Communication and Law

Rhet 140 William Lewis
Fall 1999 Medbury 216
Office Hours: MWF 1-2; TR 10:45-11:30 271-2194
or by appointment
william.lewis@drake.edu

Course Overview "Law, then, is a stage for the display of verbal skill, linguistic virtuosity, and persuasive argument in which words take on a seriousness virtually unparalleled in any other domain of human experience."

Austin Sarat and Thomas Kearns, The Rhetoric of Law"Rhetoric should be seen as the central art by which culture and community are established, maintained, and transformed. This kind of . . . 'constitutive rhetoric' . . . has justice as its ultimate subject, and of it I think law can be seen as a species."

James Boyd White, Heracles' Bow

The objective of this course is to examine the public life of the law. This will not be a course in the content of the law?in the sense that, say, Business Law is about laws affecting businesses; it will not be a course in the procedure of the law?in the sense that a political science course or a sociology course might study the structures or functions of the criminal justice system; and it will not be a course in the practice of the law?in the sense that a performance course might study how lawyers could best communicate ideas in legal briefs or courtroom presentations.

In a broad sense, this course is about the meanings of law. It is about the ways in which law provides visions of community, structures understandings, and encourages some definitions of ourselves and of situations while discouraging others. How that happens, and what difference it makes, is the content of the course.

Grading

Papers 80%
Class Participation 20%

• Gary Bellow and Martha Minow (eds.), Law Stories, 1996
• Readings in Communication and Law

"Our search for the underlying basis of justice and judgment in American criminal trials has produced an interesting conclusion: the criminal trial is organized around storytelling."

Bennett and Feldman, Reconstructing Reality in the Courtroom

"Every telling is an arbitrary imposition of meaning on the flow of memory . . . every telling is interpretive."

Edward M. Bruner, "Experience and Its Expressions"

• The Baby M Case
• Trial as Narrative
• Videos: The Shooting of Big Man
• The Thin Blue Line
• Rieke & Stutman, Narrative Creative Conceptions of the Trial, 46-50
• Bennett & Feldman, Case Construction Strategy in Trials, 93-118
• Sherwin, Law Frames: Historical Truth and Narrative Necessity in a Criminal Case, 39-83
• Trial and Community--Identity and Action
• Ferguson, Untold Stories in Law, 84-98
• Dershowitz, Life is Not a Dramatic Narrative, 99-105
• Malcolm, The Side-Bar Conference, 106-9
• Rosen, Rhetoric and Result in the Bobby Seale Trial, 110-12
• Paper #1: A Narrative Account of a Trial at the Polk County Courthouse

"Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live. . . . Every prescription is insistent in its demand to be located in discourse?to be supplied with history and destiny, beginning and end, explanation and purpose."

Robert Cover, "Nomos and Narrative"

"The central question is not that of goods, but of voices and relations: what voices does the law allow to be heard, what relations does it establish among them? With what voice, or voices, does the law itself speak? These are the questions with which rhetorical criticism would begin."

James Boyd White, Heracles' Bow

• Rhetoric and Law
• Ferguson, The Judicial Opinion as Literary Genre
• White, Imagining the Law
• Supreme Court Cases
• Sheppard v. Maxwell, 384 U.S. 333 (1966)--Fair Trial v. Free Press
• Korematsu v. US, 323 U.S. 214 (1944)--Japanese Internment Camps in WWII
• Paper #2: Reading the Case, Argument/Story/Vision

"In the course of their involvement, the legal workers in these stories gave definition to their commitments, to their clients' claims, to their clients as individuals and to themselves. The basic tool of law practice?words?became a vehicle, not only of persuasion, but of invention and reinvention of identities of those affected by the legal process. . . . [L]aw talk works to define both speaker and audience, altering and creating identities and self-understandings of those it touches."

Bellow and Minow, Law Stories

• Law's Violence--Death Penalty Narratives
• Sarat, Speaking of Death: Narratives of Violence in Capital Trials, 135-83
• Cases and Quandaries
• Alice & Staughton Lynd, "We Are All We've Got": Building a Retiree Movement in Youngstown, Ohio, Law Stories, 77-100
• Nell Minow, What's Wrong With These Pictures? The Story of the Hammer Museum Litigation, Law Stories, 101-130
• Abbe Smith, On Representing a Victim of Crime, Law Stories, 149-68
• Paper #3: Analysis of an Article: Exploring the Implications

"… I shall conceive of the law as a system of discourse that the lawyer and judge must learn and use, and of which we can ask what meanings it creates?or enables us to create?for our individual and collective lives."

James Boyd White, "Imagining the Law"

The final section of the course will be devoted to the development and presentation of projects of each student's choosing. While the range of choice is relatively broad, each of the projects should work within the following guidelines: First, the project should pursue or apply or critique the central assumption of the course: that law is a fundamentally rhetorical project that works through narrative. Second, the project should focus on a text or a set of texts or an event that operates as a text. Third, the project should produce a tangible outcome. This is likely to be a paper, but there are other possibilities. The nature of the projects is relatively open, but they must be approved beforehand.

You are welcome and encouraged to develop projects of your own choosing. The list of possible projects is intended to be suggestive.

• A novel about the law, such as Presumed Innocent by Scott Turow or Charles Dickens' Bleak House .
• An extended account of an actual case, such as A Civil Action by Jonathon Harr or Hillary's Trial: The Elizabeth Morgan Case: A Child's Ordeal in America's Legal System by Jonathon Groner.
• A significant legal issue such as the Death Penalty or reform of the jury system.
• An unresolved question such as the relationship between law and justice, or the role of race in American legal practice.
• A book of legal theory such as The Alchemy of Race and Rights by Patricia Williams or Rights Talk by Mary Ann Glendon.
• A classic article on the nature of law such as Stanley Fish, "The Law Wishes to Have a Formal Existence" or Robert Cover, "Violence and the Word."
• The background, consequences, and historical context of a significant legal decision such as Dred Scott or Brown v. Board of Education.