Rhetoric 375: Legal Rhetoric
Spring 2010
Monday-Wednesday-Friday 1:10 – 2:00
Center 300
Professor: Todd McDorman
Office: FA209
Phone: 361-6183 (O)
E-mail: mcdormat@wabash.edu
361-5807 (H)—do not call after 9 p.m.
Office Hours: MWF 10:00-11:00; T 11:00-Noon. I will generally be in my office much of each
day (except for Thursday afternoons); you’re free to drop by.
Course Description: This course examines the law from a rhetorical perspective. While that can
mean many different things, we will primarily examine the rhetoric of Supreme Court opinions,
develop approaches to studying these opinions, and consider the social ramifications of Supreme
Court rhetoric. We will proceed from the perspective that a legal ruling is the beginning, rather
than the end, of the social life of the law, and the course is as concerned with the social
repercussions that result from court decisions as the decisions themselves. The primary focus of
the course is on the production of a significant rhetorical analysis of a Supreme Court
decision/legal controversy of your choosing.
Objectives and Goals: This course should expand your knowledge and understanding of a range
of fields and subjects, including:
1. an understanding of how the law works as a rhetoric of power
2. a familiarity with the conventions of legal decision making
3. an expanded understanding of the Supreme Court
4. an understanding of the social implications of legal decisions
5. This course should also supplement skills and modes of thought you have developed
in other courses at Wabash College. Specifically you should develop critical thinking
skills in relation to legal decision making, advanced ability in rhetorical criticism, and
improved writing and research skills.
Course Readings are available via Moodle
Course Policies and Assignments
I hope this proves to be both a valuable and interesting course. In the scheme of society, few
people actually sit down and read Supreme Court opinions—even fewer do so without a law
degree. As such, I expect this to be a challenging course, but I also suspect it will give you a
new perspective on “the law.” The reading in the course is sometimes heavy, but the number of
assignments is relatively few. As a result, I am expecting a good deal of effort in the few
assignments you do have in the course—don’t attempt to write either version of your essay in a
night—or even over a weekend—that simply won’t be enough time.
2
Assignments:
Discussion and Attendance
Appeals Case Reaction
150 points
50 points
Context Essay and
Presentation
150 points
Quizzes and Exams
125 points
Case Criticism Project
Proposal
Essay 1
Final Essay
Presentation
Peer critiques
50 points
125 points
200 points
100 points
50 points
Discussion and Attendance: This is a discussion based class in which your participation and
attendance are not merely encouraged but expected. For the most part, this class will not be
lecture based. I will provide relevant context, some rhetorical, legal, historical, and social
explanations, and questions for discussion. You will also find yourself leading class when you
do your case context presentation. The class should be a forum for the discussion of a variety of
issues and will not be rewarding to you or me if I am consistently forced to espouse my
philosophy of law and rhetoric.
You are permitted three absences during the course of the semester. Additional absences will be
excused if the proper documentation (such as a Dean’s Excuse, a note from the health center,
etc.) is provided. It is much easier to address attendance issues (illnesses etc.) as they develop
than it is when you return from a two week absence during which you made no effort to contact
me. Stuff happens, students sometimes have to miss class, together we should be able to deal
with it.
A special note on H1N1 and the seasonal flu: It is likely that we will experience another flu
outbreak in the spring semester. You need to save your absences to account for this possibility
and you need to be sure to not come to class if you appear to have the flu. I have an infant at
home and he is more susceptible to complications from the flu. You bring the flu to me and I
might take the flu home to him. If you have not already done so, I encourage you to get flu
vaccinations.
Appeals Case Reaction: One of your course assignments is to write a reaction to the Indiana
Court of Appeals case that will be held on campus on Thursday February 25 at 3:00. For this
assignment you are asked to write a 3 paged typed (double spaced) reaction to the case. You
should explain how you feel the case should be decided and why, addressing the key legal issues.
This assignment must be submitted on time because it will serve as the topic of class discussion
for class on Friday February 26.
3
Case Context Essay and Presentation: You will write a 6-8 page case context essay and make
a 15 minute oral presentation about the historical/social/legal circumstances and ramifications of
a Supreme Court case on the course syllabus. This will most likely be done with another member
of the class.
