Mikhail on The Definition of "Emolument" In English Language and Legal Dictionaries, 1523-1806 @_John_Mikhail

John Mikhail, Georgetown University Law Center, has published The Definition of 'Emolument' in English Language and Legal Dictionaries, 1523-1806. Here is the abstract.

In its motion to dismiss in CREW et al. v. Trump, the Department of Justice (DOJ) defines the word “emolument” as “profit arising from office or employ.” DOJ claims that this “original understanding” of “emolument” is both grounded in “contemporaneous dictionary definitions” and justifies an “office-and-employment-specific construction” of that term. On this basis, it argues that the Emoluments Clauses of the Constitution “do not prohibit any company in which the President has any financial interest from doing business with any foreign, federal, or state instrumentality.” Unfortunately, DOJ’s historical definition of “emolument” is inaccurate, unrepresentative, and misleading. Particularly because the government may seek to utilize its flawed definition in subsequent court filings, this Article seeks to correct the historical record. It does so based on a comprehensive study of how “emolument” is defined in English language dictionaries published from 1604 to 1806, as well as in common law dictionaries published between 1523 and 1792. Among other things, the Article demonstrates that every English dictionary definition of “emolument” from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief: “profit,” “advantage,” “gain,” or “benefit.” Furthermore, over 92% of these dictionaries define “emolument” exclusively in these terms, with no reference to “office” or “employment.” By contrast, DOJ’s preferred definition — “profit arising from office or employ” — appears in less than 8% of these dictionaries. Moreover, even these outlier dictionaries always include “gain, or advantage” in their definitions, a fact obscured by DOJ’s selective quotation of only one part of its favored definition from Barclay (1774). The impression DOJ creates in its brief by contrasting four historical definitions of “emolument” — two broad and two narrow — is, therefore, highly misleading. The suggestion that “emolument” was a legal term of art at the founding, with a sharply circumscribed “office-and-employment-specific” meaning, is also inconsistent with the historical record. A vast quantity of evidence already available in the public domain suggests that the founding generation used the word “emolument” in broad variety of contexts, including private commercial transactions. This Article adds to that emerging historical consensus by documenting that none of the most significant common law dictionaries published from 1523 to 1792 even includes “emolument” in its list of defined terms. In fact, this term is mainly used in these legal dictionaries to define other, less familiar words and concepts. These findings reinforce the conclusion that “emolument” was not a term of art at the founding with a highly restricted meaning. Finally, the Article calls attention to the fact that the government’s dictionary-based argument is flawed in another, more fundamental respect. Little or no evidence indicates that the two historical dictionaries — Barclay (1774) and Trusler (1766) — on which DOJ relies in its brief to defend its “office-and-employment-specific” definition of “emolument” were owned, possessed, or used by the founders, let alone had any impact on them or on the American people who debated and ratified the Constitution. For example, neither of these dictionaries is mentioned in the more than 178,000 searchable documents in the Founders Online database, which makes publicly available the papers of the six most prominent founders. Nor do these volumes appear in other pertinent databases, such as the Journals of the Continental Congress, Letters of Delegates to Congress, Farrand’s Records, Elliot’s Debates, or the Documentary History of the Ratification of the Constitution. By contrast, all of the dictionaries that the founding generation did possess and use regularly — e.g., Johnson, Bailey, Dyche & Pardon, Ash, and Entick — define “emolument” in the broad manner favoring the plaintiffs: “profit,” “gain,” “advantage,” or “benefit.” To document its primary claims, the Article includes over 100 original images of English language and legal dictionaries from 1523 to 1806, as well as complete transcripts and easy-to-read tables of the definitions contained therein. A second study is currently underway of dictionaries from 1806 to the present, which seeks to determine how and why definitions of “emolument” may have changed over time. Collectively, these inquiries are designed to accomplish more than simply aiding judges and holding lawyers’ feet to the fire in the emoluments cases now pending in three federal courts. They also provide a basis for educating members of Congress, government officials, journalists, and the broader public about the historical meaning of this important yet obscure constitutional term.

