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marysrhetoricportfolio-blog · 6 years

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Final Research Proposal

The Equal Rights Amendment has been debated for almost a century after being introduced in Congress in 1921. In 1972 it passed out of both houses and went on to the ratification stage, but failed to pass in ⅔ of states, therefore failing to become an amendment. Why is the Equal Rights Amendment under such debate? For my research I will be analyzing the rhetorical legal arguments of both sides of the ERA debate, and critiquing the hyper-rhetorical identity of a woman in legal rhetoric.

I will research the historical journey of the Equal Rights Amendment, from the moment it was introduced in 1921 to the present arguments of its ratification. First I will use classical legal rhetorical theory to identify the material and common topoi, or the tools embraced to argue a certain viewpoint like ethos, pathos and logos, used in the law itself, as well in the arguments for and against its ratification within state legislatures. The arguments for the equal rights amendment use ethos through the scientific reasoning that women and men are equal therefore should be protected as such under the law, as well as the pathos of the historical oppression of women. Those against the ERA argue that the amendment would be redundant and unnecessary because it should be covered by the 14th amendment. However, there are few arguments present against the ERA, mainly because they have the advantage of being free from burden of proof, since it is easier to argue things should stay the same rather than be changed. Next, I will use critical legal rhetorical theory to analyze how these arguments function within the larger society and contain repercussions of oppression and sexism. To interpret my research, I will combine the methods used from classical legal rhetorical theory that form the argument with the criticism of the legal rhetorical theory used to oppress women. The Equal Rights Amendment was not rejected because it was a bad piece of law or legislation, but because the underlying rhetorical implications of giving equal rights to women would threaten the civic life constructed by the law in America.

Foss, Sonja K. "Equal Rights Amendment Controversy: Two Worlds in Conflict." Quarterly Journal of Speech, vol. 65, no. 3, Oct. 1979, p. 275. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=ufh&AN=9376983&site=ehost-live

Ferrell, Ruth M. “The Equal Rights Amendment to The United States Constitution — Areas of Controversy.” The Urban Lawyer, vol. 6, no. 4, 1974, pp. 853–891. JSTOR, JSTOR, www.jstor.org/stable/27893018.

Freund, Paul A. "The Equal Rights Amendment Is Not the Way," Harvard Civil Rights-Civil Liberties Law Review vol. 6, no. 2 (March 1971): p. 234-242.

Ginsburg, Ruth Bader. “The Need for the Equal Rights Amendment.” American Bar Association Journal, vol. 59, no. 9, 1973, pp. 1013–1019. JSTOR, JSTOR, www.jstor.org/stable/25726416.

Hauser, Rita E., et al. “The Equal Rights Amendment.” Human Rights, vol. 1, no. 2, 1971, pp. 54–85. JSTOR, JSTOR, www.jstor.org/stable/27878935.

Siegel, Reva B. “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family.” Harvard Law Review, vol. 115, no. 4, 2002, pp. 947–1046. JSTOR, JSTOR, www.jstor.org/stable/1342628.

Smith, L. A., & Smith, S. A. (2017). Keeping hope alive: A case study of the continuing argument for ratification of the ERA. Frontiers, 38(2), 173-207. Retrieved from http://newman.richmond.edu:2048/login?url=https://search.proquest.com/docview/1933072120?accountid=14731

“Sex, Discrimination, and the Constitution.” Stanford Law Review, vol. 2, no. 4, 1950, pp. 691–730. JSTOR, JSTOR, www.jstor.org/stable/1226116.

#research proposal

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marysrhetoricportfolio-blog · 6 years

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Week Eight

For class on Thursday, come prepared to continue our discussion of Critical Legal Rhetorical Theory, combined with Classical Rhetorical Theory. Please read as much of Just Mercy as you can (its a quick and easy read, and keep in mind its been assigned since the beginning of the semester) to add to our discussion. Come prepared as well to explore your research project. To prepare for our discussion please respond to the following prompts:

1. Describe how Stevenson creates arguments through ethos and pathos in Just Mercy? Give examples.

2. Using key concepts of critical legal rhetorical theory, offer insight into Stevenson's approaches in Just Mercy

Stevenson uses ethos and pathos to construct his arguments consistently throughout Just Mercy. By using a combination of legal arguments and personal stories about individuals, Stevenson gains the audience’s respect and their empathy for the people he writes about. For example, in the case of Evan, the child sentenced for a life in prison, Stevenson argues his innocence by combining his knowledge of the law and the saddening experiences he had in prison. The combination of ethos and pathos is essential in his argument to free wrongful convictions.

Commentary:

My post for this week was short and did not nearly get into all of the classical and critical legal rhetorical theory embraced by Stevenson in Just Mercy. The effects of gender and race play a large part in understanding why these wrongful convictions occurred in the first place. After making sure the audience knows of his extensive knowledge in the law, he simultaneously critiques the law for its systematic oppression and discrimination against young black men. Just Mercy is an exceptional example of how critical legal rhetorical theory can address real problems and be used to unravel the complexities of our oppressive prison system.

#week eight

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Week Seven

Identify from Hasain and Crenshaw the points you discern to be key to defining critical legal rhetorical theory. Identify key passages from both essays that we should explicate and discuss in class.

