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Abstract:
In this short article, and drawing upon George Steiner's famous article about the death of the German language, I argue that it is only when the language of the law is "living speech," in James Boyd White's terminology, that the law can perform well its moral purpose. This is, in part, because of the unique form of judgment that the law is.

language, Steiner, Germany, humane, grace, James Boyd White, Aristotle, living speech, Reich, judgment, theater, legal writing, mentors

Abstract:
Starting with the puzzle of why the moral admonition of "cheater" has gone missing from legal ethics courses, this article, with the help of a much expanded version of Bernard Suit's definition of "game," argues that the lusory attitude upon which this moral admonition depends should be the pedagogical goal of legal ethics. Instead, the argument continues - partly in a response to Arthur Applbaum - law students are taught an attitude quite at odds with it. This is, I argue, much to the detriment of the profession, those affected by it, and, finally, to an adequate understanding of the practice's relationship to justice.

"legal ethics", cheating, cheater, ethics, "lusory attitude", justice, "internal perspective", teach, "moral admonition", "legal ethics courses", game, Suits, Applbaum, Walzer, play

Abstract:
A critical analysis of the "rebellious ethics" that is the paradigm of current professional ethics and that emerged in reaction to the "pure technician" displayed in the life of Albert Speer, Hitler's architect, along with a plea to professionals to take the morality of their professional roles more seriously.

professional ethics, architecture, business ethics, legal ethics, Albert Speer, role morality, rebellious ethics, Arendt, Nazi, Hitler, corruption, craft, MacIntyre, moral rebel, roleless person, master stories, church Hauerwas

Abstract:
I am interested here in using Johannes Huizinga's work on play to explore a strange, yet civilizing, phenomenon. Why do we take those social disputes in our ordinary lives that often seem most serious and therefore most divisive, turn them over to playful participants in a legal literary game, and then choose, more or less, to call the outcome of this game "justice" and to trust it as such even to the point of preferring it to the political? Why, that is, do we think that it is justice that arises from this literary play? If we are to understand how this play became and becomes justice, I argue, we must abandon current assumptions about the legal conversation to appreciate anew not only its formal elements as a game -- constitutive rules; a "lusory attitude" (Bernard Suits' term) toward those rules upon which the game depends for its continuation; and, most important for this article, its insistence upon a certain playful "disinterestedness" or, as l call it here, an alterity or otherness -- but also beyond these its archaic Greek elements: agon, ritual, chance, and, most difficult of all, the remaining elements of sacredness and the divine. This then is the rhetorical task of the article and it proceeds by way of the ancient Greeks, not to define the legal conversation by its origins, but to attempt to reopen our understanding so that we can perceive the legal conversation anew.

justice, play, Huizinga, Aristotle, rhetoric, legal rhetoric, rhetorician, rhetorical, legal conversation, Greek tragedy, tragic theater, tragic theatre, persuasion, capping, games, gods, divine justice, chance, symposia, Rahner, transcendence, Peter Goodrich, Kathy Eden, Eugene Garver

Abstract:
This paper examines the role of religious speech in democratic civic argument by challenging liberal methods of addressing the issue of religious speech with a more rhetorical view of civic argument. The primary issue, from this perspective, is whether or not rhetoric's own constitutive restraints are adequate to address the risks of religious speech. After a brief analysis of liberal methods, the rhetorical nature of civic argument is described, and both the risks of religious speech and the constitutive restraints are examined.

rhetoric, rhetorical community, religious speech, religious rhetoric, religion, constitutive restrainsts, constitutive rules, persuasion, political argument,democracy, civic argument, liberal, Stanley Fish, Stanley Hauerwas, Robert Audi, Mozert v. Hawkins, mystery, divisiveness, rudeness, fairness

Abstract:
A biographical examination of Brainerd Curre as a model for law professing.

Brainerd, Currie, law professor, legal education, Mercer Law School, University of Chicago, Duke University. gilbert and Sullivan, Roger Traynor, David Currie, conflicts of law, teaching, legal realism, Hauerwas

Abstract:
This is an examination of being a Christian and a lawyer done in an analogy to baseball.

Christian lawyer, baseball, practices, Fish, corruption, MacIntyre, character, internal goods, Koufax