This assignment does not ask you to summarize the legal findings of the case (which we will
discuss as a group), but instead asks that you consider factors such as: the social pressures that
brought the issue to light, its legal precedents, the context of the issue under review by the Court
and its importance, Court dynamics in reaching a decision, and its subsequent social and legal
implications. The presentation is a way of orienting the class to the important legal and social
dimensions of the issue and will lead us into discussion. You also might consider emailing
discussion questions to the class in advance of your presentation, and subsequent to your
presentation you will be expected to help lead the class discussion.
I encourage you to submit a preliminary essay one week prior to the presentation so that I may
review it and provide suggestions for revision and for the presentation. The essay and oral
presentation should use at least 5-7 sources that go beyond those used in the course (although
you are welcome to draw on course materials as well)—and I note that the Internet is generally a
poor source for this assignment. You want to visit the library (book) catalogue, particularly
since the library has acquired a number of books on course topics since I began teaching this
class.
Ultimately this assignment should give everyone in the class additional insight into the
circumstances of each case and controversy. This material may appear on course quizzes and
exams.
Quizzes and Exams will account for 125 points (12.5%) of the course grade. There will be one
exam, while a quiz (or quizzes) is possible depending on my perceptions of your care in reading
course material. The quiz or quizzes will primarily contain short answer and fact-based
questions drawn from the Supreme Court opinions and rhetorical analyses we read, lectures,
discussions, and student presentations. The exact form of such quizzes is uncertain—they may
be announced in advance and taken in class or they may be “pop” quizzes. While the course
exam is likely to include similarly formatted questions, it is more likely to have an essay focus.
Case Criticism Project: The bulk of your energy in the course will be devoted to developing a
substantial rhetorical critique of a Supreme Court case. As you read the case analyses during the
course, you will find that there are a variety of approaches and perspectives you might apply
(you might also draw from rhetorical perspectives or methods you have learned in other rhetoric
courses). This will be a research essay and will require you to draw from Supreme Court cases,
communication journals, historical studies, and law review articles. The project consists of four
parts:
Proposal: The first aspect of the project is a proposal. The proposal will likely be
arranged as follows: (1) a one paragraph explanation of the case you wish to select and why it
interests you; (2) a paragraph explanation of the case’s legal-social importance; (3) an
approximately two-paragraph explanation of rhetorical theory, methods, or concepts that appear
4
relevant for your critique; (4) an approximately three paragraph explanation of features of the
rhetoric in the ruling that are worth examining (specific arguments, terminology, and vocabulary
for instance). It seems obvious to me but, you must read your case prior to writing the proposal
and then write the proposal with specific references to the text. You will also be required to turn
in a copy of the case with your proposal (I will keep this copy and use it while evaluating the
entirety of your project). NOTE: Only one student may critique each case—I will approve
selections on a first-come-first-served basis. The proposal is due Friday February 19.
Essay 1: On Monday March 15 your first critique of your selected case is due. This is
not a rough draft. This is expected to be a complete and polished essay. In this essay you will
offer a rhetorical analysis of a case. There is not one set formula to use in approaching the
project—the perspective you adopt will vary depending on the case and your interest. Again,
several of the essays we read in class will be good models. You might critique a certain
language technique in the case, you might critique the argument in various opinions, you might
critique the use of history/precedent etc. but regardless this critique must be rooted in rhetorical
theory. In general your essay will consist of:
Introduction and statement of thesis/argument
Context of case and explanation of rhetorical method
Application of rhetorical perspective and critique of case
Conclusion
The essay should be 10 to 15 pages in length. It will require outside research to support your
rhetorical, legal, and historical contentions although I am not specifying a specific number of
sources. The essay should be well written and conform to an accepted style manual [If you fail to
use a style such as MLA, APA, or Chicago, you will receive a one letter grade deduction on your
essay]. You are expected to make an argument in this essay as to how the case can and should
be read—and any good argument needs support (it cannot simply be asserted).