How do you see Critical and Classical legal rhetorical theories as methodologies for analyzing rhetoric and law?

Original Response:

Hasain’s article explores how power relationships affect legal rhetorical theory and how in modernity we must be critical of the historical discourse surrounding it. On page 45, Hasain writes “While there are a variety of different approaches that can be taken in critiquing the grand narratives of the law, one fruitful perspective gaining adherents involves analyzing legal decisions as merely local, contingent opinions that are chosen out of a range of possible policy alternatives”. This is key to critical legal rhetorical theory because it breaks down the division between legal and public argumentation. Legal discourse is inherently wrapped up in rhetorical arguments and should be analyzed as such. Hasain continues by writing, “Instead of elitist analyses that merely describe the formal logic of particular texts, we now have calls for studies that look for the ways that texts function in rhetorical contexts and are created through the negotiations of multiple communities”(p45). By examining particular legal texts through rhetorical context, our understanding of how law is practiced in the modern age can develop with a deeper understanding of power relationships. I believe going over the introduction in Hasain, specifically what is discussed on page 45, would be beneficial for the class’s knowledge of why critical legal rhetorical theory is important.

With that understanding from Hasain, one can more fully understand Crenshaw’s argument because of her deep examination of the rhetoric behind legal cases and politics surrounding black women. By going examining the first section in Crenshaw’s article, “The Antidiscrimination Framework”, one may receive a better understanding of how race and gender intersect within legal discourses. Crenshaw writes at the bottom of page 149, “Black women's experiences are much broader than the general categories that discrimination discourse provides. Yet the continued insistence that Black women's demands and needs be filtered through categorical analyses that completely obscure their experiences guarantees that their needs will seldom be addressed”. By intersecting rhetoric and legal discourses, the Black women’s experiences can be addressed from a more critical point of view that is able to assess their needs and demands.

By combining Critical and Classical legal rhetorical theory, we can begin to understand both the material topoi that forms an argument and also the underlying rhetoric that could be caused by race, gender, sexuality, and other identities. The two methodologies consist of two different approaches to analyzing an argument, however both are important if one wishes to understand the motives behind certain legal discourse.

Commentary:

Critical legal rhetorical theory was probably my favorite part of the course. By critiquing the law to understand how identity plays a role, one can better understand the legal discourse at play. My original post does a fairly good job at answering what critical legal rhetorical theory is and how the connection between critical and classical legal theory can help us understand legal discourse in a more comprehensive way.

#week seven

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marysrhetoricportfolio-blog · 6 years

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Week Three

Please read Frost, Topics of Invention (Chp. 2), and Ethos, Pathos, Logos (Chp. 4). Please conduct research in the primary text in Aristotle's Rhetoric and the ad Herennium. Post in response to the following prompts:

1. Identify a collection of search terms and phrases for researching relevant text in Aristotle's Rhetoric and the ad Herennium. For example, "law" or "forensic", etc. You can discern these key terms and phrases from reading Frost. Pay attention to the technical vocabulary of the study of classical rhetoric and law in Frost, and identify key terms and phrases to search for in the primary texts. (Note that Frost calls "stasis theory" "status theory"--don't ask me why, that's a very strange liberty to take with the text!)

2. Conduct a search of these key terms and phrases in the primary text of Aristotle's Rhetoric and the ad Herennium. Present as complete of a list of annotated textual references as you can given your time for the class (10-12 hours a week, including class time). Include quotation or paraphrasing of primary text, proper citation, and an annotation that describes and summarizes the text.

3. Identify from your reading of Frost and your research in the primary texts what you think are the top 3 most important ideas for us to discuss in class. Offer your summary of these ideas in the texts you studied. If you can, offer your exemplification of each of these ideas in a case study in rhetoric and law.

I did not complete the post for this week. However, our discussions in class provided many key points to answer these questions. For textual references I decided to use the term “argument”.

Argument

"Rhetoric is useful because …. before some audiences not even the possession of the exactest knowledge will make it easy for what we say to produce conviction. For argument based on knowledge implies instruction, and there are people whom one cannot instruct. Here, then, we must use, as our modes of persuasion and argument, notions possessed by everybody, as we observed in the Topics when dealing with the way to handle a popular audience," (book I part 1).

In this excerpt, Aristotle explains how rhetoric is used to form arguments and have an effective persuasion. He says that for some people, even the most convincing knowledge of the situation may not lead to conviction on its own. He also says that not everyone has access to this knowledge. Therefore, in order to prove your case, you must use “notions possessed by everybody,” and argue properly.

"Thirdly, persuasion is effected through the speech itself when we have proved a truth or an apparent truth by means of the persuasive arguments suitable to the case in question,” (book I part 1).

Here is another example of how effective persuasion is directly related to appropriate arguments. He says that persuasion is “effected” through the arguments.

"These are the essential features of a speech; and it cannot in any case have more than Introduction, Statement, Argument, and Epilogue. 'Refutation of the Opponent' is part of the arguments: so is 'Comparison' of the opponent's case with your own, for that process is a magnifying of your own case and therefore a part of the arguments, since one who does this proves something," (book III part 13).

In this passage, Aristotle refers to features of an effective speech. The argument portion is an umbrella under which “refutation of the opponent” and “comparison” fall. Another key word here that relates to argument is “proves”—referring to how proper arguments should prove your point.

