Monday, February 27, 2006

Rhetorical Analysis Guidelines

Please let me know what legal artifacts (communication events, speech acts, texts) you will be using for your analyses.

Your five-minute speeches should briefly explain both the significance of your artifact and the model or theory you will be using. Then, simply explain the conclusions you've reached about that artifact using the theory or model. This is more a briefing than a detailed lecture; you have a limited amount of time, so you will have to do a lot of summarizing. But your ability to synthesize the ideas and demonstrate an understanding of how communication theories explain rhetorical events will be the main criteria for your grade.

Some basic quiestions you may want to ask can be found here. Your particular model or theory will help explain those questions.

Here are several good examp,es of rhetorical analysis--although yours, obviously has to be based on a legal artifact:

Sample outline:

Thesis: Johnnie Cochrane's defense summation in the O.J. Simpson trial, when analyzed through a model of anti-institutional "critical legal studies" discourse, played upon jurors' distrust of the system to encourage them to find reasonable doubt.

I. Background of the O.J. trial.
(give a very brief historical summary)
Main message: The rhetorical significance of the O.J. trial was that so many people thought it was an open and shut case. Presumably, it would take a solid persuasive event on behalf of the defense to score an aquittal.

II. Anti-institutional and critical legal discourse.
(explain critical legal theory and anti-institutional discourse)
Main message: Critical legal discourse places questions in the minds of its audience as to the fairness of the law as an institution. However, in order for this to work in the courtroom, advocates need to utilize concrete examples of the system's failure in a particular trial.

III. Cochrane's summation.
(detail ways in which Cochrane's summation reflects the various points of critical legal theory)
Main message: By emphasizing prosecutorial mishaps and the dishonesty of authority figures like cops, prosecutors, and lab analysts, Cochrane took advantage of the public's lack of confidence in these authorities.

IV. Conclusion: What else should we analyze about the O.J. trial? (give some suggestions)

Tuesday, February 21, 2006

Notes on Pierre Schlag and Normativity

Schlag's critique of the objectivity of law takes the form of a critique of "normativity." What is "normative legal thought?" It is when legal scholars, advocates and activists take a position on what the law ought to be, how it should be interpreted, etc.

One of the main problems with normative legal thought, according to Schlag, is that normative thinking is NAIVE. Advocates are unaware, or at least seem to be unaware, of how power works, whose hands are on the real levers of power, who essentially "owns" the law. Because of this, legal scholars, advocates, and activists constantly say "this should be done," "there ought to be a law that says this," "the law should be interpreted in this way..." In a larger sense, they say "we need more justice..." etc. They become SELF-SATISFIED with their rhetoric about the way things ought to be, and this self-satisfaction obscures the real reasons things are the way they are--such as the way in which corporate and capitalist interests control the political and legal process, the way in which implicit and entrenched racism, sexism, classism, etc., overwhelms the supposed solvency of normative legal advocacy.

Schlag's "Clerks in the Maze" examines the way in which law seeks to preserve itself through its own authority. These methods of self-preservation are essentially rhetorical, and thus, Schlag's criticism serves as a model for rhetorical criticism we can use in this class. For Schlag, much legal discourse is a denial of the inherently violent nature of the law. Recall that last week we discussed how the law is predicated upon the ability of the state to do violence. Schlag even suggests this violence goes even deeper than the coercive power of the state. "Judges," he writes, "must destroy the worlds of meaning that others have created." Because the law is essentially coercive, and often arbitrary and laden with unacknowledged power hierarchies, part of the purpose of legal rhetoric is "making the law feel really good" about itself.

Schlag outlines two legitimizing rhetorical strategies, both of which can serve as models of rhetorical criticism. First, "Constrain and Control." This strategy paints PARTS of the law, such as some parts of the judiciary, as violent and potentially out of control. It holds up models of "judicial restraint" as a remedy for this. It idealizes procedural regularity, consistency, etc. In doing so, it not only stifles creativity, but also covers up the violence found in that very consistency and regularity. One good application of this criticism to legal discourse would be a critique of various judicial opinions concerning Native Americans: the Plenary Power doctrine, Indian citizenship, etc.

Second, "Justify and Redeem." This is where you find legal arguments emphasizing goodness and rightness. It is especially found in advocacy and decisions that purport to solve for, bring redemption for, past injustices. It is manifest in the law's "grand demonstrations of profound moral concern." It is also often accompanied by what Schlag calls "hand-wringing," the assumption that redemption is found merely in FEELING BAD about past injustices. One could apply this critical model to a lot of legal advocacy about civil rights and other antidotes to systemic oppression.

