Metaphor and Reason in Judicial Opinions


Book Description

While much has been written on the use of metaphor in literature and religion, science and philosophy, few articles and no books have discussed its function in legal opinions. To the public, judges handing down judicial decisions present arguments derived through rational discourse and literal language. Yet, as Judge Richard Posner has pointed out, "rhetorical power counts for a lot in law. Science, not to mention everyday thought, is influenced by metaphors. Why shouldn't law be?" Haig Bosmajian examines the crucial role of the trope--metaphors, personifications, metonymies--in argumentation and reveals the surprisingly important place that figurative, nonliteral language holds in judicial decision making. Focusing on the specific genre of the legal opinion, Professor Bosmajian discusses the question of why we have judicial opinions at all and the importance of style in them. He then looks at specific well-known figures of speech such as the "wall of separation between church and state," justice personified as a female, or the Constitution as "color-blind," explaining why they are not straight-forward statements of legal fact but examples of the ways tropes are used in legal language.




Narrative and Metaphor in the Law


Book Description

Scholars from many disciplines discuss the crucial roles played by narrative and metaphor in the theory and practice of law.




Narrative and Metaphor in the Law


Book Description

It has long been recognized that court trials in the common law system, both criminal and civil, operate around pairs of competing narratives told by opposing advocates. In recent years, however, it has increasingly been argued that narrative flows in many directions and through every form of legal theory and practice. Interest in the part played by metaphor in the law, including metaphors for the law, and for many standard concepts in legal practice, has also been strong, though research under the metaphor banner has been much more fragmentary. In this book, for the first time, a distinguished group of legal scholars, collaborating with specialists from cognitive theory, journalism, rhetoric, social psychology, criminology, and legal activism, explore how narrative and metaphor are both vital to the legal process. Together, they examine topics including concepts of law, legal persuasion, human rights law, gender in the law, innovations in legal thinking, legal activism, creative work around the law, and public debate around crime and punishment.




Thomas Jefferson and the Wall of Separation Between Church and State


Book Description

No phrase in American letters has had a more profound influence on church-state law, policy, and discourse than Thomas Jefferson's "wall of separation between church and state," and few metaphors have provoked more passionate debate.




Judicial Rhapsodies


Book Description

All judges legitimize their decisions in writing, but US Supreme Court justices depend on public acceptance to a unique degree. Previous studies of judicial opinions have explored rhetorical strategies that produce legitimacy, but none have examined the laudatory, even operatic, forms of writing Supreme Court justices have used to justify fundamental rights decisions. Doug Coulson demonstrates that such “judicial rhapsodies” are not an aberration but a central feature of judicial discourse. First examining the classical origins of divisions between law and rhetoric, Coulson tracks what he calls an epideictic register—highly affective forms of expression that utilize hyperbole, amplification, and vocabularies of praise—through a surprising number of landmark Supreme Court opinions. Judicial Rhapsodies recovers and revalues these instances as significant to establishing and maintaining shared perspectives that form the basis for common experience and cooperation. “Judicial Rhapsodies is both compelling and important. Coulson brings his well-developed knowledge of rhetoric to bear on one of the most central (and most democratically fraught) means of governance in the United States: the Supreme Court opinion. He demonstrates that the epideictic, far from being a dispensable or detestable element of judicial rhetoric, is an essential feature of how the Court operates and seeks to persuade.” —Keith Bybee, Syracuse University




Lyrics in the Law


Book Description

In addition to citing case law, Judges have traditionally used recognized legal maxims or treatise citations to support their rulings. But today’s judiciary is becoming more apt to use pop culture, modern music, as well as humor in their decisions. This book gives examples of how songs and their lyrics have influenced judges, provided themes for their decisions, and helped make existing law more accessible to lay persons. Mark W. Klingensmith examines the clever ways judges have used them to enhance their judicial writings and how modern day musical lyrics that have effectively become recognized legal maxims by the courts. judicial writings.




