Wright on Gender Affirming Rhetoric

Emerson Wright, Stetson University College of Law, has published Gender Affirming Rhetoric. Here is the abstract.

During the runup to the 2024 election, virtually every person who watched an American football game saw an advertisement alleging that Kamala Harris was “for they/them,” while “President Trump is for you.” Candidates and interest groups spent more than $200 million on ads shaping and preying on public perception of trans people, and Democrats wasted no time blaming Kamala Harris’s electoral loss on messaging around trans issues. On the heels of a contentious election that relied heavily on this type of weaponized culture war messaging, misleading and hostile discourse about transgender people and the issues they face is hard to escape. Transphobic debates dominate the public sphere, often fueled by cisgender anxious compulsions to categorize others according to heteronormative gender roles. Even the Olympics were marred by a transphobic harassment campaign against a gold medalist who is not in fact transgender. More broadly, concerns about slippery slopes and far-reaching hypotheticals have birthed a moral panic about the ways trans people disrupt the cultural order, and courts have been complicit in reinforcing traditional cisgender norms even when it causes real harm to trans people. The U.S. legal system uses traditional legal rhetoric as the generally accepted form of logical reasoning, a form of reasoning that relies heavily on categories and syllogistic reasoning to reinforce heteronormative social roles and hierarchies. Traditional legal rhetoric ratifies hate-motivated marginalization of peoples who defy, transcend, resist, or reject classification according to traditional cisgender norms. For example, restrictions and bans on gender affirming healthcare effectively relegate trans folks to a permanent lower caste by not only denying them essential medical care, but also by signaling that they are unworthy of recognition, support, or dignity, thereby reinforcing their systemic marginalization. Traditional legal rhetoric is designed to preserve the status quo through conservative syllogistic reasoning that is more concerned with validity than with truth, justice, and equity. Thus, it cannot be an effective tool to advocate for trans rights that do not fit within cisgender-normative categories which do not account for the truth of non-binary trans people. Advocates seeking to disrupt the status quo must therefore experiment with more dynamic rhetoric traditions, such as diasporic and indigenous rhetorics, that make space to resolve the issues faced by marginalized communities. Diasporic and indigenous rhetorics are capable of revealing inherent injustices and creating workable solutions to the real problems faced by the trans community. This Article examines Tennessee’s youth gender affirming healthcare ban and the resulting Skrmetti case through a critical and comparative legal rhetoric lens to demonstrate exactly how true justice for trans people cannot be achieved using traditional legal rhetoric. In effect, dominant rhetorical methods stack the deck against trans rights, so when courts and advocates try and fail to fit trans issues into strict legal categories, such as binary gender norms, they ultimately harm trans autonomy by rejecting the very idea that a person could be non-binary. Alternative rhetorics can better serve the justice interests of trans Americans because they center and prioritize justice, dignity, and selfdetermination. This Article ends by explaining how advocates can deploy strategies informed by alternative legal rhetorics to trans healthcare cases to achieve justice, dignity, and self-determination for the trans community.

Download the article from SSRN at the link.

Grossman and Friedman on The Quick and the Dead: The Uses and Misuses of History in Abortion Jurisprudence

ICYMI: Joanna L. Grossman, Southern Methodist University School of Law, and Lawrence M. Friedman, Stanford University School of Law, have published The Quick and the Dead: The Uses and Misuses of History in Abortion Jurisprudence at 46 Women's Rts. L. Rep. 1 (2024).

