Critiquing Modern-Day U.S. Legal Education with Rhetoric: Frank\u27s Plea and the Scholar Model of the Law Professor Persona

This article explains how, from 1920 to 1960, the role, or persona, of the law professor in the United States remained the situs of considerable rhetorical controversy that the role had been in the fifty years before 1920. On one hand, lawyers used rhetoric to promote a persona, that of a scholar, appropriate for the law professor situated within the university, a context suitable for the professionalization of law. On the other hand, different lawyers like Judge Jerome Frank used rhetoric to critique, often in a scathing manner, the scholar persona and put forth their own persona, that of a practitioner, as a more appropriate model for legal education. To develop the argument, the article draws upon rhetorical theory and presents persona theory and persona analysis as a means of conducting this study. Next, the article considers the then-established persona of the law professor as scholar and in turn the alternative persona of the law professor as practitioner. For this study, the term lawyers refers to practicing lawyers and judges as well as academic lawyers. Given that, to this day, law paradoxically remains a program of academic study within the university that purports to prepare students for practical careers, the insights from the rhetorics between 1920 and 1960 remain important to understanding present-day legal education

Lifting the Pall of Orthodoxy: The Need for Hearing a Multitude of Tongues in and Beyond the Sexual Education Curricula at Public High Schools

When public high schools promote heterosexuality at the cost of denying sexual minority youth the opportunity to learn about minority sexualities, these schools contribute to the disastrous situation in which many sexual minority high school students find themselves. This approach, which many public high schools take, is unnecessarily destructive and warrants prompt change. Instead of helping to perpetuate many of the challenges that sexual minority students face in high school, public high schools can and need to help address these challenges. To establish the case for such a position, this article begins by presenting the plight of many sexual minority high school students. Next, the article offers the following suggestions on how public high schools can help sexual minority students deal with their sexualities: forming support groups for sexual minority youth, discussing a wide variety of sexual orientation perspectives when appropriate in classes, instituting diversity training for teachers, and implementing non-discrimination policies that address sexual orientation. In addition, the article demonstrates how the proposed approaches are constitutional under the First Amendment because they do not violate speech rights of public high schools or of students enrolled in such high schools. Finally, the article demonstrates that the proposed approaches are also constitutional under the Fourteenth Amendment because they do not violate the substantive due process liberty rights of the parents of public high school students, regardless of the sexual orientations of the students

A New Image in the Looking Glass: Faculty Mentoring, Invitational Rhetoric, and the Second-Class Status of Women in U.S. Academia

This article maintains that because Title VII alone does not have the ability to further the progress women have made in academic hiring, retention, and promotion, looking to remedies in addition to Title VII will be advantageous in helping to improve the status of women in U.S. academia. The article suggests as an additional remedy the implementation of faculty mentoring opportunities for junior female faculty members. A key way of initiating and furthering such mentoring opportunities is a type of discourse called invitational rhetoric, which is “an invitation to understanding as a means to create...relationship[s] rooted in equality, immanent value, and self-determination”. In presenting a case for such an approach, this article initially identifies the current problem by comparing women’s presence and their salaries in U.S. academia in the early 1970s with their presence and salaries in academia today. Next, the article evaluates the types of Title VII cases that the law allows plaintiffs to bring. In doing so, the article highlights the heavy burden of showing discriminatory intent and also will critique previous suggestions for modifying Title VII. Finally, this article justifies faculty mentoring opportunities and invitational rhetoric as an additional approach to addressing the present status of women in U.S. academia

A Fractured Establishment\u27s Responses to Social Movement Agitation: The U.S. Supreme Court and the Negotiation of an Outsider Point of Entry in Walker v. City of Birmingham

In classical social movement theory, scholars have identified the advocates of change as elements of agitation and the establishment as the entity that responds in an attempt to control the agitators. This classical approach has assumed that the establishment is a generally monolithic entity that responds in a unified manner to the efforts of the advocates of change. While this approach may accurately characterize some rhetorical situations, it does not necessarily have to characterize all such situations. For example, one could describe the judiciary as a part of the establishment because judges are well-connected and powerful individuals who, in many cases, have benefited from existing power structures. Although the judiciary, through majority opinions, makes decisions on appeals that come before it, the judiciary also issues dissenting opinions that can directly contradict the majority opinions. In light of the potential for expanding social movement theory beyond an essentially monolithic understanding of the establishment, the U.S. Supreme Court’s opinion in the 1967 case of Walker v. City of Birmingham affords communication scholars an opportunity for needed development of social movement theory. Therefore, this paper argues that two key texts from Walker, the majority opinion of Justice Potter Stewart and a dissent by Justice William Brennan, demonstrate how the establishment can fracture in its response to the speech of advocates of change. To make this argument, the paper initially addresses some foundations of social movement theory in communication studies. Then the paper reviews the background of the Walker case in greater detail. After reviewing the case, the paper provides analysis of the two judicial opinions noted above. Finally, the paper offers some implications of the analysis

Constructing Modern-Day U.S. Legal Education with Rhetoric: Langdell, Ames, and the Scholar Model of the Law Professor Persona

This article explains how lawyers like Christopher Columbus Langdell and James Barr Ames, a disciple of Langdell, employed rhetoric between 1870, when Langdell assumed the deanship at Harvard Law School, and 1920, when law had emerged as a credible academic field in the United States, to construct a persona, that of a scholar, appropriate for the law professor situated within the university. To do so, the article contextualizes the rhetoric with historical background on the law professor and legal education, draws upon rhetorical theory to give an overview of persona theory and persona analysis as a means of conducting the study, and elaborates upon both the new scholar persona that lawyers like Langdell and Ames constructed and the practitioner persona that other lawyers attempted to promote as the standard. For this study, the term lawyers will refer to practicing lawyers and judges as well as academic lawyers. Although rhetoric cannot resolve all conflicts, the significance of the rhetoric in this case is hard to overstate because the scholar persona constructed after the Civil War and before the Jazz Age is the persona that, with minor modifications, continues to shape law students, and thus future lawyers, in the present day

