about what they are discovering in the coming months and years.

Research ethics: Gender as a variable in NLP

4 Apr

I’ve previously posted on the talk I’m giving today (April 4) at EACL in Valencia. This post provides the slides with the accompanying notes. (If you are reading this before US Eastern bedtime on April 4, it may not be the final version, as I’m editing the slides while watching the earlier presentations during the day.) Here, again, for your reading pleasure, is the abstract of the paper I submitted at EACL, but note that the last couple slides go far afield of the specific paper…

Researchers in natural-language processing (NLP) and related fields should at- tend to ethical principles in study design, ascription of categories/variables to study participants, and reporting of findings or results. This article offers an ethical framework for using gender as a variable in NLP studies and proposes four guidelines for researchers and practitioners. The principles outlined here should guide practitioners, researchers, and peer reviewers, and they may be applicable to other social categories, such as race, applied to human beings connected to NLP research.

Pre-print of the EACL paper also appears on the previous post.

I welcome your thoughts.


Gender as a variable in writing studies–presentations and paper accepted

14 Feb

As I noted back in November, I’m presenting “Gender as a variable in writing studies: Ethics and methodology” at the Writing Research Across Borders IV conference in Bogotá, Columbia, on Thursday, February 16. While preparing for WRAB, I wrote an article that has been accepted to appear in the peer-reviewed conference proceedings of the First Workshop on Ethics in Natural Language Processing in conjunction with the 2017 conference of the European Chapter of the Association for Computational Linguistics (EACL 2017), in Valencia, Spain. I’m traveling there to give that paper in early April. The article, titled “Gender as a variable in natural-language processing: Ethical considerations,” draws on similar principles as the WRAB presentation, but focuses on research in natural language processing.

Below are my slides and bibliography for the WRAB talk. Underneath that is the abstract and pre-print version for the EACL paper. (I’ll post the link to the official ACL anthology for the final paper when the proceedings are published.)

Slides for WRAB

Bibliography for WRAB

Abstract and pre-print for EACL paper

Researchers in natural-language processing (NLP) and related fields should at- tend to ethical principles in study design, ascription of categories/variables to study participants, and reporting of findings or results. This article offers an ethical framework for using gender as a variable in NLP studies and proposes four guidelines for researchers and practitioners. The principles outlined here should guide practitioners, researchers, and peer reviewers, and they may be applicable to other social categories, such as race, applied to human beings connected to NLP research.

“Gender as a variable in writing studies: Ethics and methodology” at WRAB in Bogotá

27 Nov

Organizers of the Writing Research Across Borders (WRAB) IV conference in Bogotá Colombia in February 2017 accepted my proposal to present a paper. I’ve paid my registration and booked my travel. I intend to have a near-final draft of a journal article ready for the conference; I hope to make a few final edits if I get good feedback there and ship it off the week after I return. I’m also looking forward to a couple days of kicking around with my spouse in Bogotá, which looks like an amazing city.

Here is the abstract for my paper:

Gender as a variable in writing studies: Ethics and methodology

This presentation uses results of a study where participants identified their own genders to illustrate ethical and methodological problems. It makes normative claims about gender as a variable in studies of written communication, including composition studies, technical and computer-mediated communication, and natural language processing.

Theories of gender and communication include early gender-difference/dominance views, social role theory, standpoint theory, and queer theory. Nevertheless, empirical researchers often use gender as a variable without explaining how they ascribe it to participants or what they intend it to mean. For example, Tebeaux and Allen performed studies in technical communication with gender as a variable but without explaining how they assigned this category to participants. Herring and Paolillo assigned author-gender labels using a qualitative heuristic. Yan and Yan and Rao and colleagues used automated heuristics to code author gender.

I argue on ethical grounds that (1) researchers should avoid using gender as a variable in their work unless it is necessary to answer their research questions; (2) researchers using gender as a variable should make explicit their methods for assigning gender categories; and (3) researchers should respect difficulties of research participants when asking them to self-identify for gender.

