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Abstract:
The Science of Persuasion is among the first law journal articles to analyze social science data on persuasion and human decision-making and use the data to evaluate the conventions of persuasive legal writing. The primary impetus of the article is that the study of the science of persuasion by persuasive legal writers is long overdue, and that lawyers have an obligation to test and re-examine the traditions and conventions of persuasive legal writing using data and theories from other disciplines.

Although trial lawyers have taken significant steps to study and probe social science for ideas about how to persuade (or pick) juries, appellate lawyers have been slow to follow. Instead, the study of persuasive legal writing has been dominated by a kind of armchair psychology - a set of conventions and practices, handed down from lawyer to lawyer, developed largely from instinct and speculation. By and large, the information available to lawyers about persuasive legal writing reproduces these conventions and practices without analysis or critique, and without taking stock of the growing body of research from other disciplines that would provide some evidence about whether the conventional wisdom is an accurate account of human decision-making.

The Science of Persuasion begins the overdue examination of persuasive theory by analyzing two key concepts: sequential request strategies and audience involvement. Sequential request strategies test whether the content of an initial request can prime the reader to accept a later request. The data about sequential request strategies can inform persuasive legal writing by helping advocates make conscious decisions about the structure of arguments and the crafting of argument chains. Involvement refers to the level of personal relevance or connection felt by the recipient of a persuasive message. The details and nuances of how message recipients respond to appeals to their motivation and investment in the message have the potential to change the way advocates use analogy, policy and emotion in persuasive legal writing. For these two concepts, the article describes and analyzes the social science data and theories and posits how they might inform persuasive legal writing, focusing in particular on how the data might challenge the conventional wisdom of what is persuasive in law. Finally, the article gives concrete examples from appellate briefs to demonstrate how lawyers might incorporate the theories and data into their practice.

legal writing, persuasion, appellate briefs

Abstract:
For a long time, practitioners and scholars have debated whether volunteering negative information in legal advocacy is strategically advisable. Many advocates consider disclosure of information that is unfavorable to the client's case to be inconsistent with the duty of zealous advocacy, while others consider disclosure to be the surer path to victory. The advocates on both sides of this debate rely largely on legal lore to justify their beliefs about what persuades jurors and judges. Even within this vigorous debate, the growing body of scientific research on the subject of persuasion has not played a pivotal role, and in the few instances when the science is mentioned, the nuances and details of it are glossed over.

Playing with Fire changes the nature of the debate by examining in depth the social science studies about disclosure of negative information in a persuasive situation, including all their nuances and complexities. In particular, Playing with Fire is the first law journal article to look at all the major scientific studies in the contexts of law, advertising and politics that examine how an audience reacts to an advocate's voluntary disclosure of negative information. The article applies the results and underlying theories of these studies to the question of disclosure of adverse information in legal advocacy. The result is a deeper, more nuanced picture of how to deal with adverse information than has previously characterized the debate in the legal context.

adverse authority, negative authority, negative material, bad law, bad facts, inoculation, legal advocacy, legal persuasion, social science and law

Abstract:
This article, which was part of a symposium entitled "Dismantling Hierarchies in Legal Education", uses social inequality and feminist theories to demonstrate that American law faculties are stratified into an illegitimate and gendered hierarchy. It critiques the subjective and contrived nature of this faculty hierarchy and the various criteria used to support it. In particular, it focuses on the academy's use (and misuse) of the academic triad of scholarship, service and teaching to maintain inequality among law faculty. Finally, it challenges law professors and administrators to recognize the hierarchy and work toward greater fairness and parity in the legal academy.

Abstract:
This essay is a part of a symposium project by the Harvard Civil Rights-Civil Liberties Law Review that culls together radical proposals for the reform of legal education. In this essay, I argue that courses in law school should integrate skills training, doctrine and theory so that students learn legal doctrine and theory in a practical context. Integrating skills into doctrinal and theory courses will give students a deeper, richer notion of what it means to practice law and think like a lawyer. In short, law school pedagogy should project a model of law practice that both accurately reflects what lawyers do and that opens students' minds to a vision of lawyering as a creative endeavor that involves critical, outside the box thinking. An integrated approach can potentially improve the quality of law practice, enhance lawyers' experience as practitioners, and possibly even change the law itself.

pedagogy, legal education, skills training

Abstract:
In keeping with the mission of J. ALWD, this bibliography focuses on books and articles that tell us something about how to persuade in legal writing. The backbone of the bibliography is scholarship that dedicates itself explicitly to the task of illuminating something about the mysterious phenomenon of persuasion in legal communication. Included here are articles such as those addressing the use of policy arguments, classical rhetoric, and metaphors in legal writing. But also included are articles and books that can tell us something important about persuasion in legal writing but that have, for whatever reason, not discussed writing or law practice explicitly. These include ruminations on argumentation theory, “framing” of legal arguments, and semiotics. Together, they tell a riveting story of how lawyers go about the business of convincing people.