#week three

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Week Six

1. Again, identify a key legal text central to your research aim. This legal text must be one that includes legal arguments whether in criminal, civil, or interpretive legal contexts. Provide a copy of this text, whether digital by way of a link or a digital document. Summarize this text. Explain why this text is so central to your study. Be brief and concise, use bullet points and other dimensions of graphic design to make your post easily readable and understandable--this will help your inventional processes too, for designing clarity on your own project.

2. Identify the key rhetorical insights about this legal text that emerge from studying it through the lens of classical legal rhetorical theory. Classical legal rhetorical theory centers on invention and style.The classical resources of invention include stasis theory, topical invention, and enthymematic reasoning. The classical resources of style include tropes and figures that shape proofs, such as metaphors, antithesis, parallelism. The resources of invention and style in legal discourses are much greater than these mentioned, but these mentioned are the core ideas you should use for analyzing your text.

3. Read Hasain, Crenshaw, and the essay on Janus v. AFSCM. Watch for Supreme Court news on the Janus ruling, expected for Monday February 26th, consider this ruling as part of your reading. Drawing from Hasain and Crenshaw, identify 2-4 key questions critical legal rhetorical theory asks of legals texts. Explain each of these questions and show how these questions can be asked and explored in the Janus case as well as in your case, using the legal text you critiqued from a classical perspective above.

Original Response:

1. http://heinonline.org/HOL/Page?handle=hein.barjournals/fedbj0031&div=26&start_page=247&collection=barjournals&set_as_cursor=6&men_tab=srchresults

I found this article from the Federal Bar Journal in 1972. It’s effective at outlining the purposes of the ERA and the arguments for and against it. The author, Esther Lexcen, goes through a legal history of the inequalities between men and women, including education, employment, domestic areas and others. Lexcen cites multiple court cases to support her argument that the ratification of the ERA is necessary.

2. Enthymematic reasoning is central to my text. Throughout the article, she is arguing that the equal rights amendment is necessary, providing historical evidence of the oppression of women, with the implied premise being that oppressing people is wrong. Lexcen attempts to answer the stasis question of “what happened?”, by providing historical evidence in court cases. Pathos used by Lexcen is evident in her use of anecdotal evidence for the oppression of women. The stories she uses provoke feelings of empathy for women because of their historical oppression.

3. How do power relationships affect legal rhetoric? Analyzing power structures is central to understanding the ERA due to its dichotomous nature. Due to the imbalance between men and women, rhetorical arguments for equality are based in exploring and understanding the power imbalance and using rhetoric to combat it. Hasian writes in his article, “What is needed are localized studies that illustrate how the law is produced and instantiated through particular power relationship in the “context of an active rhetorical culture””(p54). This is also important in the Janus ruling this past week, because of the power imbalances between public employers and the employees. When businesses hold more power than the people who work for them, it creates an imbalance that the law needs to take into consideration as it navigates a case like the Janus ruling.

How do race and gender shape legal rhetoric? Obviously, my paper topic is very conscious of gender and how that affects the law. Crenshaw outlines this question in her article, writing “It is enough, for now, that such an effort would encourage us to look beneath the prevailing conceptions of discrimination and to challenge the complacency that accompanies belief in the effectiveness of this framework. By so doing, we may develop language which is critical of the dominant view and which provides some basis for unifying activity”(p167). As critical rhetorical theorists, we must examine our language surrounding discrimination in order to create a more unified culture. With the Equal Rights Amendment, it’s essential to examine the gender issues, but also the race and socioeconomic issues that affect the rights of women in the United States.

Commentary:

This blog post was a great display of critical and classical legal rhetorical theory and the need to examine language as tools for either criticizing or producing discrimination. Power relationships also are key in understanding the impact of certain legal texts. My research on the Equal Rights Amendment has been greatly influenced by how power is distributed in society in a way that oppresses women’s equality and rights. This is also present in my other classmate's work, for example in Rebecca’s research on child marriage laws, she must analyze the power dynamics between parental structures and children, as well as between parents and the court system.

#week six

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marysrhetoricportfolio-blog · 6 years

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Week Five

So that we can continue our exploration of material/specific/particular topoi (in contrast to the common/universal/general topoi), and advance to explore the canon of Style, namely some of the key tropes and figures that are useful and prevalent in legal argument, please re-read Chp. 2 and 4 in Frost, and advance to read Chp. 5-6 in Frost. Again, conduct research in the primary text so that you can train your habits to rely not just on textbook summaries, but the exploration of primary text. Then respond to the following prompts for our class discussion:

1. Read about the Dalkon Shield Case in the following source http://multinationalmonitor.org/hyper/issues/1986/0115/ How are ethos and pathos used in Lord's speech? How are enthymemes and examples used? What topoi, both common and specific, govern the invention of Lord's arguments? What stylistic qualities does Lord's speech display? Search for Robbins' Company responses to Lord's speech. They argued that the Judge exceeded the proper boundaries of judicial conduct in his speech. In this sentencing speech, we see something similar as in the Auqualina sentencing speech of Nassar. Thinking through classical rhetorical art of legal rhetoric, what are the proper boundaries of judicial conduct in sentencing speeches? Do Lord and Auqualina use a rhetorical art in keeping with classical standards of an ethical art?