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.

Drafting Foundational Documents: Think Before You Label?

Brian Christopher Jones, Academia Sinica--Institutum Iurisprodentiae (IIAS), is publishing Preliminary Warnings on 'Constitutional' Idolatry in Public Law (October 2015). Here is the abstract.

Contemporary societies covet the notion of a written constitution. Yet should Britain choose to draft one, can I offer this important suggestion: please, call it anything but a “Constitution”. This statement is only slightly made in jest; in fact, it is quite serious. Constitutional fetishism, constitutional worship or “constitutional idolatry”, as Michael Klarman refers to it, is nothing to take lightly. While there has been a copious amount of commentary on the prospects and potential form of a UK written constitution, in addition to its history and evolution, the possibility of constitutional fetishism or constitutional idolatry becoming a significant factor throughout the citizenry, in the political arena, and especially in constitutional review and adjudication, appears to have been left out of the discussion. This is unfortunate, because the enactment of a codified Constitution will have an impact upon all these aspects in one way or another, and the potential development of some form of constitutional worship should be further discussed and debated before any action is taken.

Although it is acknowledged that enacting any type of foundational document, whatever called, encompasses particular implications, this piece contends that attaching the word “constitution” to a foundational document enhances such consequences, leading to a more distinctive “constitutional” fetishism. Difficulties arise because over centuries the word “constitution” has evolved from a largely structure-based meaning into a widely expansive symbolic meaning. Beyond merely delineating the structure of a state, the word now carries a variety of connotations. Some see it as the ultimate illustration of “we the people” popular sovereignty or as a vindication of the rule of law, while others see it as the completion or ultimate formation of a state or a government. Indeed contemporary constitutions, and especially Constitutions, serve highly symbolic functions that can manifest into significant issues for law, politics and the wider democratic state. Nowadays the word “constitution” is often used as a legal, political, and psychological truncheon: it has been employed to have ordinary documents masquerade as constitutions, been brazenly used to hollow out jurisdiction, and also been applied to have legislators think in legal, as opposed to political, terms. Given some of the rhetoric in the UK surrounding the possibility of a written constitution coming into being (i.e., “A New Magna Carta”, “Constitution Carnival”), this article concentrates on a few acute examples of “constitutional” fetishism the US is currently grappling with; problems which could become substantially more relevant if a founding British document is enacted.

Download the article from SSRN at the link.

Flat-Out Fascinating

From Nick Sousanis, something special. Dr. Sousanis (Columbia, Ed.D. 2014)  has transformed his one-of-a-kind dissertation into a monograph examining comics and graphics in culture.

Description from HUP's website.

The primacy of words over images has deep roots in Western culture. But what if the two are inextricably linked, equal partners in meaning-making? Written and drawn entirely as comics, Unflattening is an experiment in visual thinking. Nick Sousanis defies conventional forms of scholarly discourse to offer readers both a stunning work of graphic art and a serious inquiry into the ways humans construct knowledge.
Unflattening is an insurrection against the fixed viewpoint. Weaving together diverse ways of seeing drawn from science, philosophy, art, literature, and mythology, it uses the collage-like capacity of comics to show that perception is always an active process of incorporating and reevaluating different vantage points. While its vibrant, constantly morphing images occasionally serve as illustrations of text, they more often connect in nonlinear fashion to other visual references throughout the book. They become allusions, allegories, and motifs, pitting realism against abstraction and making us aware that more meets the eye than is presented on the page.
In its graphic innovations and restless shape-shifting, Unflattening is meant to counteract the type of narrow, rigid thinking that Sousanis calls “flatness.” Just as the two-dimensional inhabitants of Edwin A. Abbott’s novella Flatland could not fathom the concept of “upwards,” Sousanis says, we are often unable to see past the boundaries of our current frame of mind. Fusing words and images to produce new forms of knowledge, Unflattening teaches us how to access modes of understanding beyond what we normally apprehend.