Final Essay: Your final essay is due Monday April 26. It should represent a significant
revision, extension, and development of your original essay. In argument, research, and writing
it should be worthy of convention presentation. The format will likely closely resemble your
first essay, with one notable exception. This essay must explicitly consider the social
implications of the ruling. That is it must reflect on what sort of world is created by the ruling
and, perhaps, even how the public responded to the ruling. This reflection will likely be included
as an additional section between the case critique and the conclusion.
The essay should be 20 to 25 pages in length and composed in a clear, engaging style. Both the
writing and the research should be advanced from the original essay, particularly in terms of the
social/legal implications of the case.
Presentation: The semester will conclude with a presentation of your research. This will
be a 15 minute presentation in which you will make an argument about the case under review.
That argument, rooted in rhetorical analysis, will likely focus on one particularly important
aspect of your essay (you obviously can’t present a 20-25 page paper in 15 minutes). The
criteria for the speech:
Clarity of argument/interpretation of case
Support/Evidence for Interpretation
5
Clear and accurate use of rhetorical concepts
Organization
Extemporaneous delivery—not read! (Maximum of “C” if you read your presentation)
Eye contact
Effectiveness in managing discussion/questions after the speech
Do not use your essay as a manuscript when delivering your presentation.
Presentations will occur during the last two weeks of the semester. Two presentations will be
made in each class session. One week in advance of your presentation, you should provide the
class with approximately 10 pages of reading relevant to the presentation—case syllabus, portion
of the Court’s opinion, or some other document of your choosing. This material will provide
relevant context and help spark questions and discussion. Students are expected to read the
material provided by speakers and it may be used in the final exam.
Late assignments: It is expected that assignments will be completed on time; this is particularly
important for your first essays given when they are due and the peer critiques that follow. You
are, of course, always welcome to turn your essays in early! I will work with you on
problems—but you must work with me. If a problem arises contact me as soon as possible—it is
much easier to correct a situation in advance than to attempt to devise a solution after the fact. If
it is an appropriate hour, call me; you can always send me an email. Late papers will be assessed
a penalty of 10% for each day late. It is critical that your “case context presentation” be
presented on the day assigned because otherwise it disrupts the class schedule.
The Gentleman’s Rule is in effect in this class. Its relevance is two-fold. First, you should treat
all those in our classroom with gentlemanly respect. People in this class obviously have
differing beliefs and views; your comments should engage but not demean those views. Second,
all work you produce should be both your own and original for this class. You should be
familiar with the meaning of plagiarism and academic dishonesty. Copying material without
appropriate citation, cheating during a quiz/exam, submitting material you previously did for
another course, and submitting an essay which does not represent your own original work are
four examples of which you should be aware. If you have any questions or doubts about the
permissibility of a practice or conduct please discuss it with me.
Cell phones and other electronic devices: Your cell phone should be off during class. Setting
your phone on vibrate does not constitute it being off—some vibration settings are easily noticed
and if the phone vibrates across the desk it is a distraction. If your cell phone rings during class, I
will be unhappy; if it rings while a student is giving a presentation you will lose one letter grade
off of your own presentation of the given assignment. You should not read or send text messages
during class. If you are doing so there will be a repercussion ranging from a loss of attendance
points to being asked to read the message for the class to having to bring in candy for the class.
Cell phones and other electronic devices must be turned off and put away (i.e. they cannot be on
your desk or in a place where they are visible to you or others) during any quizzes and the course
exam.
Organization: Essentially, the course is organized in four units. The first unit orients you to the
study of legal rhetoric. The middle units examine cases related to specific areas of
6
legal/social/rhetorical concern: race/civil rights and personal liberty or freedoms. The final unit is
a discussion of student research.
This is a tight but flexible schedule—sometimes we will linger on a topic; and it is possible that
we will elect not to cover a topic. It is crucial that you listen carefully each class for what the
topic and reading will be for the following class session.