2. Draft an aims statement for your research project in this class. What do you aim to study? Supply one link to a text that will be central to your study. Explain why this text is so important, and using what you know about classical legal rhetorical theory, offer what you think will be some key rhetorical foci for your project.

Original Response:

Pathos is an instrumental tool used in Lord’s speech. His use of intense language creates an emotional response from the audience. For example, he states “Under your direction, your company has in fact continued to allow women, tens of thousands of women, to wear this device a deadly depth charge in their wombs, ready to explode at any time…” Calling the shield device a “deadly depth charge” evokes a dark image of the device itself, making the audience have negative feelings about the company, furthering his argument. Lord’s use of examples and details also provokes and emotional response from the audience, for example he states, “you planted in the bodies of these women instruments of death, of mutilation, of disease.” Not only is the language emotional and powerful, it shows the pain that the victims of the defense’s negligence felt.

Ethos is also used a lot in Lord’s speech, specifically his attack on the ethos of the defendants. He calls out the negligence of Robins, Lunsford and Forest individually, attack their character and making them sound like greedy, evil men. The attack on their ethos by Lord also helps him build his own ethos, by showing the audience that he has a moral compass strong enough to not tolerate the behavior of the Robins company.

Some common topoi used in Lord’s line of argument include cause/effect (you gave these women the implants, they were hurt by them), past fact/future fact (if people have been hurt in the past, it will happen again, so recall the shields). As for material topoi, the use of artistic proofs ethos and pathos, as described above, are key elements to Lord’s final argument.

I believe that the proper boundaries for judges are anything that with keep their ethos intact. In regards to Aristotle, the character of the rhetor is the most important thing. The passion in both Lord’s and Auqualina’s sentencing speeches are enough to persuade the audience, while keeping their ethos intact because of their well thought out arguments. I believe these two judges use rhetoric as an ethical art because they understand the limits of pathos, and professionalism while serving justice at the same time.

2. For my research project in class, I would like to study the Equal Rights Amendment; it’s development, implementation and the controversy over the amendment. I found this journal article:

This article explores the controversy over the Equal Rights Amendment, as well as the historical battles over its ratification. By using this article, I’d be able to get a good basis for what the issues are with the ERA and people’s attitudes towards it.

My key rhetorical foci will be the arguments made on both sides of opinions of the ERA. The topics of invention, the topoi used and its effectiveness.

Commentary:

This blog post helped me grasp a better understanding of what topoi were and how to identify them in actual legal arguments. By studying the Dalkon Shield and Larry Nassar cases I learned about how ethos and pathos can be powerful tools in the persuasiveness of arguments, and also the use of common topoi. The link that I supplied for resources to my research paper has remained to be a great resource, and my rhetorical foci were also the same.

#week five

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Week Two

Group Post and Presentation: Students will summarize group text in post and presentation, and somewhere in this summary put forth what they discern to be the top 3 lessons about rhetoric and law that emerge from the text. All group members must participate equally and this must be demonstrated in the deliverables of post and presentation.

My group: Aeschylus, The Eumenides

Original Post:

Group 1: Mary McKeller, Rebecca Seeger, & Charlotte Stone

VIEW POWERPOINT PRESENTATION HERE

Aeschylus’ The Eumenides

The opening scene of the Eumenides is set outside the temple of the god Apollo. When the priestess of the temple arrives, she discovers a man, Orestes, sleeping with a sword surrounded by sleeping Furies, goddesses of vengeance . Petrified, the priestess flees the temple. From the previous play in the Oresteia trilogy, the audience knows that Orestes has come to the temple to absolve himself after killing his mother, Clytemnestra.

When Orestes wakes up, the god Apollo suggests that Orestes travel to Athens to seek the help of the goddess Athena. Apollo tells Orestes that he will defend Orestes in his trial for the killing.

When Apollo and Orestes leave, the ghost of Clytemnestra, Orestes’ dead mother, appears inside the temple. She wakes the Furies and riles them up, encouraging them to pursue Orestes for his crime.

When Apollo returns to the temple he argues with the Furies, insisting that they leave. The Furies charge that Apollo is chiefly responsible for the death of Clytemnestra because he convinced Orestes to kill her. Angry and out for the blood of Orestes, the Furies leave the temple to hunt him down in Athens.

Now in Athens, Orestes prays to the goddess Athena. Just when the Furies are catching up to Orestes and paralyzing him with a binding song, Athena enters, answering Orestes’ prayer. Orestes explains that he killed his mother because his mother slayed his father, Agamemnon. Athena proposes that they settle the issue by means of a trial with a jury of twelve Athenian citizens. She will assume the role of judge.

Next, the trial begins. Apollo arrives to defend Orestes. The Furies begin the proceedings by interrogating Orestes who admits that, acting on the advice of Apollo, he did slice Clytemnestra’s neck with a sword as revenge for her having killed Agamemnon. When the Furies question Apollo, he confirms Orestes’ account of the incident. Apollo and Orestes both advance the argument that Orestes was not related by blood to his mother since mothers only provide for the bodily needs of children, while fathers act as their true parent.