On June 24, 2022, a solid conservative majority of justices on the United States Supreme Court decided that the time had come to overrule Roe v. Wade, and it did so in Dobbs v. Jackson Women’s Health Organization. The opinion in Roe, according to the majority in Dobbs, “was egregiously wrong from the start.” And the time had come to get rid of it once and for all. There was no constitutional right to an abortion, according to the majority. In the Court’s words, “the authority to regulate abortion must be returned to the people and their elected representatives.” Dobbs is and will remain controversial. Abortion is clearly a major issue, politically speaking, with strong passions on both sides. Roe v. Wade itself was also controversial from the very beginning. Abortion had been a contested matter before that decision; and Roe itself was never accepted by a large minority of Americans, particularly in the South. Both sides in the abortion controversy have appealed to the historical record. The Dobbs majority opinion relies on the criminalization of abortion in the second half of the nineteenth century to conclude that abortion cannot be recognized as a fundamental right under the Fourteenth Amendment. In this article, we want to re-examine that history. It would be naïve to think that historical considerations made a crucial difference in the Dobbs decision (despite what the opinion claims); or that it will be decisive in a related dispute over the Comstock Act and the legality of abortion pills. But historical rhetoric has been a prominent tool in the abortion dispute; and this makes it worthwhile to pick apart the historical arguments. Yet this is not only, or primarily, a study in legal history. It is a study of the shape and meaning of the abortion controversy over time. It is a study of how the social context molded that controversy, in the past, and in the present. The goal is to broaden our understanding, first, of the abortion issue, and beyond that, how politics, religion, ideology, and other factors bear on the question of unborn life. The aim is objectivity—if that is possible. We will first consider the particular ways in which history was deemed relevant to the majority’s ruling in Dobbs and note the historical claims that are contested or even obviously wrong. Then, we will get to the heart of the article, in which we examine the history of abortion law and policy in social context. This analysis lays bare the absurdity of grounding constitutional rights in “history,” when laws and policies are plucked from their social context and dropped into a world that would have been unrecognizable to those who lived at the relevant time in history. Abortion is, as before, a controversial issue. History, as we said, cannot convince either side that their view is right and the other view wrong. What it can do is shine the light of scholarship on the history of this controversy, with as much rigor as the subject allows. When we do this, the historical arguments in the Dobbs opinion seem more and more irrelevant. Those arguments, we have argued, were based on a profound misreading of the social context in which the abortion issue in Victorian times played out. Today, we live in a very different world. The terms of the debate in the nineteenth century are not the terms of today. They are in fact, as we tried to show in this article, essentially obsolete.

Download the article from SSRN at the link.

Davis on [Classical] Lawyers as [Digital] Public Speakers: Classical Rhetoric and Lawyer Digital Public Commentary @MyLegWriting

Kirsten K. Davis, Stetson University College of Law, is publishing [Classical] Lawyers As [Digital] Public Speakers: Classical Rhetoric and Lawyer Digital Public Commentary in the Nevada Law Journal. Here is the abstract.

Arguably the contexts of speaking and writing for lawyers of ancient Greece and Rome and lawyers of today could not be more different. But, classical rhetorical theory, developed 2,000 years ago for face-to-face interactions in public squares and courtrooms, can be productively applied to improve our understanding of modern lawyers’ digital communication practices. This article first argues that lawyers have an ethical responsibility to write as “citizen lawyers” and provide legal commentary in the digital public sphere. Then, applying classical rhetorical theory, this article explores the problems and possibilities of lawyers’ digital rhetoric. The article is not a handbook of rhetorical techniques; rather it offers lawyers a rhetorical perspective on public commentary in a digital environment.

Download the article from SSRN at the link.

Page on President Trump's Legal Narratives @ProfCathrenPage

Cathren Page, Barry University School of Law, has published Astonishingly Excellent Success or Sad! Loser! Failure: Why President Trump's Legal Narratives "Win" with Some Audiences and "Lose" with Others at 18 Connecticut Public Interest Law Journal 53 (2018).

Download the article at the link.

Klatt on Legal Argumentation and the Rule of Law @profklatt

Matthias Klatt, University of Graz, Faculty of Law, has published Legal Argumentation and the Rule of Law. Here is the abstract.

Both the concept of legal argumentation and the concept of the rule of law are contested and subject to irrationality objections. The present article refutes these objections by analysing the two concepts and focussing on their mutual relation. Based on a new account of the rule of dual-natured law, it elaborates in detail on how law’s dual nature play out in the various forms and problems of legal reasoning, allowing for a third theory of legal argumentation which integrates formal and material elements by means of optimization.

This essay has appeared as "The Rule of Dual-Natured Law, in Legal Argumentation and the Rule of Law 27-46 (Eveline Feteris, Harm Kloosterhuis, Jose Plug, and Carek Smith, eds.; The Hague: Eleven International Publishing, 2016). Download the essay from SSRN at the link.