Readings in Persuasion


Book Description

An innovative and riveting look at briefs from a highly respected author that can be used a primary text in an advanced legal writing class or as a secondary text in a basic legal writing course. The chapters can be taken in any order. In the first part of the book, individual chapters cover advanced legal writing topics such as rhetoric, voice, emotion, metaphor, and narrative. The second part of the book introduces famous cases, with the story of each case. Chapter introductions provide interesting insights, such as historical context, the story of the case and of the litigation of it, information about the lawyers who wrote the briefs on both sides, what the courts decided, and, where relevant, about what has happened since. Compelling content makes it easy to engage students while photos throughout enliven the text. Features: Highly respected author Flexibility can be used as core text in advanced legal writing with other materials secondary text in a basic legal writing course chapters can be taken in any order High-interest, engaging content Each chapter focuses on important legal writing topics rhetoric voice emotion metaphor narrative Features famous case Chapter introductions with compelling insights historical context the story of the case and its litigation information about the lawyers who wrote the briefs on both sides what the courts decided what has happened since Full-text cases and briefs offered on a companion website Photos that enliven the text




The Hollow Hope


Book Description

In follow-up studies, dozens of reviews, and even a book of essays evaluating his conclusions, Gerald Rosenberg’s critics—not to mention his supporters—have spent nearly two decades debating the arguments he first put forward in The Hollow Hope. With this substantially expanded second edition of his landmark work, Rosenberg himself steps back into the fray, responding to criticism and adding chapters on the same-sex marriage battle that ask anew whether courts can spur political and social reform. Finding that the answer is still a resounding no, Rosenberg reaffirms his powerful contention that it’s nearly impossible to generate significant reforms through litigation. The reason? American courts are ineffective and relatively weak—far from the uniquely powerful sources for change they’re often portrayed as. Rosenberg supports this claim by documenting the direct and secondary effects of key court decisions—particularly Brown v. Board of Education and Roe v. Wade. He reveals, for example, that Congress, the White House, and a determined civil rights movement did far more than Brown to advance desegregation, while pro-choice activists invested too much in Roe at the expense of political mobilization. Further illuminating these cases, as well as the ongoing fight for same-sex marriage rights, Rosenberg also marshals impressive evidence to overturn the common assumption that even unsuccessful litigation can advance a cause by raising its profile. Directly addressing its critics in a new conclusion, The Hollow Hope, Second Edition promises to reignite for a new generation the national debate it sparked seventeen years ago.




Introduction to Classical Legal Rhetoric


Book Description

Lawyers, law students and their teachers all too frequently overlook the most comprehensive, adaptable and practical analysis of legal discourse ever devised: the classical art of rhetoric. Classical analysis of legal reasoning, methods and strategy is the foundation and source for most modern theories on the topic. Beginning with Aristotle's Rhetoric and culminating with Cicero's De Oratore and Quintilian's Institutio Oratoria, Greek and Roman rhetoricians created a clear, experience-based theoretical framework for analyzing legal discourse. This book is the first to systematically examine the connections between classical rhetoric and modern legal discourse. It traces the history of legal rhetoric from the classical period to the present day and shows how modern theorists have unknowingly benefited from the classical works. It also applies classical rhetorical principles to modern appellate briefs and judicial opinions to demonstrate how a greater familiarity with the classical sources can deepen our understanding of legal reasoning.




Advanced Legal Writing


Book Description

With a practical focus on persuasive writing strategies, Advanced Legal Writing: Theory and Strategies in Persuasive Writing explores three classical techniques: logos, pathos, and ethos, and provides students with a thorough introduction to the elements of rhetorical style. Unlike many other advanced legal writing texts, which tend to focus on a document-specific approach, this unique coursebook focuses on classical writing strategies that students can apply to a wide range of settings. The depth and scope of this text make it appropriate for upper-level legal writing courses. The Third Edition has been expanded to include the use of movies and other popular culture media in chapters dealing with literary references. There have also been substantial revisions to the chapter on policy. Features: Comprehensive coverage of the technical aspects of rhetorical style: metaphor, literary allusion, and figures of speech. Emphasizes theory as well as practice, building on three basic strategies of persuasive legal writing: Logos: Logic and rational argument. o Pathos: Value-based argument. Ethos: Establishing credibility. Highlights interdisciplinary contributions to persuasive writing from diverse fields, including cognitive psychology, classical rhetoric, and morality theory. Presents effective strategies that extend beyond the trial or appellate brief to a broad range of documents and settings. Covers new developments in cognitive psychology, pathos, persuasion, and the role of metaphor in persuasive legal writing. Depth and scope appropriate for upper-level legal writing classes. Thoroughly updated, the revised Third Edition offers: Substantial revisions to the chapter on policy. Expanded chapters on literary references now include other media, e.g., movies and other pop culture platforms.