More here.

Dr. Sousanis is currently a post-doctoral fellow in the Department of English, University of Calgary.

What We Talk About When We Talk About Poverty: Racialized Metaphors and Anti-Poverty Programs

Ann Cammett, CUNY School of Law, has published Deadbeat Dads & Welfare Queens: How Metaphor Shapes Poverty Law at 34 Boston College Journal of Law and Social Justice 233 (2014). Here is the abstract.

Since the 1960s, racialized metaphors describing dysfunctional parents have been deployed by conservative policymakers to shape the way that the public views anti-poverty programs. The merging of race and welfare has eroded support for a robust social safety net, despite growing poverty and economic inequality throughout the land. This Article begins by describing the influence that metaphors have on the way people unconsciously perceive reality. It proceeds by examining historical racial tropes for Black families and how they were repurposed to create the Welfare Queen and Deadbeat Dad, the metaphorical villains of welfare programs. It also tracks the demise of welfare entitlements and the simultaneous ascendency of punitive child support enforcement intended to penalize both “absent” parents and families with non-normative structures. Ultimately, this Article argues that the focus on demonizing Black parents in the welfare system has created an obstacle to providing necessary resources to alleviate the suffering of a growing number of poor children of all races, the intended beneficiaries of public assistance.

Download the article from SSRN at the link. 

Rhetoric and Visualization In Brief Writing

Michael D. Murray, Valparaiso University Law School,  has published Visual Rhetoric and Storytelling in Five Sections of a Brief. Here is the abstract.

The rhetoric of visualization is critical to client-centered legal practice. Visualization through storytelling connects all subject areas in the law and extends far beyond the law to disciplines as varied as cognitive studies, brain science, and rhetoric and persuasion. Visual rhetoric is a growing topic of discussion and scholarship in the legal writing academy, as scholars and practitioners explore the potential of images as cognitive, communicative, and persuasive devices. Lawyers use stories and visual images and structures as framing devices, organizational schema, and persuasive rhetorical methods to communicate the context and meaning of a client’s situation and to improve the communication, reception, and understanding of legal argument with a given audience. Most legal writing and advocacy study has focused on the facts section for narrativity and storytelling, while visual rhetoric has focused on the argument section. This presentation will examine the use of client-centered narrative reasoning and visual rhetoric in five sections of trial level and appellate legal briefs: questions presented; introduction or summary of the argument; statement of facts or statement of the case; explanation sections of the argument; and application sections of the argument.

Download the paper from SSRN at the link. 

Law, Narrative, and the Use of Legal Fictions

Simon Stern, University of Toronto Faculty of Law, is publishing Legal and Literary Fictions in New Directions in Law and Literature (Elizabeth Anker and Bernadette Meyler, forthcoming). Here is the abstract.

Commentators on legal fictions often apply the term to doctrines that make the law’s image of the world seem distorted, bizarre, or fanciful. When doctrines such as corporate personhood and civil death are seen as fictional, this characterization depends on the starting point, but also on what flows from it. The fiction, it seems, holds the seed of a plot, and this latent narrative potential explains why legal fictions are sometimes likened to literary fictions. However, given that common-law judgments present themselves as rooted in precedent and are written in anticipation of their own use as precedents, this narrative potential is an ordinary feature of the law, not a distinctive quality of a few judgments or doctrines. Judgments, like Tribbles, are born pregnant, always capable of spawning. To single out, as fictions, a few that are wrapped in openly metaphorical language would imply that other doctrines, sparer of their means and more banal in their mode of expression, lack this quality. Thus to question the characterization of corporate personhood as a legal fiction is not to limit the scope of narratological inquiry in legal analysis, but to broaden that scope to include areas not usually considered to exhibit such self-consciously literary features as metaphor. As to legal fictions in particular, I argue that if they display a generative potential that invites analogy to literary fictions, that kinship owes more to the ways in which both fictional modes solicit a particular kind of attention, than to a shared ability to spin out narrative arrays. To develop these ideas, I consider the relation between patent misuse and copyright misuse; the question of whether steamboats are "floating inns"; the relation between legal fictions and what recent scholarship by literary critics has called "unnatural narrative"; and Duchamp's "Fountain" (1917).