Schlag's "Normative and Nowhere to Go" is a delightful and provocative article. Read the footnotes--they are hilarious. There's a lot at work in this article. I just want to emphasize Schlag's ridicule of the normative mindset that we ought to always be "doing something." He says that the question "What should we do" is "an interruption posing as an origin." I'd like to hear what others in the class think this quote means before I explain my understanding of it in class on Thursday.

Schlag's conclusion in this article is that when law professors train law students to fight for good things--justice, equality, etc.--without paying attention to how institutional (and perhaps non-institutional) power works in society, these professors are essentially training their students to be "Atticus Finch" in a world where Finch is unreal and impossible. Atticus Finch, of course, is the famous main character in Harper Lee's To Kill a Mockingbird, a morally upright, progressive hero surrounded by evil and ignorant men.

Schlag says that the law is not Atticus Finch, but rather a glorified version of the insurance industry. Insurance adjusters might have some cursory knowledge of philosophical and moral ideals (eg, "responsibility") but they really can't change the way the insurance industry works, nor do they really want to. The machinery keeps running the same way it always does, because those who truly control that machinery don't want it to work any other way. At best, the most idealistic practitioners in the machine merely make the machine look good, rather than affecting any genuine reforms. Schlag writes:
For our students, this role-confusion is unlikely to be very funny. It will get even less so upon their graduation--when they learn that Atticus Finch has been written out of the script. For us, of course, it is a pleasant fantasy to think we are teaching Atticus Finch. When the fantasy is over, it becomes one hell of a category mistake. And in the rude transition from the one to the other, Atticus Finch can quickly turn into Dan Quayle. In fact, if you train your students to become Atticus Finch, they will likely end up as Dan Quayle-- cognitively defenseless against the regimenting and monitoring practices of bureaucratic institutions. Atticus Finch, as admirable as he may be, has none of the cognitive or critical resources necessary to understand the duplicities of the bureaucratic networks within which we operate. Apart from the fantasies of the legal academy, there is no longer a place in America for a lawyer like Atticus Finch. There is nothing for him to do here--nothing he can do. He is a moral character in a world where the role of moral thought has become at best highly ambivalent, a normative thinker in a world where normative legal thought is already largely the bureaucratic logic of institutions.

Certainly a bleak picture, but one we must consider in our quest to understand, criticize, defend, and even deconstruct the themes of legal rhetoric.

Monday, February 20, 2006

Schedule Change: Response Paper 3 NOT Due This Week!

Hey everybody: No response paper is due this week. I've decided to reschedule that response paper for later. In the meantime, catch up on all the reading we have to do! I'll post some notes on the CLS literature tommorrow. In the meantime, enjoy the readings.

Thursday, February 16, 2006

Kafka and Legal Indeterminacy

As a fascinating supplement to the debate over the "objectivity" of law that we'll begin this week, I have assembled some stuff by and about the author Fraz Kafka. Kafka's writing about the law expresses, in powerful fiction, much of what Pierre Schlag and other critical legal scholars express in their theoretical writings.

In stories like The Penal Colony, the Castle, and of course, The Trial, Kafka has characters trapped in a system of rules and laws they know very little about. Often, they don't even know what they've done to get them in trouble with the law, nor do they know exactly WHO is responsible for the laws and their enforcement. "The Law," for Kafka, is often a mysterious topoi, a place with unclear standards for admission, membership, innocence and guilt.

Within Kafka's famous legal novel, The Trial, there is another story, entitled "Before the Law."