Preliminary Schedule of Classes
Date
Topic
Reading/Due
I. The Supreme Court and the Rhetoric of Law
M Jan. 18
Course Introduction
Syllabus
U.S. Constitution
W Jan. 20
The History of the Supreme Court
Discuss Case Context Assignment
Irons
F Jan. 22
The Work of the Supreme Court
O’Brien
McLauchlan
M Jan. 25
Legal Perspectives on
Legal Rhetoric
W Jan. 27
Rhetorical Perspectives on
Legal Rhetoric
F Jan. 29
No Class: Student Research Celebration
M Feb. 1
Rhetorical Persp. Continued
Project Introduction
Prentice, “Supreme Ct Rhetoric” [pp. 85-102]
White, “Law as Rhetoric"
White, “Judicial Criticism”
Lucaites, “Between Rhetoric . . .”
Scallen, “Judgment, Justification”
Hasian, “Critical Legal Rhetorics”
II. Rhetoric and Race in the Law
W Feb. 3
Context of Dred Scott (1857)
Discussion
Taney Opinion
F Feb. 5
Continue Dred Scott
Nelson and Curtis Opinions
M Feb. 8
Conclude Dred Scott
W Feb. 10
Context of Plessy (1896)
Discussion
McDorman, "History, Collective Memory and
the Supreme Court"
Plessy v. Ferguson
7
Date
Topic
F Feb. 12
Continue Plessy
M Feb. 15
Conclude Plessy
Discussion of Project Proposals
W Feb. 17
Context of Brown
Discussion
F Feb. 19
Continue Brown I & II
M Feb. 22
Context of Grutter v. Bollinger (2003)
Discussion
W Feb. 24
Continue Grutter
Reading/Due
Hasian, Condit, Lucaites, “Rhetorical Boundaries”
Brown I (1954) and Brown II (1955)
Prentice, “Supreme Ct. Rhetoric” [pp. 102-22]
Project Proposals Due
Case Syllabus and O’Connor Opinion
Excerpts from Scalia and Thomas dissents
Thursday February 25 at 3:00 in Goodrich Room of Lilly Library
Indiana Court of Appeals Oral Argument
F Feb. 26
Discussion of Oral Argument
Appeals Court Reaction
III. The Law and the Personal Freedoms
M Mar. 1
Context of Korematsu v. U.S. (1944)
Discussion
Opinions from Black and Frankfurter
W Mar. 3
Continue Korematsu
Roberts, Murphy, and Jackson dissents
F Mar. 5
Conclude Korematsu
Rountree, "Instantiating 'The Law'"
Spring Break
M Mar. 15
Context of Buck v. Bell (1927)
Discussion
Buck v. Bell
Essay 1 Due
W Mar. 17
Continue Buck v. Bell
F Mar. 19
Peer Critique Meetings
M Mar. 22
Context of Cruzan
Discussion
W Mar. 24
Continue Cruzan
Brennan and Stevens dissents
F Mar. 26
Analysis of the Right-to-Die
McDorman, “Controlling Death”
Hasian & Croasmun, “Legitimizing Function”
Cruzan v. Missouri Dept. of Health (1990)
Rehnquist majority, Scalia concurrence
8
Date
Topic
Reading/Due
M Mar. 29
Tentative: Baxter v. Montana
Baxter (Montana Supreme Court, 2009)
W Mar 31
Context of Roe v. Wade (1973)
Discussion
Syllabus and Blackmun Opinion
F Apr. 2
Continue Roe
Rehnquist dissent
M Apr. 5
Context of Casey
Discussion
Planned Parenthood v Casey (1992):
O'Connor, Kennedy, Souter Opinion
W Apr. 7
Continue Casey
Concurring and Dissenting Opinions
F Apr. 9
Crawford v. Marion Co. Election Board (2008)
M Apr. 12
Continue Crawford
Souter and Breyer Dissents
W Apr. 14
League of Women Voters v. Rokita
(Indiana Court of Appeals, 2009)
Read Opinion
F Apr. 16
Indiana Solicitor General Tom Fisher ‘91
M Apr. 19
The Court of Tomorrow
Stevens Opinion
Toobin, 323-340 (BB)
IV. Student Scholarship
W Apr. 21
Presentations
As selected by presenters
F Apr. 23
Presentations
As selected by presenters
M Apr. 26
Presentations
As selected by presenters
Final Essay Due
W Apr. 28
Presentations
As selected by presenters
F Apr. 30
Presentations
As selected by presenters
Final Exam: Friday May 7 at 1:30
9
RHE 375 Spring 2010
Course Bibliography
Brown v. Board of Education of Topeka Kansas et al. 347 U.S. 483 (1954).