The members of the jury cast their votes. Athena announces that she awards her vote to Orestes because she favors men over women. The audience then learns that the jury is split, so Athena’s vote becomes the tie-breaker. Orestes goes free.

Upset about the outcome, the Furies chant their frustration. Athena persuades them to accept Orestes’ acquittal by offering them a home in Athens where they can act as goddesses that both encourage good and punish evil. With this new purpose, the Furies become “the Eumenides” or “The Kindly Ones.”

Rhetoric and Law Lessons that Emerge from the Text:

1 ) Patriarchy is historically bound up with society’s rhetoric and laws.

-Apollo argues that the mother is not the real parent anyway. “Not the true parent is the woman’s womb that bears the child.”

-He uses Athena, who was born of Zeus as an example: “Athena, daughter of Olympian Zeus, Never within the darkness of the womb...but a bud more bright than any goddess in her breast might bear."

-The play reduces a woman to her body parts: “She doth but nurse the seed.”

-Finally, Athena casts her vote in favor of Orestes because a woman’s murder is not morally equivalent to a man’s.

Overall, a large part of the rhetoric used to persuade the jury is built from strongly patriarchal values.

2) Different approaches to law exist in the world and are pitted against each other. Therefore, rhetoric must constitute justice.

-The way the Furies tell it, Orestes brutally murdered his mother and should therefore be tortured and killed himself. They exhibit a strict intolerance to crime and an eye for an eye mentality.

-The way Orestes tells it, the killing of his mother was a justifiable response to her murder of his father.

This disagreement is proof that the law is inadequate without rhetoric. Without an obvious answer, those involved must count on rhetoric to reach a solution.

3) Although a system may appear to be just, it can be tainted by unjust rhetoric.

-The trial of Orestes is supposed to bring about justice and end the cycle of revenge within Orestes’ family, but the outcome of the trial is arbitrary.

-Athena, the deciding vote, makes her decision based on the fact that she is a “champion of men.”

-This is a debatably unjust outcome to the situation.

Therefore, we must consciously critique our societal processes for rhetoric and law if we are to avoid unjust outcomes.

Some important quotations to consider:

Chorus of Furies: condemning Apollo for defending and protecting Orestes

“Thou, child of the high God Zeus, Apollo, hast robbed us and wronged;

Thou, a youth, hast down-trodden the right that to godship more ancient belonged;

Thou hast cherished thy suppliant man; the slayer, the God- forsaken,

The bane of a parent, by craft from out of our grasp thou hast taken;

A god, thou hast stolen from us the avengers a matricide son-

And who shall consider thy deed and say, It is rightfully done?” (Aeschylus).

Leader of the Chorus: being an accomplice is just as bad as committing the crime

“O king Apollo, in our turn hear us.

Thou hast not only part in these ill things,

But art chief cause and doer of the same…

Thine oracle bade this man slay his mother…

Then didst thou aid and guard red-handed crime,” (Aeschylus).

Chorus of Furies: an eye for an eye mentality

“It may not be! a mother's blood, poured forth

Upon the stained earth,

None gathers up: it lies-bear witness, Hell!-

For aye indelible

And thou who sheddest it shalt give thine own

That shedding to atone!

Yea, from thy living limbs I suck it out,

Red, clotted, gout by gout…” (Aeschylus).

Chorus of Furies: determined to not let crime go unpunished

“But if, as yonder man, he hath

Blood on the hands he strives to hide,

We stand avengers at his side,

Decreeing, Thou hast wronged the dead:

We are doom's witnesses to thee.

The price of blood, his hands have shed,

We wring from him; in life, in death,

Hard at his side are we!” (Aeschylus).

Athena: refuses to accept the Furies’ account of the story without hearing the other side. Her scale is balanced until evidence shows her otherwise.

“Two stand to plead-one only have I heard.”

“Enough is said; I bid the judges now

With pure intent deliver just award,” (Aeschylus).

Athena: chooses a jury of citizens to examine this difficult case despite being a goddess herself

“I choose unto me judges that shall be

An ordinance for ever, set to rule

The dues of blood-guilt, upon oath declared.

But ye, call forth your witness and your proof,

Words strong for justice, fortified by oath;

And I, whoe'er are truest in my town,

Them will I choose and bring, and straitly charge,

Look on this cause, discriminating well,

And pledge your oath to utter nought of wrong,” (Aeschylus).

Apollo: presents a sexist argument in defense of Orestes

“...Not the true parent is the woman's womb

That bears the child; she doth but nurse the seed

New-sown: the male is parent…” (Aeschylus).

Athena: Before the citizens begin to vote

"Therefore, O citizens, I bid ye bow

In awe to this command, Let no man live,

Uncurbed by law nor curbed by tyranny;

Nor banish ye the monarchy of Awe

Beyond the walls; untouched by fear divine,

No man doth justice in the world of men…” (Aeschylus).

Athena: casts the final vote of the trial in favor of Orestes to champion men

“Mine is the right to add the final vote,

And I award it to Orestes' cause.

For me no mother bore within her womb,

And, save for wedlock evermore eschewed,

I vouch myself the champion of the man,

Not of the woman, yea, with all my soul,-

In heart, as birth, a father's child alone.

Thus will I not too heinously regard

A woman's death who did her husband slay,

The guardian of her home; and if the votes

Equal do fall, Orestes shall prevail...” (Aeschylus).