Download the essay from SSRN at the link. 

Narrative, Constitutional Interpretation, and the Second Amendment

Ruthann Robson, CUNY School of Law, has published 27 Words at 13 MEMOIR: The Guns Issue 85 (2013). Here is the abstract.

The 27 words of the Second Amendment formed the basis of the United States Supreme Court's decision in District of Columbia v. Heller (2008), in which the 5-4 majority relied upon a wealth of interpretations of an "individual right" that accelerated after the assassination of President JFK. This blend of intellectual and "popular" constitutionalism has continued after Heller, despite mass shootings with assault weapons, with continued support for a particular construction of the text of the Second Amendment. This piece interweaves constitutional histories, theories, cases, text, and scholarship of the Second Amendment with popular culture and personal narrative to query whether the interpretation of an individual right inherent in the "27 words" should continue to prevail.

Download the article from SSRN at the link. 

Walk Like a Man, Talk Like a Man, and Then What?

John M. Kang, St. Thomas University School of Law, has published Does Manly Courage Exist? in volume 13 of the Nevada Law Journal (2013). Here is the abstract. 

If you are a man, you probably have been subjected to it throughout your life, I would imagine. I am referring to the societal summons for you to fulfill the obligations of your gender: “step up like a man,” “act like a man,” and a precursor when you were very young, “big boys don’t cry.” Me, I am especially taken with the injunction these days to “man up.” More economical than its predecessors, the call to “man up” pithily encapsulates the idea of manliness.

For to be a man requires that you do something. Perhaps your dear mother adores you as the apple of her eye, but, trust me, no one else — including (or is it especially?) your wife — takes her cue from Billy Joel’s schmaltzy serenade and loves you just the way you are. (And who are you kidding? Not even your mom really feels that way.)
No. You, my poor bloke, are instead told to comply with the expectations of your community — "man up." What does manning up entail, though? While its meaning, like that of many aphorisms, is imprecise, the injunction to "man up" when distilled to its essence is meant to prompt a man to comport himself with valor.
But what is valor? And, by extension, what is manliness? Prepared for a Nevada Law Journal symposium, this brief essay, in the process of exploring both questions in the domains of law and culture, fails unabashedly to provide tangible answers for either but gleefully unpacks several more. 

Download the article from SSRN at the link. 

Metaphor in Law

Linda Berger, University of Nevada, Las Vegas, School of Law, is publishing Metaphor in Law as Poetic and Propositional Language in The European Legacy: Towards New Paradigms, Journal of the International Society for the study of European Ideas (ISSEI). Here is the abstract.

My argument in this essay is that although lawyers routinely use and abuse metaphor as propositional language, they mostly neglect the use of metaphor as poetic language. Poetic metaphor openly invites you to view a topic or a target from a new angle by setting it against or alongside a light source; in this way, it prompts second looks and encourages insights. Propositional metaphor, by comparison, appears designed to persuade you to view the target or the topic under discussion as something you already know about because of your experience with the source. As a result, you are better able to understand or to “handle” the topic, but you discover little that is new. The essay was presented as part of a panel discussion on Law and Language at the 2012 conference of the International Society for the Study of European Ideas.

Download the paper from SSRN at the link. 

Obama's Campaign Rhetoric

K. C. Morrison, Timothy Fair, and Aaron Rollins, all of Mississippi State University, have published Expanding the Myth of the American Republic: The Campaign Rhetoric of Barack Obama as an NCOBPS 43rd Meeting Paper. Here is the abstract.

