Cho on Precedent as a Social Phenomenon: System, Language, Symbol

Sungjoon Cho, Chicago-Kent College of Law, has published Precedent as a Social Phenomenon: System, Language and Symbol in the Chicago-Kent Research Paper Series. Here is the abstract.

Precedent has often been analyzed along the rationalist line and touted for its market-friendly and efficiency-enhancing properties. Yet this consequentialist approach can hardly demonstrate that precedent is in fact a product of habit and custom. This article approaches precedent as a social phenomenon and explains its ostensibly unquestioned compliance pull in terms of system, language and symbol. The linguistic structure of precedent, as a reproductive mechanism, collectively represents the preexisting normative structure that is largely taken-for-granted in a Bourdieuvian sense. Markedly, the social framework on precedent is paradoxically salient in international law, which lacks a centralized, sophisticated legal-institutional complex as seen in a domestic legal system. This article applies this social framework to the jurisprudence of the World Trade Organization (WTO).

The full text of the article is not available for download from SSRN.

Communicating Through Dress

Karen Thornton, George Washington University Law School, is publishing Parsing the Visual Rhetoric of Office Dress Codes: A Two-Step Process to Increase Inclusivity and Professionalism in Legal-Workplace Fashion in volume 12 of Legal Communication & Rhetoric (2015). Here is the abstract.

Legal employers expect attorneys in their offices to use the ethos of personal appearance to project an image of competence to clients. This expectation is largely unspoken, however, and polling and anecdotal evidence alike show that in today’s workplace, employers are frustrated with the level of professionalism demonstrated by new employees. The goal of this article is to encourage open conversations about workplace fashion as it relates to an attorney’s professional identity. It is in both the employer’s and employee’s interests to clarify employer expectations and empower new members of the legal profession to adopt a personal sense of style that projects competence, leadership, and professionalism, without subtracting out the self. Professional style and ethos, not conformity, should be the goal of office dress codes. This article is written from the perspective of a legal writing professor and advocates an approach to building a positive office culture by training new lawyers to parse the message of unwritten dress codes and participate in drafting inclusive office policies that accommodate disparate cultural, racial, and gender experiences. By making the unconscious conscious through open communication about employer goals and employees’ professional identities, biases can be overcome and new attorneys prepared for a profession where choice of dress projects an instantaneous message about an individual’s business judgment.

Download the article from SSRN at the link.

The Establishment Clause, Religious Symbols, Endorsement, and Coercion

Claudia E. Haupt, Columbia University Law School, is publishing Active Symbols in 55 Boston College Law Review (2014). Here is the abstract.

Visual representations of religious symbols continue to puzzle judges. Lacking empirical data on how images communicate, courts routinely dismiss visual religious symbols as “passive.” This Article challenges the notion that symbols are passive, introducing insights from cognitive neuroscience research to Establishment Clause theory and doctrine. It argues that visual symbolic messages can be at least as active as textual messages. Therefore, religious messages should be assessed in a medium-neutral manner in terms of their communicative impact, that is, irrespective of their textual or visual form.
Providing a new conceptual framework for assessing religious symbolic messages, this Article reconceptualizes coercion and endorsement — the dominant competing approaches to symbolic messages in Establishment Clause theory — as matters of degree on a spectrum of communicative impact. This focus on communicative impact reconciles the approaches to symbolic speech in the Free Speech and Establishment Clause contexts and allows Establishment Clause theory to more accurately account for underlying normative concerns.

Download the article from SSRN at the link.