Feminist Reflections on the 'End' of the War on Terror

This article examines the range of arguments articulated to justify the use of force under the ‘War on Terror’. The three key justifications for unilateral force directed against terrorist actors, pre-emptive force, implied authorisation and the use of force to prevent terrorist actors operating from failed states, are demonstrated as analogous to domestic provocation excuses. As such, the article argues the ‘end’ of the ‘War on Terror’ has been in name only as the Obama Administration in the United States continues to develop practice in line with that of its predecessor. The analogy with domestic provocation excuses demonstrates weaknesses of contemporary US practice and of the pre-emptive force justification. Using a feminist understanding of the limitations of provocation defences and of the relationship between social, cultural, political and legal norms, the legacy of the ‘War on Terror’ is demonstrated as an assertion of a limited model of security that ignores the role militaries play in women’s insecurity and which limits women’s participation through the use of sexual stereotypes. The article concludes with a discussion of the range of feminist strategies that might be invoked to challenge the legacy of the ‘War on Terror’

A Call To Combine Rhetorical Theory and Practice in the Legal Writing Classroom

The theory and practice of law have been separated in legal education to their detriment since the turn of the twentieth century. As history teaches us and even the 2007 Carnegie Report perhaps suggests, teaching practice without theory is as inadequate as teaching theory without practice. Just as law students should learn how to draft a simple contract from taking Contracts, they should learn the theory of persuasion from taking a legal writing course. In an economy where law apprenticeship has reverted from employer to educator, legal writing courses should do more than teach analysis, conventional documents, and the social context in which lawyers write. The legal writing professor\u27s task is to impart to her students the intellectual ballast necessary to navigate complex analytical challenges in the workplace. By combining rhetorical theory and practice in the legal writing classroom, the professor can pique students\u27 interest, hasten their learning, and help them develop transferable skills better than teaching by imitation alone. In addition, teaching the rhetorical nature of law in a legal writing course helps students debunk sooner the myth of black letter law in their doctrinal courses. Finally, as the Carnegie Report indicates, a more holistic approach to teaching can best blend the analytical and practical habits of mind that professional practice demands.... This Article begins with a brief history of the separation of theory and practice in the law classroom and the impact that it has had on the quality and reputation of writing as its own subject. The Article argues that despite a wave of pedagogical advances, legal writing as its own subject has ample room to grow. For legal writing courses to achieve intellectual maturity, they must incorporate rhetorical theory. To ignore it is to confirm Plato\u27s suspicion that rhetoric is a discipline without a subject matter and to enable the insidious undervaluing of our profession. As detailed below, there are several advantages to teaching legal writing as rhetoric. Although not the focus of this Article, a corollary advantage may be to help legal writing faculty achieve academic equality, which benefits teacher and student alike. For a variety of reasons, this Article concludes that legal writing professors are responsible for teaching both practical skills as well as the theories that inform them

Aristotle’s Tried and True Recipe for Argument Casserole

I thoroughly enjoyed John Schunk’s article— “What Can Legal Writing Students Learn from Watching Emeril Live?”—in the Winter 2006 issue. We are big Emeril fans in our family, and we too have heard him distinguish the art of baking casseroles from the art of baking cakes. Baking a casserole is more art than science, because although there are basic ingredients, a creative cook can vary the recipe to please a variety of palettes. Baking a cake, on the other hand, is more science than art, because if the cook eliminates a necessary egg or adds too much baking powder, the cake could fail. That legal writing is a casserole and not cake is an apt metaphor. In his article, Professor Schunk has captured the palpable tension our first-year students feel between wanting to be creative, and at the same time, wanting to do it the “right” way. As Schunk notes, in their quest for concrete knowledge, first-year law students often latch onto the idea that legal writing is a cake, and all they need to do is memorize and follow the recipe

Beyond Analogy: Perez v. Sharp, Antimiscegenation Law, and the Fight for Same-Sex Marriage

Conversations about the constitutionality of prohibitions on marriage for same-sex couples invariably reduce to the question of whether a meaningful analogy can be drawn between restrictions on same-sex marriage and antimiscegenation laws. In an effort to refocus this debate, this article considers the California Supreme Court\u27s 1948 decision in Perez v. Sharp and its use by advocates in recent litigation to secure marriage rights for gay and lesbian couples. Opponents of marriage rights for members of the LGBT *840 community frequently assert that dispatching Perez in these cases distorts the meaning of that decision and other similar precedents by drawing a false analogy between bans on interracial and same-sex marriage. Professor Lenhardt argues that, instead, Perez\u27s appearance in recent cases helps to clarify the nature of the marriage rights at stake in Loving v. Virginia. She also contends that the strategic use of Perez serves to underscore the extent to which state antimiscegenation laws established not only racial, but also gender-based identity norms. Finally, Professor Lenhardt asserts that Perez\u27s use in recent marriage cases offers a way out of the “analogy” debate, focusing discussion on the nature and substantive effect of race and gender bars on marriage, rather than on a comparison of the groups seeking judicial redress for such restrictions. Professor Lenhardt concludes that a deeper appreciation of the extent to which state-imposed obstacles to marriage have operated to police identity, restrict opportunities for self-definition, and impede belonging can elucidate the true implications and citizenship effects of prohibitions on marriage for same-sex couples