This research is based on the analysis of presidential campaign speeches of Barack Obama to understand how he used rhetoric to create favorable opinion in a majority white voting constituency. Our argument is that Obama used rhetoric in a way that appropriated patriotic and multicultural elements associated with the American republic to redefine the myth of national identity. Speeches are analyzed in a variety of settings from which we are able to generate a set of clear and recurring patterns that compose a refashioned mythology.

The full text is not available from SSRN. 

Women's Speech

Eileen Hunt Botting, University of Notre Dame, is publishing Ascending the Rostrum: Hannah Mather Crocker and Women's Political Oratory in the Journal of Politics. Here is the abstract.

Although Hannah Mather Crocker (1752-1829) apparently presented a prescription against women's political oratory in her Observations on the Real Rights of Women (1818), she provided philosophical and historical challenges to this conventional rule of early nineteenth-century feminine propriety elsewhere in the first American treatise on women's rights. By analyzing new archival findings of two of her oratorical works from the early 1810s — her 1813 "Fast Sermon" against the War of 1812 and her 1814 "Address" to the advisory board of the School of Industry for poor girls in Boston's North End — I argue that Crocker also provided a personal challenge to this conventional rule. In philosophically, historically, and personally redefining women's political oratory as compatible with feminine propriety — during the post-revolutionary backlash against women's rights — Crocker helped pave the way for the strategic use of the constitutional rights of speech and association in the nineteenth-century American women's rights movement and beyond.

The full text is not available from SSRN. 

Musical Rhetoric in Legal Language

Ian Gallacher, Syracuse University College of Law, has published The Count's Dilemma, or, Harmony and Dissonance in Legal Language in Legal Communication & Rhetoric, no. 9 (2012). Here is the abstract.

Lawyers have had a long, but ambivalent, relationship with metaphor. Viewed by some as a mere literary device, a trick of language that "adds little of substance to an argument," metaphor is seen by others as an essential component of legal language, a rhetorical device inseparable from thought. On one thing, though, all can agree: lawyers only have words to express their thoughts, so they have an obligation to use words, whether used metaphorically or not, as exactly as possible. 

This article offers a critique of the way lawyers meet this obligation when they use metaphors based in musical language. In particular, the article examines the ways in which the musical term "harmony" is used as a metaphor to explain the nature of the relationship between disparate elements of the law and concludes that the metaphor fails to convey its intended meaning. In order to reach this conclusion, the article explores the meaning of "harmony" in music and then shows how the musical and assumed legal usages diverge, making "harmony" an inexact metaphor for lawyers to use. Although recognizing that "harmony" will likely continue to be used, the article proposes "tonality" as a better, more precise, alternative musical term for lawyers to use.

Download the article from SSRN at the link.

New International Law and Language Journal

A new online journal, the International Journal of Law, Language, & Discourse, and accompanying website, have launched here.

Here's the mission statement.

The International Journal of Law, Language & Discourse is published quarterly and presents articles related to legal issues, review of cases, comments and opinions on legal cases.

The International Journal of Law, Language & Discourse is a scholarly publication that examines a wide field of international legal issues. The Journal serves as both a practical resource for lawyers, judges, and legislators and those academics who teach the future legal generations. The Journal combines academic areas of law, discourse analysis, English linguistic analysis, combined with psycho-legal-linguistics.

Assault Of the Zombie Verbs and Vampire Nouns

After taking emeritus status at Cooley Law School, Norman Otto Stockmeyer has apparently taken up the cudgels. He's proposing the killing off of those nouns-turned-verbs ("Let's dialogue") and those verbs-turned-nouns ("A wonderful dine") before they attack us all. I'm down with that. More here, in "Zombie Verbs and Vampire Nouns," in the spring issue of The Scrivener. Could invented phrases ("Play a factor") be his next target?

Rhetoric and Legal Forms

Kirsten K. Davis, Stetson University College of Law, has published Legal Forms As Rhetorical Transaction: Competency in the Context of Information and Efficiency in volume 79 of the University of Missouri (Kansas City) Law Review (Spring 2011). Here is the abstract.