BEFORE THE LAW stands a doorkeeper. To this doorkeeper there comes a man from the country and prays for admittance to the Law. But the doorkeeper says that he cannot grant admittance at the moment. The man thinks it over and then asks if he will be allowed in later. "It is possible," says the doorkeeper, "but not at the moment." Since the gate stands open, as usual, and the doorkeeper steps to one side, the man stoops to peer through the gateway into the interior. Observing that, the doorkeeper laughs and says: "If you are so drawn to it, 'just try to go in despite my veto. But take note: I am powerful. And I am only the least of the doorkeepers. From hall to hall there is one doorkeeper after another, each more powerful than the last. The third doorkeeper is already so terrible that even I cannot bear to look at him." These are difficulties the man from the country has not expected; the Law, he thinks, should surely be accessible at all times and to everyone, but as he now takes a closer look at the doorkeeper in his fur coat, with his big sharp nose and long, thin, black Tartar beard, he decides that it is better to wait until he gets permission to enter. The doorkeeper gives him a stool and lets him sit down at one side of the door. There he sits for days and years. He makes many attempts to be admitted, and wearies the doorkeeper by his importunity. The doorkeeper frequently has little interviews with him, asking him questions about his home and many other things, but the questions are put indifferently, as great lords put them, and always finish with the statement that he cannot be let in yet. The man, who has furnished himself with many things for his journey, sacrifices all he has, however valuable, to bribe the doorkeeper. The doorkeeper accepts everything, but always with the remark: "I am only taking it to keep you from thinking you have omitted anything." During these many years the man fixes his attention almost continuously on the doorkeeper. He forgets the other doorkeepers, and this first one seems to him the sole obstacle preventing access to the Law. He curses his bad luck, in his early years boldly and loudly; later, as he grows old, he only grumbles to himself. He becomes childish, and since in his yearlong contemplation of the doorkeeper he has come to know even the fleas in his fur collar, he begs the fleas as well to help him and to change the doorkeeper's mind. At length his eyesight begins to fail, and he does not know whether the world is really darker or whether his eyes are only deceiving him. Yet in his darkness he is now aware of a radiance that streams inextinguishably from the gateway of the Law. Now he has not very long to live. Before he dies, all his experiences in these long years gather themselves in his head to one point, a question he has not yet asked the doorkeeper. He waves him nearer, since he can no longer raise his stiffening body. The doorkeeper has to bend low toward him, for the difference in height between them has altered much to the man's disadvantage. "What do you want to know now?" asks the doorkeeper; "you are insatiable." "Everyone strives to reach the Law," says the man, "so how does it happen that for all these many years no one but myself has ever begged for admittance?" The doorkeeper recognizes that the man has reached his end, and, to let his failing senses catch the words, roars in his ear: "No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it."

I'd love to see some discussion about what you think this story means. Here are some quotes from legal scholars about how to interpret Kafka's work:

One scholar writes about how Kafka's characters stand in relation to the law:

Kafka's ambivalence about the law gets played out in his fiction, where the law vacillates between the sacred and profane. Most of Kafka's writings on the law - including the major novels The Trial and The Castle - are about victims
who seek the law as if it were a symbol of protection, order, and acceptance. Yet Kafka's characters never reach the law, instead shuffling between doorkeepers and administrators, always desperately hoping that justice will somehow be found, and in the end it usually turns out that the law is a disappointing mess of elusive rules endlessly administered by petty bureaucrats. In extreme stories such as "The Problem of Our Laws" (Glatzer, p. 437) and "The Refusal" (Glatzer, p. 263), the search for law turns up nothing but empty rhetoric, but the more prevalent theme in Kafka's fiction is that the law involves an exhausting process of endless delay, typified in the haunting parable " Before the Law" (Pasley, p. 148), where the protagonist dies while awaiting permission to enter the law.


Kafka's legal fiction is also distinguished by his refusal to provide a crusading protagonist who achieves justice by wielding the sword of the law to strike down oppression. Whereas popular novels like Harper Lee's To Kill a Mockingbird and John Grisham's A Time to Kill tell the story of an outsider who is unjustly accused of a crime and somehow manages to find an ally within the legal system, Kafka's outsiders never find a champion - instead, they internalize their subjugation to the point where they expect and even learn to enjoy having their claims denied. Kafka suggests a dark world where injustice not only remains unchallenged but is also actively experienced as normal. This sentiment is expressed brilliantly in the short story "The Refusal" (Glatzer, p. 263), where the townspeople breathe a sigh of relief when their demands are refused by the lowly official who governs the town. Such characters have only an inchoate and vague sense of their own exploitation, and they seem doomed by an inability to challenge the system in which they are caught up, a state of mind that Kafka illustrates in the final act of [*108] The Trial, where the central character leads his executioners to the place where he will be

[Douglas E. Litowitz, "Franz Kafka's Outsider Jurisprudence," Law and Social Inquiry, Winter, 2002]

Speaking specifically of the "Before the Law" parable, one scholar writes:

"Franz Kafka's many commentators disagree about the identity of the protagonist of "Before the Law," the extended parable that serves as THE TRIAL'S centerpiece. Is it (a) the man from the country; (b) the guardian at the door; or (c) Joseph K. himself, the "hero" of The Trial, who, according to some, serves as an unwitting and obtuse doppelganger of the man from the country (more on K. in a moment)? Although good cases have been made for a, b, c, or all three, in my view, the real protagonist of "Before the Law" is the Law itself.