Works cited

Allen, Jo. “Women and Authority in…Communication Scholarship….” Technical Communication Quarterly 3.3 (1994): 271.

Herring, Susan C., and John C. Paolillo. “Gender and Genre Variation in Weblogs.” Journal of Sociolinguistics 10.4 (2006): 439–459.

Rao, Delip et al. “Classifying Latent User Attributes in Twitter.” Proceedings of the 2nd International Workshop on Search and Mining User-Generated Contents. Toronto, ON, Canada: ACM, 2010. 37–44.

Tebeaux, Elizabeth. “Toward an Understanding of Gender Differences in Written Business Communications…” Journal of Business and Technical Communication 4.1 (1990): 25–43.

Yan, Xiang, and Ling Yan. “Gender Classification of Weblog Authors.” AAAI Spring Symposium: Computational Approaches to Analyzing Weblogs. 2006. 228–230.


Use What You Choose, article posted on ACM

18 Nov

ACM has published the Proceedings of the 34th ACM International Conference on the Design of Communication (September 2016 SIGDOC ’16), including our article, “Use What You Choose: Applying Computational Methods to Genre Studies in Technical Communication.” My co-authors are William Hart-Davidson, Kenneth C. Walker, Douglas M. Walls, and  Ryan Omizo.

Our article is available for free download here:

#CCCC2017 panel will discuss undergraduate legal writing courses

6 Nov

Updated Nov. 7, with details about Legal Writing and Rhetoric SIG.

I’m pleased to be chairing a panel at the 2017 Conference on College Composition and Communication focusing on undergraduate legal writing courses. It takes place Friday, March 17, 03:30 pm – 04:45 pm
at Oregon Convention Center E142. There are five talented speakers, identified below.

I enjoyed helping with the panel proposal, which Lindsay Head spearheaded, and I’m looking forward to working with them to help draw connections among their presentations. Lindsay also led the effort to apply for a special interest group for this CCCC; the application was accepted, and it will happen 6:30 to 7:30 on the evening of Thursday, March 16th. If you teach a law-related writing course to undergrads or are interested in doing so, I urge you to attend.

Here is the panel proposal:

Creative Collaborations: Cultivating New Voices from the Undergraduate Legal Writing Community

140-character abstract: Emphasizing creativity and collaboration, panelists cultivate a space for legal writing in undergraduate English curricula.

Full proposal: Drawing from diverse backgrounds across disciplinary boundaries, this roundtable highlights the complexity of the undergraduate legal writing course and where it deviates and converges with traditional undergraduate writing pedagogies. Each demonstrating a distinct approach, panelists explore the importance of student collaboration and the recursive nature of writing, the process of initial course design and the implementation of a grading contract, the unique blending of pedagogical writing practices, the necessity for deep-revision strategies, and the specific challenge to equip students in a legal writing course outside the traditional purview of law schools. The panelists cultivate this distinctive discursive space, maintaining that legal writing should occupy a prominent space in our English curricula.

Speaker 1, Lisa Klotz, JD, PhD, Lecturer, University of California, Davis

In “Opening Arguments: Introducing Legal Discourse to Pre-Law Students,” Speaker 1, a former prosecutor and law-and-motion specialist, discusses her Legal Reasoning, Research, and Writing course for pre-law students at her university. Specifically, she aims to prepare undergraduates for their first-year law school legal reasoning and writing course. Speaker 1 adapts materials used when she taught legal writing and advocacy in a law school, and she develops assignments that could be used in first-year legal writing classes. Assignments emphasize rule-based reasoning and reasoning by analogy/distinction. Speaker 1’s approach stresses the recursive nature of writing and the importance of revision and feedback (both oral and written). To that end, she requires students to work collaboratively in groups of four (“law firms”). This collaboration also helps prepare students for the kind of teamwork they’ll do in law school (study groups) and in the practice of law (colleagues).