Works Cited

Aeschylus. “Eumenides.” Translated by E.D.A. Morshead, The Internet Classics Archive | Eumenides by Aeschylus, 1994, classics.mit.edu/Aeschylus/eumendides.html.

Shmoop Editorial Team. “The Eumenides Summary.” Shmoop, Shmoop University, 11 Nov. 2008, www.shmoop.com/eumenides/summary.html.

Commentary:

I really enjoyed our project on The Eumenides. Working with my two brilliant classmates opened my eyes to new perspectives on classical legal rhetorical theory. Rhetoric constitutes the law, the need for rhetoric to prevail justice, and the patriarchal society of which rhetoric creates the law. I believe we tapped into critical legal rhetorical theory before we even knew the basics of it.

#week two

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marysrhetoricportfolio-blog · 6 years

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Midterm

How can classical and critical legal rhetorical theories be used to analyze matters of law and justice? Be thorough and detailed about each theory, then clarify ways in which the two theories, though distinct, can work in interrelated ways to analyze law and justice.

Consider the template for research proposals in the School of Arts and Sciences (you can find this online or on our syllabus).

Please define your aim statement for your research project

Please define your plan for research for your project in terms of classical and critical legal rhetorical theory

Using all we have read in the class, Boyd White, Frost, Aristotle, Cicero, Hasain, and Crenshaw, please explicate the idea that rhetoric constitutes and orchestrates the law. Why is a constitutive view of rhetoric and law one that bends towards justice?

Original Responses:

1. Classical legal rhetorical theory analyzes matters of law and justice through identifications of topical invention and stasis theory. By using the stasis questions (What happened? What are we going to call what happened? What is the quality of what happened? What are we going to do about it?), one is able to define the legal boundaries of a case, as well as set a basis for rhetorical arguments. The key to understanding classical legal rhetorical theory is that rhetoric constitutes the law, as the law is created by rhetorical activity and rhetoric orchestrates civic life. Classical legal rhetorical theory also defines rhetoric as the art of persuading what is probable, not necessarily what is true. James Boyd White (1985) writes, "Instead of dealing with what is "known," it deals with what is probably the case. Thus in Aristotle, the enthymeme is defined as a syllogism based upon propositions that are themselves not necessarily true but probable. So regarded, rhetoric is the art of establishing the probable by arguing from our sense of the probable. It is always open to replacement by science when the truth or falsity of what is now merely probable is finally established"(p687). Because of this, rhetoric becomes a tool to persuade the jury of the probable, not the truth, blurring the lines of justice. Aristotle himself writes in his Rhetoric, “It is clear, then, that rhetoric is not bound up with a single definite class of subjects, but is as universal as dialectic; it is clear, also, that it is useful. It is clear, further, that its function is not simply to succeed in persuading, but rather to discover the means of coming as near such success as the circumstances of each particular case allow.” While one may believe the law is a priori, classical legal rhetorical theory shows us that this is not the case, because the law is constantly changing and is based on perspective.

Critical legal rhetorical theory sees classical legal theory through a modern lens and critiques its methods based on sociological effects it has on society. On page 45, Hasain writes “While there are a variety of different approaches that can be taken in critiquing the grand narratives of the law, one fruitful perspective gaining adherents involves analyzing legal decisions as merely local, contingent opinions that are chosen out of a range of possible policy alternatives”. This is key to critical legal rhetorical theory because it breaks down the division between legal and public argumentation. Legal discourse is inherently rhetorical and should be analyzed as such, and therefore critiqued as such. Hasain continues by writing, “Instead of elitist analyses that merely describe the formal logic of particular texts, we now have calls for studies that look for the ways that texts function in rhetorical contexts and are created through the negotiations of multiple communities”(p45). By analyzing the law through a critical rhetorical lens, one may better understand how the law is used rhetorically to create a certain civic life. This certain civic life could be designed to oppress certain groups of people, like women, people of color or LGBT individuals.Classical and critical legal rhetorical theory can work together to analyze why our laws are the way they are and the repercussions they have on society as a whole. By combining Critical and Classical legal rhetorical theory, we can begin to understand both the material topoi that form an argument and also the underlying rhetoric that could be caused by race, gender, sexuality, and other identities.

Aristotle. “Rhetoric.” Rhetoric by Aristotle, classics.mit.edu/Aristotle/rhetoric.1.i.html.

Hasian, Marouf. “Critical Legal Rhetorics: The Theory and Practice of Law in a Postmodern World.” Southern Communication Journal, vol. 60, no. 1, 1994, pp. 44–56., doi:10.1080/10417949409372961.

White, James Boyd. “Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life.” The University of Chicago Law Review, vol. 52, no. 3, 1985, p. 684., doi:10.2307/1599632.

2.Part 1: Aims (Abstract of 100-200 words)Clearly state the hypothesis, thesis, outcomes or objectives of your project as concisely as possible. What specific questions will you seek to answer? This section should be written for the non-specialist.

The Equal Rights Amendment has been debated for almost a century after being introduced in Congress in 1921. In 1972 it passed out of both houses and went on to the ratification stage, but failed to pass in ⅔ of states, therefore failing to become an amendment. Why is the Equal Rights Amendment under such debate? For my research, I will be analyzing the rhetorical legal arguments of both sides of the ERA debate, and critiquing the hyper-rhetorical identity of a woman in legal rhetoric.