Abrams on References to Baseball in Judicial Opinions and Written Advocacy

Douglas E. Abrams, University of Missouri School of Law, has published References to Baseball in Judicial Opinions and Written Advocacy at 72 Journal of the Missouri Bar 268 (September-October 2016). Here is the abstract.

Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing - conciseness, precision, simplicity, and clarity. Future columns will be posted as they are published every three months or so.

Download the essay from SSRN at the link.

Solan and Gales on Finding Ordinary Meaning in Law: The Judge, the Dictionary, or the Corpus?

Lawrence M. Solan, Brooklyn Law School, and Tammy A. Gales, Hofstra University, are publishing Finding Ordinary Meaning in Law: The Judge, the Dictionary or the Corpus? in The International Journal: Journal of Legal Discourse. Here is the abstract.

Courts in the U.S. frequently apply a rule of statutory construction that calls for the words in laws to be given their “ordinary meaning”. The rule is based on the presumption that legislatures are most likely to have intended the language to be understood in their ordinary sense and on the value that people subject to such laws will more likely comprehend the rights and obligations granted to them. Courts are not, however, in accord when it comes to determining which of a term’s available meanings is the “ordinary” one. This article describes three methods for making this determination: the judge’s linguistic intuitions, dictionary definitions, and reference to linguistic corpora. We argue that the use of corpus analysis enhances the legal system’s ability to rely on actual distributional facts about word usage, thus enhancing the accuracy of ordinary meaning analysis. We apply the three methods to a case pending before the U.S. Supreme Court, Shaw v. United States, at the time this article is written. The issue in Shaw is whether the expression “defraud a financial institution” applies to a situation in which the defendant tricked a bank into releasing to him the funds of another depositor, when the bank suffered no loss. We look first at linguistic literature based largely on intuition, then at dictionary definitions, and finally at a corpus. Examining hundreds of examples from the Corpus of Historical English (COHA) developed at Brigham Young University, we find that the verb “defraud” is virtually always used to describe a situation in which the object of the fraud is also the target of the ultimate loss. Analyses based on the intuitions of linguists and on dictionary definitions are consistent with this result, although less robust. We conclude that if the Court wishes to be faithful to the ordinary meaning of the statutory language, it should rule that the statute does not apply to this situation.

Download the article from SSRN at the link. 

Batter Patter: Potuto on Baseball and Legal Argument

Josephine R. Potuto, University of Nebraska, Lincoln, College of Law, has published Swinging at the Facts: How Baseball Informs Legal Argument. Here is the abstract.

In this article, I use baseball as a springboard for discussing persuasive legal argument. In particular, I compare a lawyer making a legal argument to a batter at the plate. A batter with a well-made bat is poised to hit, but he or she still must connect with the ball. A lawyer with an accurate and complete rendition of applicable black letter law is poised to craft a persuasive argument, but he or she still must connect with the facts. The article was great fun to write (especially the footnotes), and, I hope, will be fun to read. I also hope it is instructive on the subject of written advocacy and also on the subject of baseball. Baseball long has held fascination for legal scholars. This article joins the long line of law review articles that use baseball as focus or jumping off point.

Download the article from SSRN at the link.

Higdon on Oral Advocacy and Vocal Fry

Michael J. Higdon, University of Tennessee College of Law, is publishing Oral Advocacy and Vocal Fry: The Unseemly, Sexist Side of Nonverbal Persuasion in volume 13 of Legal Communication & Rhetoric: JALWD (2016). Here is the abstract.