Brown v. Board of Education of Topeka Kansas et al. 349 U.S. 294 (1955).
Buck v. Bell, Superintendent 274 U.S. 200 (1927).
“The Constitution of the United States: A Transcription.” The U.S. National Archives &
Records Administration. <http://www.archives.gov/national-archivesexperience/charters/print_friendly.html?page=constitution_transcript_content.html&title
=NARA%20%7C%20The%20Constitution%20of%20the%20United%20States%3A%20
A%20Transcription> 3 January 2008.
Crawford v. Marion Co. Election Board 553 U.S. ____ (2008).
Cruzan v. Director, Missouri Department of Health 497 U.S. 261 (1990).
Grutter v. Bollinger 539 U.S. 306 (2003).
Hasian, Marouf Jr. “Critical Legal Rhetorics: The Theory and Practice of Law in a Postmodern
World.” Southern Communication Journal 60 (1994): 44-56.
Hasian, Marouf Jr., Celeste Michelle Condit, and John Louis Lucaites. “The Rhetorical
Boundaries of ‘the Law’: A Consideration of the Rhetorical Culture of Legal Practice and
the Case of the ‘Separate But Equal’ Doctrine.” Quarterly Journal of Speech 82 (1996):
323-42.
Hasian, Marouf Jr., and Earl Croasmun. “The Legitimizing Function of Judicial Rhetoric in the
Eugenics Controversy.” Argumentation and Advocacy 28 (1992): 122-34.
Irons, Peter. A People’s History of the Supreme Court. New York: Viking, 1999, 85-92,
101-07.
Korematsu v. United States 323 U.S. 214 (1944).
League of Women Voters of Indiana v. Rokita No. 49A02-0901-CV-40, Indiana Court of
Appeals (2009).
Lucaites, John Louis. “Between Rhetoric and ‘The Law’: Power, Legitimacy, and Social
Change” [Selections]. Quarterly Journal of Speech 76 (1990): 445-447.
McDorman, Todd F. “Controlling Death: Bio-Power and the Right-to-Die Controversy.”
Communication and Critical/Cultural Studies 2 (2005): 257-279.
McDorman, Todd F. "History, Collective Memory and the Supreme Court: Debating “the
10
people” through the Dred Scott Controversy. Southern Communication Journal 71
(2006): 213-234.
McLauchlan, William P. “Opinions, Assignment and Writing.” The Oxford Companion to the
Supreme Court of the United States. 2nd Edition. Ed. Kermit L. Hall. Oxford: Oxford
UP, 2005. 705-706.
O’Brien, David M. “Chapter Five: Deciding Cases and Writing Opinions.” Storm Center: The
Supreme Court in American Politics. 6th Ed. New York: Norton, 2003. Selections ( 234241, 248-259, 288-291, 300-308).
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992).
Plessy v. Ferguson 163 U.S. 537 (1896).
Prentice, Robert A. "Supreme Court Rhetoric." Arizona Law Review 25 (1983): 85-122.
Roe v. Wade 410 U.S. 113 (1973).
Rountree, Clarke. "Instantiating 'The Law' and its Dissents in Korematsu v. United States: A
Dramatistic Analysis of Judicial Discourse. Quarterly Journal of Speech 87 (2001): 1-24.
Scallen, Eileen A. “Judgment, Justification and Junctions in the Rhetorical Criticism of Legal
Texts.” Southern Communication Journal 60 (1994): 68-74.
Dred Scott v. Sandford 60 U.S. (19 How.) 393 (1857).
Toobin, Jeffrey. The Nine: Inside the Secret World of the Supreme Court. New York:
Doubleday, 2007. Chapter 25 and Epilogue
White, James Boyd. "Judicial Criticism.” Justice as Translation: An Essay in Cultural and Legal
Criticism Chicago: U of Chicago P, 1990: 89, 91-93, 98-102.
White, James Boyd. ‘Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal
Life.” University of Chicago Law Review 52 (1985): 684-702.