My goal here was to set out a kind of “greatest hits” of persuasion; a starter list for someone who wants to learn more about the topic. In doing so, my focus was on works that analyze persuasion deeply and theoretically, and less so on “how to” lists. This is not a judgment on the utility of the shorter “how to” lists of persuasion, which are valuable tools and eminently useful to both practitioners and academics. But I thought this bibliography should be a celebration of the renaissance of the discipline of persuasion and rhetoric in law and legal writing, and the treatment of persuasion as a theoretical, academic pursuit. So the works that follow are (mostly) those that go beyond a statement of what is persuasive toward a more analytical examination of why or how something persuades.

legal writing, legal rhetoric, persuasion, argumentation theory, framing, classical rhetoric, semiotics, legal communication, metaphor, narrative

Abstract:
While great strides have been made by legal writing professors in the past two decades, many law schools - perhaps most accurately, many law school deans - try to avoid the investments needed to provide their students with professional, high-quality instruction in legal research and legal writing. Law professors, including women law professors, have reacted to their deans' decisions to maintain the status quo largely by quiet acquiescence - although in some cases they openly support that stance. Legal writing seems to be just too hard, and too demanding in time and energy, to be taught by doctrinal law professors, most of whom are men who feel they have better things to do.

This essay offers an explanation about how law schools arrived at this uncomfortable place. It reveals the depth of the salary differentials between legal writing teachers, their faculty colleagues down the hall, and the students who have just received their degrees. The essay then explains how these gender-based disparities and disdain for law practice have become institutionalized and validated by the American Bar Association's Standards for Approval of Law Schools. It summarizes the recent actions that legal writing teachers have taken to secure for themselves the status, stature, and pay afforded to other law faculty. Finally, we focus on legal research and writing professors' work to create a standard of writing instruction on which students can rely to begin their practice of law successfully.

Legal writing, legal education, faculty, legal research and writing, feminist theory, survey, pay, status, ABA accreditation

Abstract:
Feminist Legal Writing analyzes feminist legal scholarship from a rhetorical, linguistic and writing perspective. Much has been written about the substance and method of feminist legal theory. This article is devoted exclusively to an in-depth look at the techniques of persuasion that make so much feminist legal scholarship so powerful.

The Article starts from the premise that the conventions of legal advocacy and legal writing may require feminist legal theorists to choose between following the conventions of legal persuasion and fully conveying their feminist message. Using linguistic theory as well as persuasive writing and rhetorical theory, the Article explores feminist legal scholarship that manages to be both subversive and powerful through the use of unconventional rhetorical techniques. These techniques include many of the rhetorical devices socio-linguists commonly identify as hallmarks of the language of subversive societies or classes - those groups or classes that stand in resistance to the established society in which they are forced to exist.

The use of these subversive rhetorical techniques, including negation, metaphor and other poetic devices, narrative, and relexicalization, reveal a rich tapestry of persuasive language in the writings of feminists. The legal scholarship of Catharine A. MacKinnon, Patricia Williams, Martha Mahoney and Susan Estrich, among others, are used as examples of the unique power of the unconventional techniques of feminist legal writing. Ultimately, the Article argues that the power of feminist legal writing should lead advocates to question the conventional wisdom of many of the rules of persuasive legal writing.

feminist legal theory, feminism, rhetoric, linguistics, language, legal writing, persuasion

Abstract:
This article tackles the question of whether the methods of instruction in legal research, writing and analysis courses can add to the alienation of outsider law students. Using the socio-linguistic theories of "muting" and linguistic determinism, the article argues that the two dominant pedagogies of legal writing instruction, the process view and the social view, can stifle the voices of outsiders in the legal academy. In linguistic terms, legal education, by teaching in the voice of the socially powerful, can force outsiders to distort their ideas in order to be heard, or can even render those ideas nonexistent.

