Against the Grain: The Secret Role of Dissents in Integrating Rhetoric Across the Curriculum
33 Pages Posted: 23 Apr 2020
Date Written: April 22, 2020
Law and rhetoric have always been connected. As a result, instruction in rhetoric and law went hand in hand. Over time though that close connection began to wane as forces like religion began to replace rhetoric as a primary discourse source, which ultimately resulted in law and rhetoric viewed as separate rather than mutually informing disciplines. Of late, there have been efforts to restore law and rhetoric’s close connection in legal education. A primary focus of these efforts was to provide lawyers tools and vocabulary to recognize the value and potential application of rhetoric in their work. These efforts have been successful in establishing rhetoric’s value in improving the development of lawyers’ reasoning and writing skills, yet they do not offer a comprehensive account of rhetoric in law. What has been missing from the restorative efforts is attention to some of rhetoric’s more complex concepts that demonstrate rhetoric’s constitutive capacity and how it creates and shapes conditions for action in everyday life. We argue that such attention to these complex concepts is an important step towards expanding and strengthening law and rhetoric’s close connection.
In this Article, we make the case for dissent writing and reasoning as the vehicle for fully restoring rhetoric and law’s connection. We see dissents as superior tools for talking about and examining the close relationship between law and rhetoric, because as a genre, dissents invite working with and closely scrutinizing law’s systemic nature, its inherent instability and uncertainty, and the surpluses that emanate from legal texts as they work their way through law’s system. Rather than seeing such instability and uncertainty as barriers to effective communication, rhetoric sees these items as fruitful resources for developing reasoning and effective advocacy. Put simply, dissents make visible rhetoric’s constitutive nature as a discipline that fundamentally creates and invents rather than merely adorns.
Admittedly, working with dissents may seem counter-intuitive to readers; after all, dissents are legally impotent at the time of their composition. They represent anti-majority reasoning and work against the grain of the majority opinion. As such, in the moments following their creation, dissents have constrained potential as precedents for shaping law. However, it is in this very space of working against the grain that dissents’ promise lies for reestablishing rhetoric and law’s close connection. When examining dissents, we argue that law students are exposed to the complex rhetorical concepts that create conditions for a dissent’s future success. As such, dissents are unique discursive tools for heightening and making visible rhetoric and law’s close connection across the law school curriculum.
Keywords: rhetoric, dissent, legal writing instruction, advocacy
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