The Fundamental Inquiry of Non-Coercive Measures on Hate Speech (2): Drawing on the Corey Brettschneider’s Value Democracy and Democratic Persuasion.

The legal situation regarding hate speech regulation in Japan is currently at a turning point, owing to the introduction of a law and ordinance to restrict hate speech, the first of its kind in Japan. The legislation assumes the “cautious approach of regulation”, deemed a majority theory in the scholarly debate on hate speech regulation. Following such a cautious approach, legal regulation of hate speech (in particular, criminal sanctions) has limited effectiveness. It has been suggested that in dealing with hate speech in Japan, in addition to the regulation of expression, it would be of value to inquire into various measures including education. Furthermore, this awareness of the issue is shared by others[KS1]. I consider that such a statement assumes non-regulative or non-legal measures (in particular, education and enlightenment). However, there is no evidence of a fundamental inquiry of such measures on hate speech. Therefore, I aim to investigate non-regulative or non-legal measures on hate speech. I focus on Corey Brettschneider’s argument for “Value Democracy” and “Democratic Persuasion”, drawing on the doctrine of government speech. To begin with, Brettschneider distinguishes between a state’s coercive capacity and its expressive capacity. He then insists that “the state should simultaneously protect hateful viewpoints in its coercive capacity and criticize them in its expressive capacity”. A theoretical background of this insistence is “Value Democracy,” which “bases democracy on the affirmative values of free and equal citizenship.” Under “Value Democracy,” the state’s measures of intervention by its expressive capacity fall under “Democratic Persuasion,” defined as “the process of defending the values of free and equal citizenship.” There is considerable criticism and discussion of Brettschneider’s argument; therefore, introducing and commenting further on his argument, I aim to promote discussion on hate speech regulation in Japan

The Fundamental Inquiry into Non-Coercive Measures on Hate Speech : Drawing on Corey Brettschneider’s Value Democracy and Democratic Persuasion

The legal situation regarding hate speech regulation in Japan is currently at a turning point, owing to the introduction of a law and ordinance to restrict hate speech, the first of its kind in Japan. The legislation assumes the “cautious approach of regulation”, deemed a majority theory in the scholarly debate on hate speech regulation. Following such a cautious approach, legal regulation of hate speech (in particular, criminal sanctions) has limited effectiveness. It has been suggested that in dealing with hate speech in Japan, in addition to the regulation of expression, it would be of value to inquire into various measures including education. Furthermore, this awareness of the issue is shared by others [KS1]. I consider that such a statement assumes non-regulative or non-legal measures (in particular, education and enlightenment). However, there is no evidence of a fundamental inquiry of such measures on hate speech. Therefore, I aim to investigate non-regulative or non-legal measures on hate speech. I focus on Corey Brettschneider’s argument for “Value Democracy” and “Democratic Persuasion”, drawing on the doctrine of government speech. To begin with, Brettschneider distinguishes between a state’s coercive capacity and its expressive capacity. He then insists that “the state should simultaneously protect hateful viewpoints in its coercive capacity and criticize them in its expressive capacity”. A theoretical background of this insistence is “Value Democracy,” which “bases democracy on the affirmative values of free and equal citizenship.” Under “Value Democracy,” the state’s measures of intervention by its expressive capacity fall under “Democratic Persuasion,” defined as “the process of defending the values of free and equal citizenship.” There is considerable criticism and discussion of Brettschneider’s argument; therefore, introducing and commenting further on his argument, I aim to promote discussion on hate speech regulation in Japan. In the first volume of this serial article, in preparation for the latter volume, I explain Brettschneider’s awareness of the issue and the fundamental standpoint of his argument

The Importance and Trickiness of Definitional Strategies in Legal and Political Argumentation

This paper uses argumentation tools to show by means of analyzing nine cases from law and politics how argument strategies using persuasive definitions and quasi-definitions are powerful rhetorical tools of persuasion. By bringing to light the argumentation structure found in these examples, it is shown that definitions and redefinitions can have serious legal and political implications. Persuasive definitions and quasi-definitions are modeled as two distinct strategies for altering the relationship between classification and evaluation of a state of affairs. Persuasive definitions are aimed at modifying the relationship between the definiendum and its referent. In quasi-definitions some characteristics of an entity or event leading to a specific value judgment are selected and made accessible, while other conflicting ones are excluded. Reframing an issue is shown to be related to both strategies

The Arts of Persuasion in Science and Law: Conflicting Norms in the Courtroom

Epistemology is important in the debate about science and technology in the courtroom. The epistemological issues and the arguments about them in the context of scientific and technical evidence are now well developed. Of equal importance, though, is an understanding of norms of persuasion and how those norms may differ across disciplines and groups. Norms of persuasion in the courtroom and in legal briefs differ from norms at a scientific conference and in scientific journals. Here, Kritzer examines the disconnect between science and the courtroom in terms of the differing norms of persuasion found within the scientific community and within the legal community

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

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

Foreword Symposium: Fourth Annual Mid-Atlantic People ofColor Legal Scholarship Conference: Law and Literature: Examining the Limited Legal Imagination in the Traditional Legal Canon

The Fourth Annual Mid-Atlantic People of Color Legal Scholarship Conference, which took place at Rutgers Law School in Camden on February 12-14, 1998, poignantly captured the theme around which the conference was organized. The theme of the conference was Law and Literature: Examining the Limited Legal Imagination in the Traditional Legal Canon. True to the theme of the conference, many presenters sought to expand our collective imagination through poetry, fiction, and narrative. The presentations were intellectually stimulating and provocative. Indeed, there was a literary quality to some of the presentations. Perhaps most importantly, the conference itself, in the tradition of the Regional People of Color conferences, provided us with the necessary sustenance that can only be found in a community of scholars united by a particular undertaking. The dual focus of our undertaking is reflected in both the title of the conference and the papers included in this issue of the Journal. First, conference participants were concerned about the limited legal imagination reflected in the traditional legal canon. Of particular focus was the question of which voices, perspectives, and experiences have become central to the canon, and which are marginalized. Second, participants focused on law and literature, invoking literary fiction and poetry to explore the justice of legal rules and legal decisionmaking. Many scholars at the conference persuasively made the case that literature, and literary techniques (like narrative), can broaden the scope of legal discourse by bringing voices and perspectives which might otherwise go unrecognized, unheard, or unappreciated

Chief Justice Robots

Say an AI program someday passes a Turing test, because it can con-verse in a way indistinguishable from a human. And say that its develop-ers can then teach it to converse—and even present an extended persua-sive argument—in a way indistinguishable from the sort of human we call a “lawyer.” The program could thus become an AI brief-writer, ca-pable of regularly winning brief-writing competitions against human lawyers. Once that happens (if it ever happens), this Essay argues, the same technology can be used to create AI judges, judges that we should accept as no less reliable (and more cost-effective) than human judges. If the software can create persuasive opinions, capable of regularly winning opinion-writing competitions against human judges—and if it can be adequately protected against hacking and similar attacks—we should in principle accept it as a judge, even if the opinions do not stem from human judgment