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Abstract:
When a computer and a connection to the Internet allow almost anyone to claim to be a journalist, the question of who should be covered by media shield laws becomes especially difficult. Based on the premise that it is important to preserve the journalist's privilege and to accommodate the "unmedia" if that can be done without undermining journalism's values, this article suggests that the best way to limit the journalist's privilege is not to define "who is a journalist?" or "what is news?" Instead, the privilege should extend protection to anyone who is engaged in the work process of journalism.

Drawing on the profession's standards, the article proposes that an individual is "engaged in journalism" when the writer is involved in a process that is intended to generate and disseminate truthful information to the public on a regular basis. The article identifies key elements of the newsgathering process that can be judged objectively, and without undue intrusion into the editorial process, no matter who uses them or in what medium.

Media shield law, journalist's privilege, First Amendment privilege, newsperson's privilege, state shield statutes

Abstract:
This article argues that better understanding of metaphor's cognitive role can help lawyers shape judicial decision making. As a way of exploring metaphor's contribution to shaping the law, the article focuses on how a particular lawsuit was influenced by metaphor, in particular, by the primary metaphor that a corporation is a person within the more complex metaphorical system suggested by the marketplace of ideas model for First Amendment protection. After describing the cognitive theory of metaphor and examining the metaphors underlying First Amendment protection for corporate speech, the article analyzes the use of metaphor in the briefs filed in the U.S. Supreme Court in a lawsuit brought by a consumer activist against Nike, Inc. Following that analysis, the article concludes with a series of recommendations for practicing lawyers.

cognitive theory, metaphor, commercial speech, corporate speech, First Amenment, Nike, corporation is a person, marketplace of ideas

Abstract:
This article proposes that law students may find a better fit within the legal culture of argument if they are introduced to rhetorical alternatives to counter narrowly formalist and realist perspectives on how the law works and how judges decide cases. To support this proposal, the article describes and evaluates an upper-level elective course in Law & Rhetoric, which I have offered at two law schools since 2003.

The article makes a two-part argument: first, introducing law students to rhetorical alternatives allows them to envision their role as lawyers as constructive, effective, and imaginative while grounded in law, language, and reason. Second, offering rhetorical alternatives allows law professors to enrich their own study and teaching and to develop a more nuanced understanding of the law school classroom as a rhetorical community. Set next to popular depictions of formalism and realism (which live on, despite much criticism), rhetorical alternatives would look at how the law works by exploring the meaning-making process through which the law is constituted as human beings located within particular historical and cultural communities write, read, argue about, and decide legal issues.

Most students recognize the practical benefits of the course in Law & Rhetoric; they conclude that the course helps them become better rhetoricians because they are more aware and adept legal readers and writers, and they believe that better rhetoricians become better lawyers. I think this recognition that better rhetoricians become better lawyers carries with it something more profound: rhetorical alternatives recognize students’ power and ability to affect outcomes in their rhetorical communities, both now, while they are law students, and later, when they are practicing lawyers. From the rhetorical point of view, law students, law teachers, and lawyers are human actors whose work makes a difference because they are the readers, writers, and members of interpretive and compositional communities who constitute the law.

rhetoric,rhetorical community, law as rhetoric, law school teaching, legal education

Abstract:
We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing "a sea-change," family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income.

This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, the article's aim is to help advocates make room for difference and diversity in the lives of families.

The rhetorical analysis indicates that the best interests of the child standard fails to explain child custody outcomes, and it suggests that the cognitive setting for custody disputes - cluttered with outmoded metaphors, simplistic images, and unexamined narratives - interferes with the ability of judges to attend to complex and radical transformations of parent and child relationships. The article proposes that practicing lawyers and scholars use rhetorical analysis first to uncover the symbols and stories that affect judicial decision making and then to construct arguments that may overcome deeply rooted constraints, help individual clients, and persuade policy makers.

rhetoric, rhetorical analysis, critical theory, cognitive theory, metaphor, narrative, family law, child custody, legal writing

Abstract:
This Article examines the metaphorical and metonymical framing of corporate money in Supreme Court decisions about campaign finance regulation. Metaphorical influences (corporation as a person, spending money as speech, marketplace of ideas as the model for First Amendment analysis) affected early decisions about the regulation of corporate spending in election campaigns. Later, a metonymical move to isolate corporate money and then to focus on its malevolent tendencies displaced the earlier view of corporate money as speech. This movement was best depicted in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the Supreme Court's 2003 decision on the Bipartisan Campaign Reform Act of 2002 (BCRA). In McConnell, a majority of the Court severed corporate money from the concepts of corporate speech and political participation in election campaigns and focused instead on corporate money's potential to corrupt lawmakers, buy influence, flood the market, and distort the election process.