In 2015, Naomi Wolf warned that “the most empowered generation of women ever — today’s twentysomethings in North America and Britain — is being hobbled in some important ways by something as basic as a new fashion in how they use their voices.” She was referring to the phenomenon referred to as "vocal fry" — a speech quality in which the speaker lowers her natural pitch and produces a "creaking" sound as she talks. Naomi Wolf is not alone in her warnings; vocal fry has received quite a bit of negative attention recently. Specifically, these critics warn that those who speak in vocal fry are doing themselves great harm by undermining the speakers’ overall perceived effectiveness. In fact, recent studies even lend some support to these arguments, showing that listeners tend to rate those who speak in vocal fry more negatively. The problem, however, is that much of this criticism is directed at young women, and for that reason, some defenders of vocal fry have countered that these criticisms are merely attempts to regulate how women talk. In other words, a preference for speech that does not contain vocal fry is actually motivated by pernicious stereotypes about how women "should" talk. Thus, on the one hand, there are those studies supporting the argument that women who engage in vocal fry are less likely to be perceived positively, yet on the other hand, there exists the very real likelihood that these perceptions are based on gender stereotypes. Accordingly, the question emerges: what should a young woman do? Should she eliminate all instances of vocal fry from her speech so as to maximize her perceived effectiveness as a public speaker if, in so doing, she is reinforcing the very gender stereotypes upon which such preferences are based? Or should she openly confront such stereotypes and employ vocal fry as much as she likes, knowing that, by taking that approach, she is taking the risk that she might be hurting not only herself but also those upon whose behalf she speaks? This essay, by first discussing this background on vocal fry, delves into that very dilemma. It does so specifically in the context of female attorneys given that 1) public speaking is a key component upon which their effectiveness is gauged and 2) to the extent their public speaking is judged to be less than ideal, they are not only harming themselves, but also potentially a client. Finally, in wrestling with this question, these essay hopes to shed light on a bigger concern — specifically, how useful are studies on effective nonverbal behavior when the results of those studies are largely driven by underlying societal prejudice.

Download the article from SSRN at the link.

Coulson on Legal Oratory in the Processus Sathanae

Doug Coulson, Department of English, Carnegie Mellon University, has published The Devil's Advocate and Legal Oratory in the Processus Sathanae at 33 Rhetorica: A Journal of the History of Rhetoric 409 (2015). Here is the abstract.

Modern readers have been baffled by the combination of legal, dramatic, and theological elements in the 14th century Processus Sathanae, a mock trial drama in which the devil’s advocate and the Virgin Mary employ various Roman law concepts in a courtroom debate regarding the devil’s claim that he was wrongfully dispossessed of humanity. This article examines the Processus Sathanae along with an early source of the drama in a Marcionite creation dialogue and argues that by foregrounding equitable and emotional appeals the drama taught late medieval law students important lessons regarding legal oratory during a crucial period in the development of European jurisprudence. 

Download the article from SSRN at the link.

What Judges Talk About When They Talk About Lawyers' Roles

Samuel J. Levine, Touro College Law Center, has published Judicial Rhetoric and Lawyers' Roles at 90 Notre Dame L. Rev. 1989 (2015). Here is the abstract.

Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers’ ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. In contrast, private attorneys have a duty to zealously represent the best interests of their clients, within ethical bounds, but without taking into account broader notions of pursuing a just outcome. In some ways, criminal defense attorneys have a greater license or duty to engage in zealous representation of the interests of their clients, permitting or requiring them to use tactics that are questionable or prohibited for other private attorneys. This Essay considers the rhetoric some judges have used to characterize the respective duties of prosecutors and criminal defense attorneys. The Essay suggests that, although this rhetoric often expresses admirable aspirations and ideals, it improperly blurs the lines between the roles different lawyers play within the adversarial system. Specifically, these judges have used language that would seem to place additional limitations on both the methods prosecutors employ in seeking to obtain just convictions and the tactics criminal defense attorneys employ in zealous advocacy of their clients’ interests. This Essay concludes that judges should avoid such rhetoric, which has the potential to undermine basic principles of the American legal system.

Download the essay from SSRN at the link.

Comparing Law and Magic

Rostam J. Neuwirth, University of Macau, Faculty of Law, E32, has published Law and Magic: A(nother) Paradox? at 37 Thomas Jefferson Law Review 139 (2014). Here is the abstract.