Beyond Aristotle: Alternative Rhetorics and the Conflict over the U.S. Law Professor Persona(e)

Prior research has sketched out a picture in which, at least since 1960 and continuing to the present, advocates of the differing personae, or roles, of the U.S. law professor have been sharply divided over such personae. Lawyers have advocated two major personae for the law professor to perform. One major persona is that of the scholar, who is a full-time teacher, researcher, and sometimes public servant, but who often has limited practical experience. The other major persona is that of the practitioner, who has a substantial number of years of practice at the bar and is prepared for hands-on lawyering instruction. At stake in this communication is the future of the central figure in the education of prospective lawyers. Unfortunately, the lawyers who have constructed these personae generally have employed traditional Aristotelian rhetoric, or persuasion, a process that has contributed to much rhetorical clash and little rhetorical understanding. This article maintains that alternative rhetorics offer new possibilities to help improve the conflict over the persona(e) of the U.S. law professor. To expand upon this perspective, the article begins with a discussion of invitational rhetoric, both defining invitational rhetoric and illustrating how invitational rhetoric can be helpful for lawyers presently involved in the conflict over the rhetorical construction of the law professor persona(e). The article then continues with a discussion of cooperative rhetoric, defining cooperative rhetoric as invitational rhetoric informs it, outlining the form of alternative dispute resolution known as collaborative law as a precedent for the implementation of cooperative rhetoric in the legal field, and illustrating how cooperative rhetoric can work in the conflict over the ideal law professor persona(e)

The Rhetoric of Catharsis and Change: Law School Autobiography as a Nonfiction Law and Literature Subgenre

To date, little scholarship, if any, has addressed the autobiographies of law students, which have appeared in law review articles and books since at least the late 1970s. This shortcoming of law and literature scholarship in the nonfiction genre of autobiography is problematic. In the interest of understanding diverse perspectives in the legal community, legal scholars with autobiographical interests ought to give attention to the autobiographies of different individuals in this community, including the law students who will be the future members of the profession. Also, this shortcoming leaves a gap in the narrative discourse of the law since lawyers may be more inclined to write about their legal careers than their law school careers, the latter of which are much shorter and perhaps less glamorous. One then must ask what becomes of individuals’ law school experiences. Law school is often a time of considerable anxiety and change for many law students, and this time can be the first major engagement that many law students have with the legal system. Given the prominent role that law plays in U.S. society, a better understanding of students’ experiences in law school, which is clearly one of the major professional influences on individuals who ultimately practice law, should be useful to current legal educators, lawyers, and perhaps even hapless future law students. Thus, to contribute toward a fuller understanding of the lives of the students who populate law school, this article presents an initial sketch of the nonfiction law and literature subgenre of law school autobiography. To do so, the article offers an overview of the literary genre of autobiography, demarcates several categories of law school autobiography, and then addresses common threads in the law school autobiographies

The Controversy Over the Legacy Highway in Utah: An Opportunity for Invitational Rhetoric

Beginning in the mid 1990s, residents of Utah began to debate the merits of the “Legacy Highway,” a large highway that would run near the Great Salt Lake in an attempt to alleviate the clogged commute on Interstate-15, which runs north/south through Salt Lake City, the state’s capital. Perhaps not surprisingly, environmental groups were upset with this proposed governmental project. Groups like the Advocates for Safe and Efficient Transportation and the Utah Department of Transportation faced off against the Sierra Club, Stop the Legacy Highway, and Utahns for Better Transportation. Generous amounts of rhetoric, including public discussion and litigation, resulted from this controversy. At stake for Utah’s residents were both transportation and environmental issues. In light of the extensive rhetoric in this controversy, this paper suggests invitational rhetoric as an alternative approach to help improve the discourse involved in the ongoing disagreement over the Legacy Highway in Utah. Sonja K. Foss and Cindy L. Griffin define invitational rhetoric as “an invitation to understanding as a means to create a relationship rooted in equality, immanent value, and self-determination.” One of the benefits of invitational rhetoric is that it can help parties work towards developing ongoing relationships, which could be beneficial in the case of the parties to the Legacy Highway conflict since both major sides have to live with each other in Utah. Hopefully, an invitational approach would allow parties to open doors to new possibilities rather than keeping open the same old doors that have led to repeated clash. The paper develops its thesis via several sections, including a more detailed statement of the conflict, methods employed in the study, discussion of the rhetorics of the two major sides in the conflict, an explanation of invitational rhetoric, and an application of an invitational approach to the environmental conflict at hand

A Key Influence on the Doctrine of Actual Malice: Justice William Brennan\u27s Judicial Philosophy at Work in Changing the Law of Seditious Libel

In light of the historical change in the law of seditious libel that New York Times v. Sullivan (1964) prompted and the need for further exploration of the human factors behind the case, this article gives attention to William Brennan’s judicial philosophy at work in the case. The article defines judicial philosophy as a system of guiding principles upon which a judge calls in the process of legal decision-making. Specifically, the article explains how, through Times v. Sullivan, Brennan’s instrumentalist judicial philosophy had an important influence on changing the course of legal protection for criticism of the government in the United States. To advance this central point, the article presents a short history of criticism of the government in the United States before Times v. Sullivan, an overview of Brennan and his judicial philosophy, a summary of Times v. Sullivan, and an application of Brennan’s judicial philosophy to the case