The increased production of legal forms by commercial publishers, the electronic availability of lawyer-produced documents through subscription-based and free Internet sites, and the increasing number of institutionally approved forms is creating a paradoxical and challenging environment for principled form use by lawyers. On one hand, courts, legislatures, and administrative agencies, for example, encourage, and even require, the use of forms in the practice of law. Commercial publishers tout the benefits of form use to sell legal formbooks and to entice lawyers to access subscription databases filled with contracts, pleadings, briefs, and motions. On the other hand, the same entities that encourage form use in some circumstances sternly admonish lawyers for using or relying on forms in others.



As the time constraints on lawyers become greater, legal practice becomes more global and multi-jurisdictional, and information increases exponentially and becomes more difficult to manage, lawyers, particularly lawyers new to practice or new to a particular practice area need to develop a principled approach to legal form use to ensure forms are used competently.



This article explores legal forms and proposes a rhetorical approach to understanding and using forms. This approach is unique because it uses rhetorical theory to define and categorize legal forms, and it offers specific suggestions for competent legal form use based on rhetorical theory.

Download the article from SSRN at the link.

Using Trials As Teaching Materials

Rupert Macey-Dare, St. Cross College, Oxford, has published True Crime - Guilty or Not Guilty - David Bain. Here is the abstract.

This paper is a cut down version of Advocacy Masterclass – Retrial of David Bain, but with detailed analysis and answers removed. This shorter paper is designed for use in classroom teaching and examination of real courtroom advocacy, e.g. with students watching and discussing the video links and stepping in to read out trial transcripts and re-enact examples whenever necessary.



Early on the morning of Monday 20 June 1994, five members of the Bain family: Robin (58), Margaret (5'7 and their teenage children Arawa (19), Laniet (18) and Stephen (14) were slaughtered in the family home at 65 Every St, Dunedin, New Zealand. There was one survivor, the eldest son, David Bain (22), a student of music and classics at Otago University, who reported the scene of carnage after his morning paper round. Next year, on 29 May 1995, David Bain was himself convicted on all five counts of murder and sentenced to life imprisonment, without parole for the first 16 years.



Fourteen years later, on 6 March 2009, and after two references from the New Zealand Governor General, three hearings by the New Zealand Court of Appeal and a final, quashing review by the Privy Council, the stage was set for one of most notorious criminal cases in New Zealand and Commonwealth history, the retrial of David Bain.



How did the two sides fight this case? Who won the advocacy battle and what techniques, explicit and implicit, did they use? What was the verdict, indeed, what could or should it have been?

Download the text from SSRN at the link.

A jury initially convicted David Bain of the murders of his family in Dunedin, New Zealand, in 1995. He was retried and acquitted in 2009.

James Madison's Legal Writing

Thomas Berg, Julie A. Oseid, and Joseph A. Orrino, all of the University of St. Thomas, St. Paul/Minneapolis School of Law, have published  The Power of Rigor: James Madison as a Persuasive Writer as University of St. Thomas Legal Studies Research Paper No. 11-16.

This article is the third in a planned series of articles about the writing qualities and habits of our most eloquent American Presidents. The focus of all the articles is on the lessons modern legal writers can learn from the Presidents. James Madison’s rigor, in both his approach to problems and in his resulting written work, was famous; it was this rigor that contributed to the persuasiveness of his writing. Even though he was not a lawyer, Madison had all the best writing habits that lawyers should emulate – attention to audience, careful preparation, and attention to consequences.

Download the paper from SSRN at the link.


Madison’s rigor, in both his approach to problems and in his resulting written work, was famous; it was this rigor that contributed to the persuasiveness of his writing. “The great little Madison” may have lacked physical presence and personal charisma, but he overcame those limitations to become one of the most influential public figures in American history by cultivating his particular strengths. He had an analytical mind that he developed to see and clearly express arguments, counterarguments, and distinctions. He had, despite poor health, an appetite for work that he used to out-prepare others. And he had a sensitivity to surrounding circumstances that he cultivated to address his audience’s concerns and to envision the practical consequences of various actions.