After the Great Recession: Law and Economics\u27 Topics of Invention and Arrangement and Tropes of Style

AFTER THE GREAT RECESSION: LAW AND ECONOMICS’ TOPICS OF INVENTION AND ARRANGEMENT AND TROPES OF STYLE by Michael D. Murray Abstract The Great Recession of 2008 and onward has drawn attention to the American economic and financial system, and has cast a critical spotlight on the theories, policies, and assumptions of the modern, neoclassical school of law and economics—often labeled the Chicago School —because this school of legal economic thought has had great influence on the American economy and financial system. The Chicago School\u27s positions on deregulation and the limitation or elimination of oversight and government restraints on stock markets, derivative markets, and other financial practices are the result of decades of neoclassical economic assumptions regarding the efficiency of unregulated markets, the near-religious-like devotion to a hyper-simplified conception of rationality and self-interest with regard to the persons and institutions participating in the financial system, and a conception of laws and government policies as incentives and costs in a manner that excludes the actual conditions and complications of reality. This Article joins the critical conversation on the Great Recession and the role of law and economics in this crisis by examining neoclassical and contemporary law and economics from the perspective of legal rhetoric. Law and economics has developed into a school of contemporary legal rhetoric that provides topics of invention and arrangement and tropes of style to test and improve general legal discourse in areas beyond the economic analysis of law. The rhetorical canons of law and economics—mathematical and scientific methods of analysis and demonstration; the characterization of legal phenomena as incentives and costs; the rhetorical economic concept of efficiency; and rational choice theory as corrected by modern behavioral social sciences, cognitive studies, and brain science—make law and economics a persuasive method of legal analysis and a powerful school of contemporary legal rhetoric, if used in the right hands. My Article is the first to examine the prescriptive implications of the rhetoric of law and economics for general legal discourse as opposed to examining the benefits and limitations of the economic analysis of law itself. This Article advances the conversation in two areas: first, as to the study and understanding of the persuasiveness of law and economics, particularly because that persuasiveness has played a role in influencing American economic and financial policy leading up to the Great Recession; and second, as to the study and understanding of the use of economic topics of invention and arrangement and tropes of style in general legal discourse when evaluated in comparison to the other schools of classical and contemporary legal rhetoric. I examine each of the rhetorical canons of law and economics and explain how each can be used to create meaning, inspire imagination, and improve the persuasiveness of legal discourse in every area of law. My conclusion is that the rhetorical canons of law and economics can be used to create meaning and inspire imagination in legal discourse beyond the economic analysis of law, but the canons are tools that only are as good as the user, and can be corrupted in ways that helped to bring about the current economic crisis

Cultural Environmentalism and Beyond

This article is part of a symposium issue entitled Cultural Environmentalism @ 10, occuring on the tenth anniversary of Prof. Boyle\u27s book, Shamans, Software, and Spleens. In this article Prof. Boyle offers his thoughts on the failings, limitations, occasional promise, and possible future of the ideas discussed in the symposium including both the work on cultural environmentalism and the surrounding ideas on authorship, the rhetoric of economic analysis, the structure of intellectual property scholarship, and the jurisprudence of the public domain

“Above all Greek, above all Roman Fame”: Classical Rhetoric in America during the Colonial and Early National Periods

The broad and profound influence of classical rhetoric in early America can be observed in both the academic study of that ancient discipline, and in the practical approaches to persuasion adopted by orators and writers in the colonial period, and during the early republic. Classical theoretical treatises on rhetoric enjoyed wide authority both in college curricula and in popular treatments of the art. Classical orators were imitated as models of republican virtue and oratorical style. Indeed, virtually every dimension of the political life of early Ameria bears the imprint of a classical conception of public discourse. This essay marks the various specific aspects of the reception and influence of the classical rhetorical tradition in the learning, speaking and writing of Americans in the eighteenth and early nineteenth centuries

IP Law and Antitrust Law Complementarity when Property Rights are Incomplete

This paper explores the interface between two important institutional pillars of market exchange – Intellectual Property (IP) law and Antitrust law – in light of a theory of property rights incompleteness. This theory interprets property as an incomplete bundle of both defined and undefined rights over actual and potential uses of given resources and defines externalities as joint claims over rival production uses of undefined entitlements, irrespective of whether the object of property rights has a tangible or intangible nature. The paper argues that traditional distinctions between physical property and IP based on attributes of tangibility, rivalry and excludability are misleading and bases on the substantial homogeneity of property rights and IPRs an argument supporting the complementarity between IP law and Antitrust law. Far from being an unjustified ex-post limitation to existing property rights, likely to undermine ex-ante incentives, Antitrust intervention represents one of the means by which incompletely specified property rights (both intellectual and tangible) might be redefined over time as externalities emerge.