Remediating and Reviewing Peer Arguments

In his book On the Contrary, rhetoric scholar Thomas Sloane writes, ”Rhetorical thought is—let us admit it—highly perverse and lawyerly in nature.” In this statement, Sloane not only alludes to the closely intertwined history of rhetoric and law from the earliest days of Western thought to the modern era, but highlights the shared promotion by both of these fields of an agonistic “art of controversy” which seeks to facilitate controversy through the practice of arguing both sides of a case, a practice classical rhetoricians called in utramque partem (“on either side”). The principal theorists of classical Greek and Roman rhetoric promoted agonistic contests in which speakers argued opposite sides of disputed issues, often with specifically judicial contexts in mind, and the American legal system’s adversarial system of justice is founded on a contest of accusation and defense between parties in which each seeks to persuade a judge or jury of disputed issues on opposite sides of a case. 

Despite the close relationship between rhetoric and law, however, and the fact that the lawyer remains, in the words of legal scholar James Boyd White, “the modern rhetorician in its purest form,” the modern professionalization of law has frequently attempted to deny or repress the rhetorical aspects of legal discourse and the agonistic conflict on which the adversarial system of justice is founded. Instead, modern law has promoted a view of legal discourse as a value-neutral “science” based on logical deduction and immune to social and political influence. This paradoxical relationship between law and rhetoric in modern legal discourse has produced a recent revival of questions about modern law’s denial of rhetoric, including important questions about the role of character and emotion in legal argument, the role of narrative in the analysis of legal evidence, the effect of the adversarial system of justice on social cohesion and division, and the relationship of legal rhetoric to democracy, coercion, and violence.

We’ll study these questions by first examining the forms of argument used in the legal profession today, focusing on arguments regarding the interpretation of circumstantial evidence in legal cases and the analogical, or case-based, form of legal argument known as “legal reasoning” which is used to argue for or against the application of judicial precedent to new cases. Specifically, we’ll study arguments regarding the evidence in controversial trials such as the 1976 Patty Hearst trial, the 1982 Lindy Chamberlain (“Dingo”) trial, the 1992 Randy Weaver (“Ruby Ridge”) trial, and the 1994 trials of Damien Echols, Jessie Misskelley, Jr., and Jason Baldwin (the “West Memphis Three”), as well as arguments and judicial opinions in U.S. Supreme Court cases regarding the Fourth Amendment’s search and seizure clause and the minimum standards of effective legal advocacy found in the Sixth Amendment’s right to assistance of counsel. After examining the forms and purposes of legal rhetoric as it is actually employed in the legal profession, we’ll then consider contemporary critiques of the adversary system and the agonistic rhetoric on which it depends, including critiques implicit in public perceptions of the legal system and cultural representations of lawyers.