The methodologies of teaching legal writing demonstrate the problem starkly. By teaching students to focus on persuading the audience when framing the legal question and determining relevant facts, for example, legal writing pedagogy effectively prevents the law student from communicating an outsider viewpoint. The formalities of legal writing remove individual perspective by requiring writers to communicate in an abstract, "objective" style. Similarly, both the vocabulary and register of legal language is often biased against outsider perspectives. Thus, by becoming fluent in the language of the law, the outsider risks losing her individual perspective.

The article recognizes the dilemma inherent in making any systematic changes to a practice-based course like legal writing. The goal of the course is to teach the realities of practice; the dilemma is how to do so without draining the law of the valuable voices of outsiders. The article suggests that a good first step would be to incorporate concepts from critical theory such as narrative theory, "multiple consciousness" and "positionality" into the first year of law school, even within the legal writing course. This would at least acknowledge the existence of the problem, show students that others have confronted the same dilemma and have considered it important and relevant enough to write about, and give students some guidance for how to cope with the problem.

outsiders, legal education, legal writing, pedagogy, linguistics, linguistic determinism, muting, critical legal theory, law and language, voice, marginalizing

Abstract:
Moving Beyond Instinct is a book review of Advanced Legal Writing: Theories and Strategies in Persuasive Writing by Professor Michael Smith. In the review, Advanced Legal Writing is evaluated not only as a teaching text, but also a practitioner desk reference and a theoretical exploration of advocacy writing. The review argues that Advanced Legal Writing represents a significant forward step in the literature about persuasive writing, because it names and categorizes specific rhetorical devices and, using multiple theories from disciplines outside law, explains why they work. In this way, Advanced Legal Writing allows scholars and practitioners to move beyond their reliance on what they instinctively think or know is "persuasive" toward a more analytical, informed knowledge of persuasion. In addition, the review argues that Advanced Legal Writing encourages and helps advocates make persuasive writing more beautiful and interesting, and proves that persuasive legal writing is an art and a discipline worth studying.

The review critiques Advanced Legal Writing for its failure to address some of the moral issues related to the troubling aspects of advocacy, particularly those techniques that are psychologically manipulative or easily misused. Having noted that certain techniques are effective because they play on human psychology in a particular way, the review argues that the book should have explored a bit more the line between persuasion and manipulation. Specifically, the review suggests that Advanced Legal Writing, in particular because it is a teaching text, should have devoted some space to acknowledging how certain persuasive techniques can reflect and reinforce hierarchies of class, race, and gender.

persuasion, book review, legal writing, rhetoric, legal education, persuasive writing

Abstract:
This Article breaks the silence that shields American law schools' decisions about salaries for legal writing teachers and offers explanations of how we arrived where we are today. It explores the history of data collection efforts in the field of legal writing with a focus on changes in program design and salary reporting, and suggests that the admission of women into law schools in the 1970s, and the mid-1980s boom in law school admissions, may have triggered the phenomenal growth of second-class status legal writing faculty positions. This Article is the first compilation that analyzes salary data based on an individual professor's law school graduation date, the number of years the professor has been teaching legal writing, gender and whether the law school is public or private. It is the only compilation that adjusts salaries based on the cost of living in the city in which the law school is located (or the closest metropolitan area). This Article is also the first to directly compare the salaries of legal writing professors with those paid to professors of doctrinal courses, and to compare the legal writing salaries to the prevailing salaries paid to new law school graduates in the cities in which the employing schools are located.

There are three goals of this Article: (1) to expose just how shamefully low some legal writing salaries actually are, (2) to demonstrate the links between the existence of the field of legal writing, the low salaries paid and the predominant gender of writing teachers and (3) to empower legal writing professors to negotiate for (and receive) salaries that more closely reflect their work and merit. Moreover, by publishing the salaries and their bases in the gender politics of the legal academy, this Article takes a step toward making law schools accountable for inequitable and discriminatory decisions. The result, we hope, will be a turn toward greater fairness and equality in the teaching profession.

Legal writing, legal education, faculty, legal research and writing, feminist theory, survey, pay, status, ABA accreditation

Abstract:
This article addresses the conflict between free speech and educational rights through the lens of the author's experience dealing with intentionally disruptive hate speech in a seminar entitled Law and Feminism. The paper begins by describing the hate speech that occurred in Law and Feminism and its impact upon the students in the class. The description is meant to show concretely and specifically the harms of student hate speech in the classroom, especially in a seminar class devoted to feminist theory.