Speaker 2, Lindsay Head, MA, JD, a PhD student at Louisiana State

In “Initial Implementation: Grading Contracts and Course Design in Undergraduate Legal Writing,” Speaker 2 builds on the foundations laid by scholars such as Ira Shor, Peter Elbow, Jane Danielewicz, and Asao Inoue to implement a grading contract in her undergraduate legal and professional writing course designed for students considering professions both inside and outside the law. Speaker 2 discusses the unique benefits and challenges of grading contracts in an undergraduate legal writing course. Teaching legal writing for the first time at any institutional level, Speaker 2 also reflects on her collaboration with practiced colleagues to develop a sound curriculum, along with teaching the undergraduate legal writing course itself. Ultimately, Speaker 2 emphasizes the importance of working with experienced colleagues when bringing novel approaches to the legal writing classroom.

Speaker 3, Antonio Elefano, MFA, JD, Lecturer, University of Southern California

In “And Justice for All: What Non-Lawyers Can Learn from Legal Writing,” Speaker 3 asks the question: how can an undergraduate legal writing course be informed by rhetoric and composition as well as creative writing pedagogies? Speaker 3—a former corporate litigator, rhet/comp writing fellow, and fiction writer—will discuss how he combined pedagogical practices from law school, legal practice, rhet/comp and creative writing to craft his Advanced Writing for Pre-Law Students course at a large research university. The writing assignments are evaluated under a rhetoric and composition lens (using the university’s writing program rubric), with an emphasis on clear and persuasive prose. Finally, borrowing from creative writing, Speaker 3 employs formal writing workshops, where students comment both orally and in essay form on other students’ assignments to sharpen their critical eyes and to forge a sense of collective responsibility. The result: a glimpse of law school and legal practice for prospective law students as well as a practicum in logic, argumentation, and professional writing for everyone else.

Speaker 4, Phil Mink, JD, Assistant Professor, University of Delaware

In “The Rhetoric of the Law: Teaching Pre-Law Students to Write Like Judges,” Speaker 4, a former communications and antitrust lawyer, asks what is required to transform his pre-law students’ frequently chaotic language into prose that would work in a professional setting. Building upon the work of Joseph Williams, George Gopen, and other scholars, Speaker 4 will demonstrate a deep-revision strategy geared to paragraph structure, perhaps the most problematic area of writing for pre-law students. Most undergraduates write down their ideas not in the most logical order but in the order in which they occurred. Students are then left with the task of rearranging their sentences into coherent patterns, an absolute necessity for legal documents. Most students, however, lack this expertise, so the only way to teach them is to subject their writing to the same detailed revision process that an experienced writer would use. At the end of this challenging exercise, Speaker 4 shows how even those students who are ambivalent about the English language can develop a richer understanding of the rhetorical devices that will serve them well in their professional lives.

Speaker 5, Willie Schatz, JD, Lecturer, University of Maryland

In “Torts and Courts for Undergrads,” Speaker 5 draws from 17 years of teaching Legal Writing at his university and discusses the challenge of introducing prospective law students to the conventions of legal prose, a specialized form of writing that emphasizes logic and persuasion. In his quest to faithfully replicate the legal writing course his students will encounter in law school, he relies on scholars such as Helene Shapo, Richard Neumann, Michael Murray and Deborah Bouchoux. Speaker 5’s students learn how to read and write about cases, how to apply legal principles to factual scenarios, and how to analyze and synthesize the law and the facts. Most importantly, these future law students learn which rhetorical method will most move that audience. Speaker 5’s approach begins with students briefing cases in assault, battery, and false imprisonment. When convinced they understand the concept, students write memorandums based on fact patterns created by Speaker 5 and his colleagues. The students complete their preparation by writing a Memorandum Supporting a Motion for Summary Judgment from a factual scenario. The end to these means? Students become familiar and comfortable with rhetorical and writing techniques that surely scared them on their first day of class. Speaker 5 expounds upon this process through which students leave equipped to handle the (now less) difficult task of writing like the attorneys they hope to become.