To begin with, whatever (or whoever) the Law may be, it has undeniably mystical--even spiritual--trappings. The man from the country, we are told, "perceive[s] a radiance that streams immortally from the door of the Law" (214). More to the point, Joseph K. hears the parable not in a court of law but in a cathedral, and it is a priest, not a lawyer or a judge, who tells it to him. In the end, however, the supreme function of Law in "Before the Law" is to define and deconstruct the very human relationships between the man from the country, the doorkeeper, and ultimately Joseph K. The process is twofold.

The Law is master; the doorkeeper is servant. On the other hand, the doorkeeper also accepts bribes. And yet--Kafka's parables are anything but simple--he says, "I take this only to keep you from feeling that you have left something undone" (214). is he committing an unlawful act or not? When he gives the supplicant a stool, when he answers his questions, and finally when he announces that he will shut the door, is he acting under orders or of his own volition? These are open questions that Kafka chooses not to answer.

The same ambiguity surrounds the actions of the man from the country. His supreme goal in life is clearly to give himself over to the will of the Law, and yet he pursues this goal by making a series of free choices: he leaves home; he accepts the doorkeeper's stool; he interrogates the doorkeeper's fleas; he grows old before the gate. And in the end, the man from the country chooses not to be a gate crasher.

Mirrors both reflect and reverse. In like manner, the Law simultaneously makes of the doorkeeper and the man from the country doppelgangers and opposites (the doorkeeper appears to be immortal; the man from the country withers dismally with age and dies). This double function of Law is hidden from The Trial's uncomprehending Joseph K., who in fact plays the roles of both the man from the country and the doorkeeper. Like the man from the country, K. seeks admittance to the Law. But like the doorkeeper, he unwittingly denies himself admittance by stubbornly protesting his innocence. Interestingly, the twofold relationship between human law and the Law in The Trial parallels the relationship between the man from the country and the doorkeeper. As the mystical or metaphysical doppelganger of human law, the Law is also its opposite. Only by admitting his guilt can Joseph K. be "saved" by the Law. This is the novel's central irony.

[The Explicator, Fall 2002 v61 i1 p39(2): Kafka's The Trial. (Critical Essay) Steven Carter. Full Text: COPYRIGHT 2002 Heldref Publications]

This will be a fun unit. Enjoy the discussion.

Thursday, February 09, 2006

Beyond the Simple Equation of Legal Rhetoric with Deceit

Many of you, in your comments, have written about deceit as a common trope of legal rhetoric. You have tied this theme to a couple of other easily identifiable themes: rhetorical manipulation, and money/power. These are powerful themes that the public commonly recognizes. The sentiments concerning watching criminals "get off" on legal technicalities, seemingly manipulated by rhetorically-trained advocates, are bread-and-butter mass appeals.

Today in class we'll discuss the ways in which this common view of rhetoric as manipulation, and legal advocates as manipulators, may be short-sighted in comparison to a more nuanced view of the law as a collection of "topoi," and legal reasoning as a category of the first rhetorical canon, invention.

Meanwhile, since discussion of the O.J. Simpson trial seems to be the most frequently recurring example of "legal manipulation," I thought I'd drop some links to some alternative views of the Simpson case:

Here is a review of Dershowitz's book Reasonable Doubts.

An article about "playing the race card" in two famous trials--O.J. Simpson and Bernard Goetz.

Another article about the O.J. trial and race.

Many people (unfairly, in my opinion) blamed the outcome of the trial on the jury, and in particular implied that African-American jurors were to blame. Some interesting (and varying) points about that myth can be found here, here, and here.

And as Scott Shuchart writes in his otherwise unremarkable "Nine Myths about O.J.," the jury did not believe O.J. Simpson was innocent. They believed that the prosecution failed to prove him guilty:
Whatever message the jury may have wished to send...the verdict was about possible holes in the prosecution's evidence, not an assertion of innocence. Simpson may not have been proven guilty, but neither was he proven innocent.

Understanding this distinction may very well be the key to understanding the importance of the adversarial system of justice.

Saturday, February 04, 2006

New Response Paper Topics

Greetings and salutations. Your second response paper is due Thursday, February 9. Write on ONE of the two questions below. Your paper should reference one or more of the current unit's readings"

· "Rhetoric and its Denial in Legal Discourse"
· "A Night in the Topics"
· "Law and Music"

Here are your questions--remember, write on one or the other:

1. What does the law sound like?
2. In what ways is law a science? In what ways is law an art? Is it MORE like an art, or a science?

Have fun writing. As usual, I can look at drafts of your paper up to 24 hours before it is due!!!