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.

Does it matter to the legal profession and pedagogy that men and women didn’t write differently?

3 Nov

I gave a talk this week at a law school regarding my article in Written Communication from October 2016, “Gender/Genre: The lack of gendered register in texts requiring genre knowledge.” The article reports the results of an empirical study, but it does so with reference to theories from corpus linguistics and relevance-theoretic pragmatics, not the sort of thing that most law faculty are interested in. Instead, I wanted to emphasize for them the implications of my study in the legal profession and pedagogy and to situate it within a conversation about gender differences more broadly.

The article is one voice in a cultural and scholarly discussion about gender difference in communication. The conversation about gender differences has a folk component and a scholarly component. My article cites just three news stories—from The Boston Globe, CBS News, and The New Republic—but Google “gender difference” in Google news entries for a plethora.

Despite frequent studies that seem to show gender differences, my study showed that where men and women received similar training for a less than a year and set to a similar writing task in a profession to which they are socializing, their writing was statistically and practically indistinguishable.

This is important because difference discourse enables deficiency discourse. In other words, folks who talk of gender differences often end up talking about how some task may be more suited to men than to women. While there is evidence that women communicate differently than men in some contexts, particularly ones like social media without the constraints of professional conventions, there is not so much about the professional context and even less about professional writing.

Destabilizing folk beliefs about gender differences serves an important purpose in the legal profession, because we don’t want those folk beliefs to affect the confidence placed in female attorneys. In other words, we want to prevent gender discrimination in the legal workplace.

I used Biber’s involved/informational dimension[1] to identify variables to look for in a corpus of nearly 200 law-student papers. Several studies of gender differences in writing have used the involved—informational dimension. (See the article for discussion and citations. I won’t repeat that discussion here.)

The involved end of the dimension is frequently associated with women’s writing and the informational end with mens’. For example, Biber and colleagues examined a 123,000-word corpus of letters written by men (n = 187) and women (n = 51) between the 17th and 20th centuries.[2] Using the involved–informational dimension, they concluded that letters women wrote showed higher prevalence of involved characteristics than those men wrote. They also concluded that letters women wrote to other women were more involved than those they wrote to men, and letters men wrote to men were more informational than those they wrote to women (pp. 219-220).

Note that this suggests there is a sensitivity in the writers to the gender, and perhaps the discursive expectations of the audience. Thus, though men wrote more informationally than women, they did so to a lesser extent when writing TO women.

So, I wondered if men and women would abandon habitual, gendered communication practices when they wrote for an audience with more specific expectations for the writing in question. I collected students’ responses and final writing projects from their first-year legal writing course at two law schools in the Midwest. There were 197 participants of whom 193 indicated their gender. I asked students to indicate their gender in a free-form field, for reasons set out in the article and in some forthcoming work of mine. Based on their responses, I classed them into two gender categories, Gender M and Gender F.

None of the informational features varied significantly (p<0.05) with the gender of the author. Three of the involved features varied statistically significantly, but even they did not confirm an association between Gender F writers and the involved style, as the gender using these three involved features more frequently was Gender M, which tends to disconfirm a correlation between involved register and female authors in this sample.

Here, all three significant differences also had small effect sizes. (See the article for a discussion of this concept.) Two other features had small effect sizes, and all the rest had negligible effect sizes (none with r>.10). In short, it would be nearly impossible for a human reader to detect any differences based on author gender, consciously or unconsciously.

So in this study, linguistic register did not vary with gender where novice legal writers, after receiving less than a year of professional training, wrote in a form they understood to be convention-bound.

So what? The article makes its own arguments about its theoretical significance. What about significance to the legal profession and pedagogy?

The significance of my findings for the legal profession is simple: Law firms should expect men and women to communicate similarly, at least in writing. My study is one piece of evidence that women adapt to one genre of legal communication very similarly to men. Further research may reveal others.

None of this, however, means that judges or law-firm hiring partners, even female ones, are judging female associates according to the same standards as male ones. For example, in another recent voice in the scholarly debate, Professor Michael Higdon discussed the public distress over the use by women of “vocal fry,” a low tone of the voice that results in a gravelly sort of sound.[3] Apparently, it’s commonly used by the Kardashians, and many folks consider it an abomination in women’s speech. But I noted in a recent review of prize-winning Three-Minute Thesis presentations that male presenters make frequent use of vocal fry. I don’t know if anyone was complaining, but the speakers did after all win prizes for their performances.[4]

The bind, of course, is that women are told they should lower their voices to sound more authoritative. Their different—i.e., non-masculine—voices are seen as deficient, and the remedy is to make them sound more masculine. But they have to be careful not to go too far. This is similar to the bind where women, told to be more assertive like male counterparts are judged when they do so to be bossy or bitchy.

The significance of the conversation for legal educators is more complex. It fits into a broader conversation about women, communication, and the law. My study showed that men and women did not communicate distinguishably on the involved/informational dimension in first-year legal writing. I suspect that other characteristics, like vocal fry, are plenty common among men and disfavored mostly when women use them. With such characteristics, we need to let our female students know when they are doing it and that some folks find it annoying. The choice whether to use it or not must be theirs, and we should respect that choice.

We need to let ALL our students know first that many folk beliefs about gender differences in communication are ungrounded, and even some studies that purport to measure them are flawed (because, for example, they look at texts where men and women are not writing for the same purposes or with the same training); and second that some judgments are applied disproportionately to women.

