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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.

‘Irreparable harm’ and legal arguments by analogy and example

29 Nov

I’m excited! My proposal for the 8th ISSA Conference on Argumentation in Amsterdam in July 2014 has been accepted. Of course, I still have plenty of work to do to get ready! Here’s my abstract:

This paper presents the results of a pilot empirical study of written legal arguments and oral reports of authors’ cognition to explore the following research questions: Do American lawyers perceive differences between arguments by analogy and arguments by example, and if so, how are those differences represented in their argumentative writing? Scott Brewer (1996), Lloyd Wienreb (2005; 2007), and Richard Posner (2006) engaged in a lively debate regarding exemplary and analogical reasoning in court opinions, but they did not consider actual arguments before trial or appellate court judges or the cognition of attorneys or judges arising around them. Macagno and Walton (2009), following Perelman and Olbrechts-Tyteca (1969) and harkening to the tradition originating with Aristotle, discussed the distinction between legal reasoning by example and by analogy. But their discussion was largely theoretical.

I will present results of a systematic textual analysis of a small random sample of memoranda in support of and in opposition to motions for preliminary injunction before U.S. trial judges. Because of the particular nature of preliminary injunction motions, which seek to prevent “irreparable harm” to the moving parties, memoranda relating to them often represent instances both of exemplary and analogical argument. I will characterize the cognition of authors of some of these memoranda based upon discourse-based interviews of them. Discourse-based interviews (Odell, Goswami & Herrington, 1983) are an adaptation of the think-aloud protocols developed by Herbert Simon and others and are common in studies in cognitive science (Ericsson & Simon, 1980). The results offer insight into whether the argument by example/analogy distinction is tenable in legal reasoning. These results should be of interest to argumentation theorists, legal philosophers, and teachers of legal reasoning and writing.