Part 3: Plan for Research (200-500 words)Describe your plan for research, i.e. methods, techniques, sequence of events. Explain how your approach will address your questions. What specifically will you do? Where will the work be done? Describe your anticipated results (quantitative, qualitative, creative, etc.) What methods will you use to analyze, interpret, and assess results? What outcomes will result from this project? (For instance, will a conference presentation result? Will your presentation at the A&S Research Symposium be a poster or a talk?) While the Plan for Research section should be generally comprehensible to a non-specialist, you may need to mention specific techniques known only to specialists.

3.James Boyd White in his article, “Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life” (1985), writes of the constitutive view of rhetoric and law, beginning his article with; “In this paper I shall suggest that law is most usefully seen not as it usually is by academics and philosophers, as a system of rules, but as a branch of rhetoric; and that the kind of rhetoric of which law is a species is most usefully seen not, as rhetoric usually is, either as a failed science or as the ignoble art of persuasion, but as the central art by which community and culture are established, maintained, and transformed. So regarded, rhetoric is continuous with law, and like it, has justice as its ultimate subject”(p684). Rhetoric and law are inherently connected, as rhetoric creates the law and the law is established through rhetoric. Frost (2005) discusses the historical misunderstanding of the impact of rhetoric on the law, as it transforms itself in response to forces beyond the law. Frost writes, “But because classical rhetoric is an adaptable and, above all, a practical discipline, it always manages to survive and reestablish its original identity as an extremely effective tool for analyzing and creating legal discourse”(p2). Rhetoric was the method to which law was created, and legal discourse is built upon rhetorical theory.Hasain examines the constitutive relationship between rhetoric and law as a tool to understand motivations and power relationships within a rhetorical world. Hasain (1994) writes, “Within the legal community, issues of race, class, and sexual preference are no longer considered questions that can be answered by appealing to some neutral, legal process that operates independently of the vagaries of the everyday world”(p45). While rhetoric constitutes the law, rhetoric also can be used as a tool to critique the sociological issues that arise when using a seemingly ‘neutral’ legal process. Hasain continues, writing, “Deploying critical legal rhetorics means that we attempt to decode the privileged judicial opinions while simultaneously engaging in an empathic criticism that takes a stance in spite of the fact that we recognize the sense in which the stories of localized victims constitute a form of ‘subjugated knowledge’”(p54). Because the law is inherently rhetorical, there is always an underlying motivation of legal discourse that critics should examine in order to control the impact of the law on society.I do not believe that a constitutive view of rhetoric and law is one that bends towards justice. Because the law is rhetorical and can be viewed through multiple lenses with multiple perspectives, there is no truth. Legal rhetoric then becomes a race to see who may persuade the probable in the most effective way. Truth may be a motivation for some legal discourse, but justice can be buried underneath the need to succeed. I believe the only way a constitutive view of rhetoric and law can bend toward justice is to consistently be criticizing the legal discourse as described by Hasain. Justice is meant to take into consideration all viewpoints, including the historical oppression of certain groups and critiquing the systems that allow it to continue. From the classical rhetorical theory perspective, justice is not present, only talent.

Frost, Michael H. Introduction to Classical Legal Rhetoric: a Lost Heritage. Ashgate, 2005.

White, James Boyd. “Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life.” The University of Chicago Law Review, vol. 52, no. 3, 1985, p. 684., doi:10.2307/1599632.

Commentary:

This midterm was a great assessment of what we had learned thus far in the semester. By analyzing the two different approaches to legal rhetorical theory, I was able to see their differences and analyze their importance. I believe I have a great grasp on classical vs. critical legal rhetorical theory, but wished I had more time to include more evidence from the sources. I would also have polished up my aims statement to a more focused argument.

#midterm

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marysrhetoricportfolio-blog · 6 years

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Week Four

I. Consider the art of inventing legal arguments that is theorized by both Aristotle's Rhetoricand the anonymous ad Herennium. With Frost--still focusing on Chapters 2 and 4, and the primary texts as your resources, identify the following:

1. The material topics of invention for ethos and pathos

2. The material topics of invention for legal rhetoric, or forensic (sometimes called)

3. The common topics for inventing arguments (across all genres)

How do you see these topics of invention working in legal case studies?

If you have time and want to advance your study, please respond to the following prompts:

II. Consider what Aristotle has to say about law as an inartistic means of proof:

1. How does Aristotle define law? Written and Universal?

2. What are the various means of invention available to rhetors for arguing about the law?

3. Would Aristotle and James Boyd White agree or disagree about the rhetorical constitution of law?

Original Response:

Pathos- emotions; Aristotle suggests using emotion to deliberately persuade a judge and jury’s emotions (Frost, p61). Rhetors must pay close attention to the temperament and psychology of the judge. Storytelling; its important for the person making the argument to use storytelling techniques to pull in the audience and essential make them care. Ethos-Point of View; one must take into account a judge’s point of view when making an argument, meaning his beliefs, culture, and class background. Virtues and Vices. Projection--outward image of having good ethos is more important than actually possessing it (Frost, p67). These include virtues such as intelligence, character and good will.