Finally, we need to model the kind of leadership for them that we expect them to take up in the profession. When they become the hiring partners and judges of the future, they should not assume that a woman using vocal fry is a “valley girl” or “Kardashian wannabe”—in other words, they should withhold judgment about the person based on this superficial characteristic. But as good mentors, they may want to alert a female colleague to the rhetorical implications of her speech patterns, just as we as good teachers might do.

One professor in my audience noted that the first half of my pedagogical treatment puts a special burden on female students. Telling them that vocal fry represents a rhetorical danger requires them to add another thing to their checklist of things to do or not do based on gender. I acknowledge that is true. But until the second half of my pedagogical treatment is widely practiced and a new generation of decision-makers takes power in the profession, women will be subject to these kinds of judgments, and they deserve to know the risks so they can make their own choices.

[1] Douglas Biber, Variation across speech and writing 105 (1988).

[2] Douglas Biber, Susan Conrad & Randi Reppen, Corpus linguistics: Investigating language structure and use (1998).

[3] Michael J. Higdon, Oral Advocacy and Vocal Fry: The Unseemly, Sexist Side of Nonverbal Persuasion, 13 Legal Comm’n & Rhetoric: JALWD 1 (2015).

[4] I’m grateful to have taken part in a Facebook discussion of Prof. Higdon’s work hosted by JALWD on October 18. It helped me refine my thoughts on pedagogy relating to this topic.

Hahn: The Stactive Style

3 Oct

I enjoyed getting to know Dr. Ed Hahn during our time in Minnesota’s PhD program in Rhetoric and Scientific and Technical Communication. He always struck me as a very smart and thoughtful guy. In the most recent issue of Rhetoric Society Quarterly, he demonstrated that amply with this essay:

Hahn, E. (2016). The Stactive Style: Whiteness and the Rhetoric of History. Rhetoric Society Quarterly, 46(4), 331–350. https://doi.org/10.1080/02773945.2016.1190461

In it, Hahn identifies a stylistic symptom of a challenge that justice-oriented scholars with commitments in postmodern philosophy must face. On the one hand, they need to document historical instances of injustice, for example by showing patterns of racism, in order to argue in a rhetorically effective way to remedy that injustice. On the other hand, they carry with them the postmodern skepticism toward historical narratives (grand or otherwise).

The symptom, according to Hahn, is the “stactive” sentence style. I’m normally not fond of portmanteau words, and stactive is one. Its parents are “stative,” referring to sentences (often constructed with the copula) that “express states of being rather than action” (e.g., “I am hungry.”); and “active,” referring to sentences where a change in state is described (e.g., “I ate lunch.”). Hahn argues stactive sentences have aspects of both parents, that they suggest a historicity and change while concealing any details (dates, agents, etc.) about the process. In short, they serve a stative function using active verbs.

Hahn gives numerous examples of writers who nod to the necessity of historical processes resulting in present-day statuses but obscure actors, objects, dates, and details of the process stylistically. In an essay in Rhetoric Review (2005), Kennedy, Middleton, and Ratcliffe write that “‘the logic of white supremacy,’ for instance, ‘emerged to justify the existence of slavery as well as the oppression of slaves, Chinese immigrants, American Indians, Jewish people, etc.'” (emphasis by Hahn; Hahn at p. 337, qtng. Kennedy, Middleton, and Ratcliffe).  Here, Hahn argues that “emerged” conceals the processes and any detailed account of how white supremacy emerged, despite the authors’ call for a ‘historicization’ of whiteness.

My gloss on this: Accepting postmodernism in this sense deprives us of confidence in tools (like critically rational discourse and empirical evidence) that rhetoric tells us we need to actually solve problems in the world. I agree.

Two additional thoughts:

  1. In my mind, this connects with work in cognitive linguistics showing that people who hear a story told with indirect verbs (passives, middle voice, nominalizations) tend to attribute less culpability to the human actors in the story. (See Fausey, C. M., & Boroditsky, L. (2010). Subtle linguistic cues influence perceived blame and financial liability. Psychonomic Bulletin & Review, 17(5), 644–650.)
  2. This makes me think of the concept in linguistics of the ‘middle voice,’ which comes somewhere between the ‘active’ and ‘passive’ voices. For example, if y0u say, “The coffee brewed,” the coffee is the subject of the verb, but it is not really an agent or a patient in this construction. The agent is removed. (I’m veering into stuff I don’t remember that well from linguistics, so take it with a grain of salt.) Middle voice also appears in English with reflexive pronouns. E.g., “He laid himself down,” or “She got herself out of there.” In some languages it is (or was) very common. (I remember a lot of it in Old Norse class.)

My Written Communication article has dropped…

24 Sep

My article in Written Communication is now available online. (The print version comes out next month.) You can read it on the journal’s website only if you have a subscription to the journal. You can read the version I submitted here (not formatted as it appears in the journal, but same content other than a few typo corrections):

Gender/Genre: The lack of gendered register in texts requiring genre knowledge

You can also contact me directly for a copy of the PDF from the journal (with the official page numbers).

Here’s the abstract:

Some studies have found characteristics of written texts that vary with author gender, echoing popular beliefs about essential gender differences that are reinforced in popular works of some scholarly authors. This article reports a study examining texts (N = 193) written in the same genre—a legal memorandum—by women and men with similar training in production of this type of discourse— the first year of U.S. law school—and finds no difference between them on the involved–informational dimension of linguistic register developed by Biber. These findings provide quantitative data opposing essentialist narratives of gender difference in communication. This essay considers relevance theory as a framework for understanding the interaction, exhibited in this and previous studies, of genre knowledge and gendered communicative performances.