In the past, paradoxes and similar rhetorical figures that are summarized by the term “essentially oxymoronic concepts”, have been frequently applied to describe mystical experiences or, more generally, “change” that represents the uncertain or the unknown. Thus, their usage has primarily been a privilege of the arts, literature or the occult sciences. Today, however, essentially oxymoronic concepts are increasingly permeating scientific, legal and other public discourses as much as advertisements or daily conversations. Concepts like “globalization paradox”, “co-opetition”, and “piracy paradox”, products labeled “ice tea” and “Sports Utility Vehicles (SUVs)”, and films entitled “True Lies”, are just a few examples that testify to this wider trend. Their usage appears especially prevalent in attempts to scientifically describe and understand the often complex relations between two or more different phenomena or fields. In this regard, the relation between law and magic may be no exception, as it can also be framed by, or gives rise to, several paradoxes. For instance, in early history, and later, in the context of colonialism, laws have often outlawed magic as “witchcraft” or “charlatanry”, based on the belief that their character is irrational, as opposed to the rational character of the law. Paradoxically though, contemporary laws and legal practice still maintain a high degree of rites, rituals and rhetoric, similar to those that have been applied in magic. Similarly, as Jerome Frank has remarked, despite the law’s focus on certainty, it striking to see how often “magical phrases” are used in its language. The apparent contradictions in the nature and language of the law are therefore taken as an opportunity to cast some light on various issues that link law and magic in order to gain some insights about the nature, origin, and role of law generally.

Download the article from SSRN at the link. The article forms part of the conference papers from the Law and Magic symposium held at Thomas Jefferson School of Law, June 2014.

The Legal Art (?) of Being Disagreeable

Justin Wedeking and Michael Zilis, both of the University of Kentucky Department of Political Science, have published The Use of Disagreeable Language in Supreme Court Opinions. Here is the abstract.

We explore the factors that lead Supreme Court justices to integrate disagreeable language into their written, signed opinions. We suggest that disagreeableness is primarily a product of two broad sets of factors: position taking and policy influencing. Examining judicial opinions from 1946-2011 using three different text-based measures of negative language, we find consistent evidence that justices are more likely to draw on disagreeable language for both policy-based reasons as well as position taking. Moreover, we find that several predictors are robust across majority, dissenting, and concurring opinions. Furthermore, to explore one consequence of opinion language, we show that disagreeable language is negatively related to the size of majority coalitions, suggesting important implications for the legitimacy of the Supreme Court.

Download the article from SSRN at the link.

Law, Speech, and Interpretation

Lawrence M. Solan, Brooklyn Law School, and Silvia Dahmen, University of Cologne, have published Legal Indeterminacy in the Spoken Word as Brooklyn Law School Legal Studies Paper No. 418. Here is the abstract.

A great deal is written about difficulties in construing legal texts. Much less effort has gone into identifying interpretive problems that result from spoken language. This paper does that, by discussing how our abilities to perceive and understand speech lead to misunderstandings in legal contexts. Specifically, there are numerous battles over what was actually said in recorded speech. These disagreements are often reflected in disputes over how the interaction should be transcribed. We discuss many such examples, and explain them in terms of well-studied phonetic phenomena. These include our difficulty in segmenting speech into words (we speak without using a spacebar), and, in English, the fact that unstressed vowels, and some consonants, are reduced to the point of being indistinguishable, or even inaudible. For purposes of exposition, we compare cases involving the misperception of recorded speech in legal contexts with the misperception of song lyrics. Finally, we discuss our lack of memory for both the exact words spoken, and for human voices with which we are not sufficiently familiar. Our failure to recall exact words creates serious problems for the legal system with respect to prosecuting false statements made verbally, and enforcing oral contracts.

Download the article from SSRN at the link.

Legal Argument and International Law

Elgar Publishing has issued Epistemic Forces in International Law: Foundational Doctrines and Techniques of International Legal Argumentation by Jean d'Aspremont. Here is a description of the book's contents from the publisher's website.

Epistemic Forces in International Law presents a comprehensive examination of the methodological choices made by international lawyers and provides a discerning insight into the ways in which lawyers shape their arguments to secure validation within the international legal community. International law is defined in this book as an argumentative practice, articulated around a set of foundational doctrines and deployed through rhetorical techniques. Taking an original approach, Jean d'Aspremont focuses on five key foundational doctrines of international legal theory and five key techniques deployed in international legal argumentation. He argues that mastering these foundational principles and argumentative procedures shapes the discourse of international lawyers as much as these discourses shape these foundational doctrines and techniques of legal argumentation. This book is a pertinent contribution to the methodology and theory of international law, illustrating the rationale of the choices made by lawyers in the doctrines of statehood, sources, law-making, international organizations and effectivity. This accessible reflection on the conceptual, theoretical and methodological perspectives of international law will be a salient point of reference for legal academics, researchers and practitioners alike.