The article considers why rigor is an essential writing quality, reviews Madison’s life and writing habits, and analyzes three examples of Madison’s writings (The Memorial and Remonstrance, Federalist No. 10, and a letter from Madison to Thomas Jefferson).

Plain Speaking Outside the Courtroom

Jason Cohen, Rutgers School of Law (Camden), has published Attorneys at the Podium: A Plain Language Approach to Using the Rhetorical Situation in Public Speaking Outside the Courtroom, at 8 Legal Communication &Rhetoric 73 (2011). Here is the abstract.

The general public typically has the unrealistic expectation that all lawyers are effective and persuasive public speakers who, when called upon, have the innate ability to say “just the right thing.” In fact, not all of us have that innate ability. And even though we may have some level of legal genius swirling around in our minds, that genius is sometimes poorly communicated in speeches that ultimately don’t meet audience expectations or needs. Certainly, law school has taught us how to think and write like lawyers, but the ability to effectively communicate orally isn’t as frequently emphasized. This lack of emphasis on effective public speaking is unfortunate because lawyers are frequently forced to engage in some public speaking outside the courtroom, including speaking to lay groups about various matters of legal controversy; making appearances before legislatures, city councils and municipal boards; presenting at bar association luncheons; making client pitches; or participating in media interviews on behalf of clients. All of these occasions require the attorney-speaker to organize content, consider the audience, and deliver the most effective message possible.



Understanding the rhetorical situation - a theoretical concept with huge practical implications - before crafting the response helps the speaker meet these crucial components to effective speaking. Rather than focus merely on the mechanics of speech delivery or the flourishes of theatrical speaking, the speaker should first identify the rhetorical situation, which will force the speaker to concentrate on specific content for the speech.



The good news for those attorneys who want to become more successful public speakers is that if they understand the rhetorical situation, they will be better able to meet audience expectations. This is true because their analysis of the situation gives the attorney-speaker the tools to understand the environmental context of the speech (what is happening in the world outside the speech) and the audiences affected by this context. Together, these understandings ultimately permit the speaker to craft a speech that can aid, persuade, or satisfy those affected.



This short article first introduces the theoretical definition of the rhetorical situation. Translating the theory into plain language, it then offers a checklist for the attorney in preparing for any speaking scenario. These steps embody the rhetorical-situation analysis. Finally, the article illustrates the recommended approach by guiding the reader through an analysis of the rhetorical situation surrounding President Reagan’s Challenger speech.

Download the article from SSRN at the link.

The Persistence of Culture: The Case of Anti-Semitism in German Communities From the Medieval Period to the 1930s

Nico Voigtländer, University of California, Los Angeles, School of Management, & National Bureau of Economic Research, and Hans-Joachim Voth, Universitat Pompeu Fabra, Faculty of Economic and Business Sciences, and Centre for Economic Policy Research (CEPR) have published Persecution Perpetuated: The Medieval Origins of Anti-Semitic Violence in Nazi Germany. Here is the abstract.

How persistent are cultural traits? This paper uses data on anti-Semitism in Germany and finds continuity at the local level over more than half a millennium. When the Black Death hit Europe in 1348-50, killing between one third and one half of the population, its cause was unknown. Many contemporaries blamed the Jews. Cities all over Germany witnessed mass killings of their Jewish population. At the same time, numerous Jewish communities were spared these horrors. We use plague pogroms as an indicator for medieval anti-Semitism. Pogroms during the Black Death are a strong and robust predictor of violence against Jews in the 1920s, and of votes for the Nazi Party. In addition, cities that saw medieval anti-Semitic violence also had higher deportation rates for Jews after 1933, were more likely to see synagogues damaged or destroyed in the Night of Broken Glass in 1938, and their inhabitants wrote more anti-Jewish letters to the editor of the Nazi newspaper Der Stürmer.

Download the paper from SSRN at the link.