Improving the Judicial Review of Common-Law Argumentation

Abstract:     
American scholars of legal rhetoric have taken a position on the disconnectedness between normative legal theory and legal practice, particularly the practice of forensic oratory, which must be addressed before pragma-dialectical argumentation theorists can move forward to concrete and constructive engagement with American legal theorists. This engagement could provide benefits and insights to both parties, espcially because of the structural similarity between the prescriptive dimension of dialectical argumentation theory and the procedural norms of the common law. In particular, pragma-dialectical argumentation theory might prove helpful to jurists seeking a more effective approach to the 'harmless error analysis' of courtroom argumentation.

Number of Pages in PDF File: 17

Keywords: rhetoric, stanley fish, james boyd white, argumentation theory, harmless error analysis, forensic oratory, closing arguments, summations, appellate review, pragma-dialectics, critical legal studies, Aristotle, van Eemeren

JEL Classification: K14

Accepted Paper Series