Audience-oriented; it is important to focus on the audience and tailor one’s argument to their needs. This includes both the judge and the jury members. Credibility; the credibility of the lawyer or rhetor is essential in legal rhetoric because the audience will trust a more credible source. Probability; the goal for legal rhetors is to persuade the audience on what are the probable reasons for the situation. Other material topics include laws, witnesses, contracts, tortures, and oaths.

Ethos, Pathos and Logos; the essential topics of inventions within all arguments. These are used within all rhetorical genres. Depending on the audience and setting, one must discern which artistic proof they should harness the most to persuade the audience in the best way. More/Less; Past fact/Future Fact; Possible/Impossible; Genus/Species; Whole/Parts; Subject/Adjuncts; Similarity/Difference; Cause/Effect; Antecedent/Consequence.

These topics of invention work in legal case studies by the construction of arguments both by prosecutors and defense attorneys. By using pathos, ethos, logos, storytelling, projection, credibility, etc, lawyers persuade their audience to support what they argue is the most probable reason for their case. For example, in the Brock Turner case, his lawyers have created an argument that the word “dumpster” used over and over has persuaded the jury in a negative way for Brock Turner, using pathos and the creation of what is possible, or probable, in the world.

#week four

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marysrhetoricportfolio-blog · 6 years

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Week One

Please read Boyd White, Frost, and Anapol essays on Blackboard and respond the following question: Why is the study of rhetoric and law important to living democratically and justly? Give what you think are the top 3 reasons based on your reading of Boyd White, Frost, and Anapol.

Read across various social media platforms for news of the day, and find stories related to top legal issues or justice issues. Post links to the top 3 stories that interest you and explain a bit about why each is of interest to you as a rhetoric student. Here are 4 that can serve as examples of what you might look for, basically stories about law, justice, arguments involved in various legal cases, etc. If any of these stories interest you, include them in your post with a brief on why:

https://www.npr.org/2018/01/14/578010819/recy-taylor-s-rape-still-haunts-us?utm_source=npr_newsletter&utm_medium=email&utm_content=20180118&utm_campaign=npr_email_a_friend&utm_term=storyshare

http://wapo.st/2mFKeMf?tid=ss_mail&utm_term=.98cb61af6875

https://www.wvgazettemail.com/news/legislative_session/election-redistricting-bill-goes-to-wv-house-subcommittee/article_cd8bf776-2a9c-58e8-ae09-27148be9c58b.html?utm_medium=social&utm_source=email&utm_campaign=user-share

https://www.npr.org/2018/01/18/578612534/accusations-of-frat-house-behavior-trail-la-times-publisher-s-career?utm_source=npr_newsletter&utm_medium=email&utm_content=20180118&utm_campaign=npr_email_a_friend&utm_term=storyshare

Original Post

Rhetoric and law are undoubtedly intertwined from their conception. As a democracy, these two are imperative in creating a just system, and living more democratically. One of the reasons for this is the depoliticized nature of rhetoric and law. Because there is no agenda (supposedly) and no black and white moral code, rhetoric allows for the ability to see every side in an argument.

One of the most important ideas followed in a democratic court of law is that everyone is innocent until proven guilty. James Boyd White writes in his article, “So regarded, rhetoric is the art of establishing the probable by arguing from our sense of the probable. It is always open to replacement by science when the truth or falsity of what is now merely probable is finally established” (p687). Rhetoric makes sure that every possible outcome, everything that is probable, therefore allowing justice to take place. By representing all sides of a case, the legal profession is more democratic and just.

https://www.reuters.com/article/us-usa-opioids-litigation-newyorkcity/new-york-city-sues-drug-companies-over-opioid-epidemic-idUSKBN1FC2GK?feedType=RSS&feedName=businessNews&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+reuters=undefined%2FbusinessNews+=undefined%28Business+News=undefined%29=undefined

This article really interests me because of the laws pertaining drug offences and how they have become a political issue rather than a health issue. How does the rhetoric for these laws change the way the laws are treated?

https://www.npr.org/sections/thetwo-way/2018/01/19/579185667/las-vegas-police-no-further-arrests-in-october-massacre-and-no-motive

Gun laws and regulation have always been an interest for me, especially how the rhetoric between the original second amendment law differ from the laws made today.

https://www.nbcnews.com/news/us-news/satanic-temple-challenges-missouri-s-abortion-law-religious-grounds-n839891

Reproductive rights are an important issue that has become, again, from a health issue to a political issue. However, this is an interesting story because it’s the opposite argument--that the waiting period does not abide to their religion. Very interesting intersection between religious law and abortion law.

Commentary

While my original post provides a great point of the connection of rhetoric and law, I had failed to see the constitutive nature of rhetoric and the law. Law is “an art of constituting culture and community” (692); it is the exercising of constitutive rhetoric that engages with meaning-making and community-building. Rhetoric is the basis on which not only law, but the world around us is built upon. However, I believe my earlier claim of rhetoric and law being depoliticized is naive based upon our further discussion of critical legal rhetorical theory. Rhetoric is used to create a reality that can inherently disadvantage certain groups of people, and while the law is supposed to be just, there is a constant critique that must be made to keep it that way.

#week one

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