How Embedded Knowledge Structures Affect Judicial Decision Making: A Rhetorical Analysis of Metaphor, Narrative, and Imagination in Child Custody Disputes

50 Pages Posted: 18 Aug 2008 Last revised: 16 Jul 2009

See all articles by Linda L. Berger

Linda L. Berger

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: August 16, 2008

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.

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

Suggested Citation

Berger, Linda L., How Embedded Knowledge Structures Affect Judicial Decision Making: A Rhetorical Analysis of Metaphor, Narrative, and Imagination in Child Custody Disputes (August 16, 2008). Southern California Interdisciplinary Law Journal, Vol. 18, No. 259, 2009. Available at SSRN: https://ssrn.com/abstract=1231584

Linda L. Berger (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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