The paper then critiques the refusal of many legal educators to interfere with student hate speech in the classroom. Although interference with student speech is a well-settled part of legal education, and it is a widely accepted principle that free speech can be regulated in an academic environment when it interferes with the educational purpose of the class or equality principles, the legal academy generally responds to hate speech by ignoring it. With hate speech, biases in the legal academy tilt the balance unfairly toward a policy of non-interference - the academic equivalent of sticking one's head in the sand.

This paper takes issue with that approach. The paper argues that, despite its claims to neutrality, the non-interference approach to student hate speech is neither neutral nor absolute. Instead, the political context of law school inflates the free speech harm of professorial regulation of student hate speech while simultaneously deflating the importance of more widely accepted law school practices that control the content of student classroom dialogue. The non-interference approach also misunderstands and de-values the educational goals of seminars devoted to critical legal thought. The paper challenges law schools to renounce the superficially neutral "non-interference" approach and devise a more thoughtful, nuanced approach to the balance of free speech and education rights in the legal academy.

hate speech, feminism, legal education, feminist legal theory, free speech, women and legal education

Abstract:
The Paradox of the Fresh Complaint Rule closely examines a rule of evidence known as the fresh complaint or prompt complaint rule. The rule is controversial because it is applicable only in sexual assault trials and therefore singles out sexual assault victims for special treatment. Reminiscent of the equal treatment/special treatment dilemma, scholars have disagreed over whether this unique evidentiary rule for sexual assault victims should continue to exist.

There is little disagreement that the rule can help individual rape complainants. By permitting admission of out-of-court statements made by a sexual assault complainant alleging that a rape occurred, the rule helps sexual assault complainants recover from the often unfair credibility damage they suffer because of widely embraced stereotypes about how sexual assault victims ýshouldý behave. There is no question that evidence of a prompt complaint of rape helps to boost the often unfairly maligned credibility of sexual assault complainants. However, in the rule's effectiveness lies the paradox. Because it boosts the credibility of complainants by showing that they did in fact complain, the rule has the unfortunate effect of perpetuating the very stereotype that it exists to disprove.

In this way, the fresh complaint rule is a paradigmatic example of the feminist ýdouble bind.ý Mindful of the practical advantages of the rule for individual sexual assault complainants, this paper suggests a way out of the double bind by keeping the rule, but modifying both the rule and its rationale to alleviate its role in perpetuating stereotypes about sexual assault complainants. The paper acknowledges that at some point, the fresh complaint rule should be phased out of the rules of evidence, but warns against the harms of doing so prematurely. The compromise suggested in the paper, which was cited favorably by courts of last resort in Massachusetts and New Jersey, maintains the practical advantages of admitting the evidence yet alleviates some of the more troublesome theoretical problems.

rape, feminist legal theory, sexual assault, evidence, equal treatment, special treatment, fresh complaint, prompt complaint, complaint of rape, criminal law

Abstract:
This article addresses the conflict between free speech and educational rights through the lens of the author's experience dealing with intentionally disruptive hate speech in a seminar entitled Law and Feminism. The paper begins by describing the hate speech that occurred in Law and Feminism and its impact upon the students in the class. The description is meant to show concretely and specifically the harms of student hate speech in the classroom, especially in a seminar class devoted to feminist theory.

The paper then critiques the refusal of many legal educators to interfere with student hate speech in the classroom. Although interference with student speech is a well-settled part of legal education, and it is a widely accepted principle that free speech can be regulated in an academic environment when it interferes with the educational purpose of the class or equality principles, the legal academy generally responds to hate speech by ignoring it. With hate speech, biases in the legal academy tilt the balance unfairly toward a policy of non-interference - the academic equivalent of sticking one's head in the sand.

This paper takes issue with that approach. The paper argues that, despite its claims to neutrality, the non-interference approach to student hate speech is neither neutral nor absolute. Instead, the political context of law school inflates the free speech harm of professorial regulation of student hate speech while simultaneously deflating the importance of more widely accepted law school practices that control the content of student classroom dialogue. The non-interference approach also misunderstands and de-values the educational goals of seminars devoted to critical legal thought. The paper challenges law schools to renounce the superficially neutral "non-interference" approach and devise a more thoughtful, nuanced approach to the balance of free speech and education rights in the legal academy.

hate speech, feminism, legal education, feminist legal theory, free speech, women, legal education