Cicero in the Law Courts

Jon Hall, University of Otago, New Zealand,  has published Cicero's Use of Judicial Theater with the University of Michigan Press. It is available in both hardcover and paperback. Here is a description of the contents from the publisher's website.

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.
While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

 

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater/?s=description#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

Jon Hall is Associate

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

Jon Hall is Associate

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

Historians and Legal Writing

Douglas E. Abrams of the University of Missouri School of Law directs us to writers in other disciplines, including historian Barbara Tuchman, for examples of clarity and precision, in his columns in Precedent, the Missouri Bar's quarterly magazine. See here and here.

Law, Emotion, and the Antebellum Constitution

Doni N. Gewirtzman, New York Law School, has published 'Vital Tissues of the Spirit': Constitutional Emotions in the Antebellum United States, in The Ashgate Research Companion to Law and the Humanities in Nineteenth-Century America (Nan Goodman & Simon Stern, Ashgate, 2015). Here is the abstract.

This Chapter provides a framework for examining the ambivalent and reciprocal relationship between emotions and constitutional law through three interrelated lenses: text, instrument, and symbol. In the years before the Civil War, discourse about feelings impacted institutional struggles for interpretive supremacy over the constitutional text, affected the Constitution’s ability to function as a legal mechanism for emotion management, and shaped its status as a national symbol.

Download the essay from SSRN at the link. 

Legal Language and Rhetoric in Nineteenth-Century America

Robert L. Tsari, American University, Washington College of Law, has published Legal Language in Nineteenth-Century America in The Ashgate Companion to Law and Humanities in Nineteenth-Century America (Nan Goodman & Simon Stern eds.; Ashgate, 2015).

This contribution explores the development of legal language in nineteenth-century America as a species of political discourse. In particular, I sketch the broad, competing trends in legal language. On the one hand, legal rhetoric became more popular and fragmented, as the sources of law multiplied. On the other hand, the law also became increasingly sophisticated and specialized with the rise of institutions. These features on the surface of legal rhetoric hinted at deeper changes in the imperatives of political development and efforts at cultural resistance.

Download the essay from SSRN at the link.

A New Blog and a New Book of Interest

John Denvir, Research Professor of Law at University of San Francisco Law School, has launched a new blog, Guile Is Good, in conjunction with his new book, Guile Is Good (available through Amazon in both paperback and Kindle versions). Here's an excerpt from the book's introduction:

I want to tell the story of how lawyer creativity and craft shape the world we live in. Since humor often reveals truths that more serious talk misses, let me start with a lawyer joke that encapsulates my thesis.
A university search committee is interviewing candidates for the presidency of the university. One candidate is a mathematician, another a sociologist, and the third a lawyer. At the end of each interview, one member of the committee throws in a final question: “Excuse me, but can you tell us how much is two plus two?”
The mathematician responds, “That is a really complex question, but for present purposes we can say that if you take an abstract two and add another abstract two, you get an abstract four.” The questioner thanks him for his answer.
The sociologist is asked the same question at the end of her interview. She replies that “this is an empirical question that requires very careful collection and analysis of data, but roughly the range is from three to five with a mean of about four.” The questioner thanks her for her answer.
As he is about to leave the interview room the lawyer is also asked, “How much is two and two?” The lawyer slowly turns around, approaches the committee, and inquires in a soft voice, “How much do you want it to be?”
The lawyer gets the job.
The punch line anticipates the thesis of this small book—the public respect and fear lawyers because they sense we use our creativity and craft (and craftiness) to shape the world. As lawyers, we should take great pride in the power our skills provide us and think carefully about how we choose to employ them.

Professor Denvir is also the author of Legal Reelism: Movies as Legal Texts (University of Illinois Press, 1996) and Freeing Speech: The Constitutional War Over National Security (New York University Press, 2012).