The Law\u27s Mystery

What is the continuing significance of Cohen v. California, the 1971 U.S. Supreme Court decision holding that “Fuck the Draft” is a message protected by the First Amendment? Using Cohen as an exemplar, this article offers a new theory about how to understand the law and judicial opinions. The theory begins in a recognition of the “law” as resting upon mystery and uncertainty, a mystery that is also the source of the law’s enchantment. It is this enchantment that we depend upon for the law to be authoritative rather than authoritarian and reducible to the political and thus to power. In simple terms, the mystery of the law—its being beyond us in this way—constitutes its legitimate authority over us. The law that discloses itself to us does so through the openings that language provides. For our culture, judicial opinions are its primary way of doing this. Having introduced the theory, the article applies it, exploring whether it is possible to bring to the surface the tracings of a “great” judicial performance, using “great” in the sense of revealing an opening through which the law discloses itself. This section describes a reading of Cohen that aims to discover whether through the performance of the opinion, its author has uncovered something that is “of the essence” of our community. The article finally raises questions about what it would mean to legal education and law practice if judicial opinions were evaluated without destroying the law’s mystery. What would it mean if we thought of judges as preservers of this mystery? What would it mean if readers of opinions started thinking in terms of their own experience of the opinion rather than as critics of it? And what would it mean if lawyers saw their task as related to “truth”

Creating Kairos at the Supreme Court: Shelby County, Citizens United, Hobby Lobby, and the Judicial Construction of Right Moments

Kairos is an ancient rhetorical concept that was long neglected by rhetorical scholars, and its significance to legal argument and persuasion has been little discussed. Through their use of two words for time, chronos and kairos, the Greeks were able to view history as a grid of connected events spread across a landscape punctuated by hills and valleys. In chronos, the timekeeper-observer constructs a linear, measurable, quantitative accounting of what happened. In kairos, the participant-teller forms a more qualitative history by shaping individual moments into crises and turning points. From a rhetorical perspective, chronos is more closely allied with the narrative accounting for—how long? what next?—while kairos is the more metaphorical imagining as—at what point? in what space? I begin with a brief overview of kairos. Suggesting that it represents a quintessential judicial use of kairos, I next examine Justice Holmes’s dissent in Frank v. Mangum, the Supreme Court decision denying habeas relief to a Jewish factory manager later hanged by a mob in Georgia. Then I discuss the crucial lessons in kairos that can be drawn from pairing that dissent with Justice Holmes’s opinion for the Court in a seemingly indistinguishable case ten years later. I next consider recent examples of kairos: first as “the most opportune time” in an opinion by Chief Justice Roberts marking a turning point in the life of the Voting Rights Act, and then as “the essential moment” in an opinion by Justice Alito expanding the reach of the Religious Freedom Restoration Act. The conclusion synthesizes these themes, addressing some advantages and limitations of kairos as rhetorical method

When Less is More: An Ideological Rhetorical Analysis of Selected ABA Standards on Curricula and Faculty

This chapter undertakes an ideological rhetorical analysis of several key provisions of Chapters 3 and 4 of the American Bar Association’s Standards for Approval of Law Schools, specifically, the interrelated provisions that regulate the curriculum and specify the required conditions of employment for the faculty of a law school. The analysis of selected ABA Standards regulating curricula and faculty supports rhetorical analyst Sonja Foss’s conclusion that the “dominant ideology controls what participants see as natural or obvious by establishing the norm. . . . [and] provides a sense that things are the way they have to be as it asserts that its meanings are the real, natural ones.” Like feminist and other critical theories, ideological rhetorical criticism aims to uncouple connections and uncover embedded structures of authority. This is accomplished by examining what we assume to be or implicitly accept as necessary connections between and among the rhetorical elements and various systems and networks of beliefs. Equally important, by illustrating how ideological commitments shape our ability to listen to and respond to others, the rhetorical critic hopes to foster more productive conversations about the future