Since McConnell, another shift in perspective has occurred. In June 2007, the Supreme Court upheld an as-applied challenge to BCRA, casting doubt on the eventual fate of the holding in McConnell that a pre-election prohibition on electioneering communications funded by corporations and unions did not violate the First Amendment. In McConnell, the Court upheld the ban against a facial challenge, but Wisconsin Right to Life later challenged the provision as applied to the anti-abortion group. The three-judge panel authorized to hear constitutional challenges to BCRA eventually held (2-1) that the ban on electioneering communications violated the First Amendment as applied to the advertisements sponsored by a nonprofit ideological advocacy corporation, and in Federal Election Commission v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007), the Supreme Court agreed (5-4), with Chief Justice John Roberts., Jr., and Justice Samuel Alito, Jr., in the majority. In McConnell, Justice O'Connor, since replaced by Chief Justice Roberts, had supported the ban; Chief Justice William Rehnquist, since replaced by Justice Alito, did not.

This Article illustrates and assesses the rhetorical choices in the debate about how to view corporate participation in election campaigns. Choices among different ways of portraying the target of governmental action affect judicial, lawyerly, and public understanding, reasoning, and evaluation. Competing rhetorical moves appear to lead to different results: the marketplace of ideas in which corporations speak goes unregulated for First Amendment purposes, while the corporate money from which potential evils flow must be regulated to protect the election process. Courts may find it useful to behave as if these outcomes are determined by neutral principles, but it may be only the frame selected that makes it appear to be so.

campaign finance, campaign finance reform, campaign finance regulation, corporate money, corporate spending, corporate speech, commercial speech, First Amendment, marketplace of ideas, metaphor, metonymy, rhetoric

Abstract:
Applying New Rhetoric to law school pedagogy, this article suggests an ebb and flow of reader and writer, text and context drawn from New Rhetoric theory, research, and teaching practices. Almost all legal writing scholarship now focuses on some aspect of New Rhetoric. Yet it is likely that the product approach still prevails in the places where the papers are graded, in part because it is the more familiar and straightforward way that papers have always been graded. What follows is an initial attempt to more fully apply New Rhetoric theory and research to the teaching of legal reading and legal writing. The overall goal of the teaching practices described in the article is to encourage students to view their early readings and writings as tentative drafts that are open to change; to build in pauses when the student-as-reader or the student-as-writer can reflect on current meanings, goals, and plans; and to give students contextually based rhetorical choices to move forward. The article includes advice on reading reflectively, as expert readers do; on writing reflectively, by keeping a reflective journal; on planning in writing, through the zero draft; and on the many phases of revision, including the use of peer writing and reading groups.

New Rhetoric, legal education, pedagogy, legal writing, legal writing scholarship, legal reading, peer groups

Abstract:
Like most writing teachers, the legal writing teacher believes that his reading and response to student work is the most important thing he does, an importance that is underscored by the amount of time it takes. Yet, despite its importance and the hours it consumes, the rhetoric of teacher reading and writing remains relatively unexplored. This article proposes that we begin to apply what we have learned about student reading and writing to our own reading and writing. Our process of reading and responding to student work should be as reflective and rhetorical as the reading and writing process that we suggest for our students. As we read, write, and comment, we should be conscious of the movement of our students and ourselves from meaning to text to reader to writer and back; we should focus as much on planning, monitoring, and revising our own reading and writing as we do on communicating our interpretations of student work; and we should use our own reading and writing experiences to reflect on and respond to what our students are doing.

reflection, reflective teaching, legal reading, legal writing, teacher commenting, rhetorical model

Abstract:
Reporter's Notes on "A Liberal Education in Law: Engaging the Legal Imagination through Research and Writing Beyond the Curriculum."

best practices, legal education, compositional, liberal education, legal imagination