Abstract:
Responding to well known challenges to any attempt to justify any principle for the protection of speech, this Article argues that principled protection of speech is justified because speech, all speech, has as one of its elements a participation in the same self-justifying activity that the aesthetic always is. To demonstrate what he means by "the aesthetic", to show the aesthetic aspect of speech, and to explain why this aspect justifies speech's protection, the Author takes his readers into the "polity of samba," an aesthetic cultural community, in Brazil in the sixties, as it defends its samba speech against the censorship of the "polity of common sense." In doing so, he focuses on the role played by the famous Brazilian composer, Chico Buarque, who, he argues, was the primary voice of the polity of samba. (Links to Buarque's most important musical compositions from this time are provided in footnotes.) From this Brazilian samba experience, and from Buarque, the Author argues, we can learn that expressive speech is always grounded in the ongoing possibility of the aesthetic and is always to be found at the boundaries between the polities in which we live our lives. It is this being at the boundary, and thus capturing our fullness, that makes speech special, that is, distinguishable from our other activities, and justifies the special protection that we offer to it. Showing how surprisingly similar conceptions of speech can be found in the early opinions of Judge Hand and Justice Holmes, the Article goes on to explain how such a justification for speech works in the law. It does so, the Author argues, in a manner similar to the way moral intuitions work in moral decision-making: as non-inferentially justified principles, grounded only in our experience, that operate as prima facie, defeasible, thumbs on the scales in judicial decision-making about speech. The Article then concludes with the Author's appeal to law teachers to nurture a non-instrumental, non-political, samba conception of law, one not reducible to force, as against what he sees as the instrumental and political conception of law lying behind the claims of those who reject any principled protection of speech.

free speech, aesthetic, samba, Buarque, Fish, moral intuition, self-justifying activities, play, Brazil, common sense, censorship, music, Hauerwas, Holmes, Hand, Audi, Masses, dance

Abstract:
This is a talk presented at the Law & Rhetoric: Legal Writing Through a Rhetorical Lens Workshop in San Diego, CA, on January 6, 2009, sponsored by Mercer University School of Law and produced by Prof. Linda Berger of Mercer. The purpose of the talk was to demonstrate how improvisational teaching in a small advanced legal writing course could generate interesting topics for research. This is so because rhetoric has the ability to unsettle our ordinary perceptions. In fact, in this particular setting rhetoric's ability (an ability I think I am willing to defend as unique) to make everything seem strange is strong enough to turn upon rhetoric itself and to reveal anew those rhetorical insights that are now hidden from us because they have been implicit in Western culture for centuries. The talk is presented as an internal monologue: a stream of conscious exploration rather than an exposition. There is no single theme to this monologue. It is more of an honest search for a theme, for such is the way that interesting topics are generated, or so I believe.

rhetoric, legal writing, teaching, persuasion, person, Vining, poets, literary, game, argument

Abstract:
An examination of the claim that good lawyering, understood as the work of legal rhetoricians, is good ethics.

rhetoric, rhetorician, legal rhetorician, ethics, legal ethics, Audi, Fish, practice, formal moral existence, professionalism, antiprofessionalism, role, constraints on rhetoric, White, good lawyering

Abstract:
This paper uses the pedagogy of parables to examine good teaching.

teaching, parables, Wittgenstein, Good Samaritan, Ricoeur, legal education, lawyer

Abstract:
An examination of the two school of thoughts that have dominated pedagogical inquiry in the law: traditionalists and technicians, along with a proposed method of combining the two in curriculum design.

curriculum, legal education, law school, MacCrate, Woodruff Curriculum, Mercer, cross-cutting skills, skills education, pedagogy, technicians, traditionalists

Abstract:
This is the afterwards from a symposium entitled: "The Theology of the Practice of Law" conduct at Mercer Law School in February, 2002. I offer it here because some might be interested in the "first concern" which is about the relationship between the practice of law and the practice of theology as practices. I argue here that the way in which we have been taught to think of practices, as enclaves against meaninglessness each with its own language and each, then, a potential threat to other practices, doesn't account for what I call the "theological difference." Relying on Milbank and others, I argue that the relationship of theology to other practices is not that of another external practice crossing disciplinary lines but, instead, theology is internal to the practice of law as it is to all practices.

Abstract:
This is my argument against a model for law office moral counseling based on friendship and moral commonalities. Reading Shaffer and Cochran's Lawyers, Clients, and Moral Responsibility, led me to the conclusion that we would be far better off thinking of our clients as, in the words of the gospel song, "rank strangers." And we would be better off relating to these strangers not as if we were in a traditional friendship with them, but as the rhetoricians that I believe our lawyering tradition teaches us to be. Whether I have our tradition's lesson right or not, and I only invite the reader to consider this possibility here, I think any heuristic model for moral counseling in the law office has to start with an interpretation of the story of which we lawyers are a part. For this is where we are likely to find our most justified moral resources for counseling. Shaffer and Cochran, because they accepted a hostile academic critique of the practice, one that separates role morality from personal morality in defense of a false integrity, failed to do this and, in so failing, were not able to provide an adequate heuristic model for moral counseling in the law office.

counseling, moral counseling, law office, Shaffer, Cochran, legal ethics, friendship, rhetoric, rhetoricians, Aristotle, MacIntyre, Antigone, James Boyd White, Hauerwas, Armani

Abstract:
This is an introduction to a Lilly Endowment symposium on The Theology of the Practice of Law produced by the Mercer Law Review. It is intended to raise the issue of the theology of the practice through an analogy to the theological tensions in the life and work of the famous Georgia bluesman, Blind Willie McTell, using an imagined conversation between Blind Willie and an Atlantic Records producer.

theology, practice, blues, music, McTell, Dylan, Hegel, Barth, Hauerwas, church, Atlantic Records