Studying and Teaching “Law as Rhetoric”: A Place to Stand

This article proposes that law students may find a better fit within the legal culture of argument if they are introduced to rhetorical alternatives to counter narrowly formalist and realist perspectives on how the law works and how judges decide cases. To support this proposal, the article describes and evaluates an upper-level elective course in Law & Rhetoric, which I have offered at two law schools since 2003. The article makes a two-part argument: first, introducing law students to rhetorical alternatives allows them to envision their role as lawyers as constructive, effective, and imaginative while grounded in law, language, and reason. Second, offering rhetorical alternatives allows law professors to enrich their own study and teaching and to develop a more nuanced understanding of the law school classroom as a rhetorical community. Set next to popular depictions of formalism and realism (which live on, despite much criticism), rhetorical alternatives would look at how the law works by exploring the meaning-making process through which the law is constituted as human beings located within particular historical and cultural communities write, read, argue about, and decide legal issues. Most students recognize the practical benefits of the course in Law & Rhetoric; they conclude that the course helps them become better rhetoricians because they are more aware and adept legal readers and writers, and they believe that better rhetoricians become better lawyers. I think this recognition that better rhetoricians become better lawyers carries with it something more profound: rhetorical alternatives recognize students’ power and ability to affect outcomes in their rhetorical communities, both now, while they are law students, and later, when they are practicing lawyers. From the rhetorical point of view, law students, law teachers, and lawyers are human actors whose work makes a difference because they are the readers, writers, and members of interpretive and compositional communities who constitute the law

Metaphor and Analogy: The Sun and Moon of Legal Persuasion

Drawing on recent studies of social cognition, decision making, and analogical processing, this article recommends that lawyers turn to novel characterizations and metaphors to solve a particular kind of persuasion problem that is created by the way judges and juries think and decide. According to social cognition researchers, we perceive and interpret new information by following a process of schematic cognition, analogizing the new data we encounter to the knowledge structures embedded in our memories. Decision-making researchers differentiate between intuitive and reflective processes (System 1 and System 2), and they agree that in System 1 decision making, only the most accessible knowledge structures are active and available for filtering and framing what we see. So the answer to how to think about this new information arrives automatically and intuitively. Should the answer be an unhelpful one, recent analogy research suggests that novel metaphors and characterizations may be used to prompt or activate various schemas or knowledge structures beyond those that are initially accessible. If initial matches can be made, the resulting online processing of the novel metaphor or characterization resembles the more reflective decision making of System 2, a desirable persuasive result when the immediately accessible schemas yield an unfavorable answer. The analysis and recommendations in the article rely on two key findings from cognitive researchers who have studied both analogy and metaphor: (1) metaphors follow a career path as they evolve from being new to becoming conventional, and (2) novel metaphors tend to be more capable of generating knowledge while conventional metaphors tend to provide categories into which new information is unthinkingly slotted. Transferred to legal persuasion, these findings support a persuasive method intuitively recognized by lawyers: by shifting the way decision makers perceive and interpret situations involving people and events, novel characterizations and metaphors are sometimes able to compete with entrenched stereotypes and conventional categories. Moreover, the research may provide guidance for lawyers working to craft the right kinds of characterizations and metaphors to meet specific goals

Alternative Conceptions of Legal Rhetoric: Open Hand, Closed Fist

An open-handed image of rhetoric presents an argument against the closed fist of logic and the “nasty, brutish, and short” depictions associated with legal rhetoric. In 1985, Robert Cover laid bare the field of pain and death where legal interpretation plays itself out in human consequences. Five years later, Gerald Wetlaufer described a landscape of brutal certainty as the backdrop for much of legal rhetoric. And the arena of criminal trials has long been recognizable as a bleak setting within which “[j]ustice determines blame and administers pain in a contest between the offender and the state . . .” My purpose in this chapter is to explore alternative conceptions of legal rhetoric. These alternatives oppose both the Aristotelian view of rhetoric as the “faculty of observing in any given case the available means of persuasion” and the closed system of legal rhetoric identified by Professor Wetlaufer. Within that system, Wetlaufer found a linked set of rhetorical commitments. These commitments included allegiance: “to a certain kind of toughmindedness and rigor, to relevance and orderliness in discourse, to objectivity, to clarity and logic, to binary judgment, and to the closure of controversies.” There were commitments as well “to hierarchy and authority, to the impersonal voice, and to the one right (or best) answer to questions and the one true (or best) meaning of texts.” All this led Wetlaufer to conclude that the dominant rhetoric of the law is “the rhetoric of foundations and logical deductions,” a rhetoric that “relies, above all else, upon the denial that it is rhetoric that is being done.

A Rhetorician’s Practical Wisdom

For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law\u27s Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal education. The curse persisted throughout the writing of The Law\u27s Mystery.For Jack, the essence of a life well lived within the law could be found in the phrase practical wisdom and for me, that phrase was the mystery. It\u27s not that there were no definitions: instead, they were too simple or too many, too diverse or too abstract. Where were the living stories of practical wisdom at work within the law? Where were the concrete images of the practically wise? I understood that practical wisdom grew out of practice and grew into action. But when I attempted to seize upon it for study and description, I chased an elusion. For this Symposium honoring Jack\u27s scholarship, I decided to see again if I could catch a glimpse

“Law &” Meets “Law as”

Prof. Berger reviews The Handbook of Law and Society, edited by Austin Sarat and Patrick Ewick