Standing in the Judge’s Shoes: Exploring Techniques to Help Legal Writers More Fully Address the Needs of Their Audience

By Sherri Lee Keene*

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Legal documents are not read for the purpose of entertainment or even to provide the reader with general information. Rather, legal writing serves the purpose of helping its readers—often judges—make legal decisions.[1] Moreover, a legal writer must determine how best to deliver her message to persuade the reader to reach a particular decision.[2] As such, a legal writer’s ability to consider and incorporate the legal audience’s needs into her written work is of the utmost importance.

Writing a legal document that will respond to an audience’s needs and achieve its desired purpose, however, is no small task. When making an oral argument, an attorney has the opportunity to hear the listeners’ thoughts and witness the listeners’ reactions, and to adjust the argument accordingly. To the contrary, when an attorney writes, she lacks the opportunity to observe the listener, and then correspondingly to adjust the text. Thus, in order to persuade in writing, the legal writer must anticipate how her audience will respond to the argument presented and then use this information to make her writing more effective.[3] Continue reading “Standing in the Judge’s Shoes: Exploring Techniques to Help Legal Writers More Fully Address the Needs of Their Audience” →

Jury Trials and Their Ineffective Role within a Retributivist Legal System

By Sharoia Taylor*

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Introduction

The United States has established itself as a front-runner in criminal punishment by having one of the highest per capita incarceration rates in the world. One of the more prominent features of the American criminal justice system is that it relies on a theory of punishment known as retributivism. Under this theory, punishment is doled out under the belief that a criminal deserves punishment proportional to their crime.[1] Within this theory, punishment is premised on what wrongdoers deserve, whether or not it leads to beneficial consequences.[2] And yet, these retributivist motivations are often stoked by a sense of moral outrage.[3] The severity of a crime and the evaluation of its proportional punishment rely heavily on the societal norms of the community and the institutions that enforce it.[4]

Unlike other theories of punishment, retributivist theory is a backwards-looking system which seeks justice through punishing deserving offenders—regardless of the offender’s justification—and is seen as an act of public justice.[5] In the United States, retributivist theory operates within two main domains of the legal system: a general domain and a specific domain. The general domain operates on a larger societal level, whereas the specific domain operates in the courtroom on individual members of society. Continue reading “Jury Trials and Their Ineffective Role within a Retributivist Legal System” →

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By Stephen E. Smith*

Introduction

Legal readers have expectations for the writing we consume. This is especially true of judicial writing, the opinions that take up so much of our attention. We expect a certain format. We also expect rigorous honesty, attention to detail, and other qualities.[1] Among these expectations is consideration of the state of the law, both within and without the jurisdiction. We expect an opinion to manifest not only the bare act of law-making, but also sufficient attention to an issue’s context and history. We expect the whole story.

Continue reading “Glatt v. Fox Searchlight and the Rhetorical Value of Inter-Circuit Dialogue” →

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by Kathleen A. Tarr*

“If I were a woman,” I continued, fully immersed in the logic of my argument. “You are a woman,” he reminded me. “Oh, yes.” I can’t remember what we had been discussing, two college students intellectualizing on our way out of the gym, me raised in a home with a father I idolized who in turn idolized S’chn T’gai Spock Cha’ Sarek[1] (a.k.a, Spock); logic was (is) my God. That I neglected my own demographics during a discussion was therefore not surprising, but it was . . . well, odd.

Continue reading “Logic and Its Discontents: Jurisprudential Tensions Between Emotion and Reason” →

by Andrew Jensen Kerr*

The only way to be a friend is to have one – Ralph Waldo Emerson.

Coercing Friendship and the Problem with Human Rights (PDF Version)

 I argue in this short essay that the foundational language of “dignity” in international human rights doctrine obscures the actual construction of human rights and limits high-functioning animals from our moral community. This lexicon of dignity lacks discrete content, but it has been almost uniformly interpreted to signal something unique about humans or the human condition. Indeed, the trending People ex rel. Nonhuman Rights Project, Inc. v. Lavery appellate decision from New York reflects how a narrow vision of rights jurisprudence determines practical life outcomes for animals like Tommy (a chimpanzee). I use the prism of friendship to explore how the (awkward) provision of essential emotional goods might subvert reader expectations of how we think about legal distinctions between humans and other animals.  The motivating question that informs this essay is thus: should there be a positive right to friendship? Continue reading “Coercing Friendship and the Problem with Human Rights” →

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By Michael D. Murray*

Introduction

A. Accommodating Multiculturalism in Legal Education and Law Practice by Using Visual Techniques

Legal education and law practice presents law professors and attorneys with the task of communicating the law to increasingly large audiences of LL.M. and J.D. students, clients, jurors, and other decision makers who are not native English speakers and do not share the same culture, history, or social context of those who traditionally dominated law school classrooms in the United States.[1] This is not an insignificant observation, because most of rhetoric[2]—which is to say, communication[3]—depends on understanding language,[4] narratives,[5] sense-memories and their effect on the interpretation of metaphors,[6] and archetypes[7] to construct knowledge and that will lead to persuasion or to mastery of the information. The methods of instruction and argumentation designed for traditional, mainstream audiences and the verbal-oriented conceptions of rhetoric and narrative reasoning that support these methods will be less effective when used to communicate with the new, diverse, and multicultural audiences in law school and legal practice.[8] The choices are to stay the course or take on the new challenge by bridging the gaps in communication. Continue reading “Leaping Language and Cultural Barriers with Visual Legal Rhetoric†” →