Rhetoric, Law, and the Humanities – serie

Examines public discourse from the Progressive Era over the state's right to regulate women's bodies and their reproductionWhen Justice Oliver Wendell Holmes determined in 1927 that sterilization was a legitimate means of safeguarding the nation's health, he was asserting the state's right to regulate the production of the national body. His opinion represented a culmination of arguments about reproduction and immigration that had been circulating for years but that intensified during the Progressive Era. Arguments about reproductive and immigration practices surged to the foreground, and tectonic shifts in the conceptual schemes and practices of reproduction in the United States followed.  Drawing on feminist historiography and genre studies, Corporal Rhetoric: Regulating Reproduction in the Progressive Era explores the rhetoric of medical research, new technologies, and material practices that shifted the idea of childbirth as an act of God or Nature to a medical procedure enacted by male physicians on the bodies of women made passive by both drugs and discourse. Barbara Schneider considers how efficiency, the hallmark of scientific management, was raised to a cardinal virtue by its inclusions in the powerful mediums of presidential speeches, national educational policies, and eugenics discourse to reclassify babies, long regarded as gifts, as either valuable assets or defective products.  Schneider shows how the legal system drew upon medicine, scientific management, and the emerging discipline of sociology to restrict women's labor in order to preserve reproductive capacity, categorized by Supreme Court opinions as a public good rather than a private capacity. Throughout, she ties the arguments developed during this era to current debates about mothering rhetorics, reproductive rights, immigration, and conceptions of the nation.  By weaving together medical research reports, clinical practices, case studies, legal opinions and legislative acts, and the epistemology of scientific management, Schneider illuminates the network that women such as Margaret Sanger, Jane Addams, Lillian Gilbreth and multiple others negotiated as they sought to give women room to exercise their reproductive capacity. Through her analysis of the machinery of these discourses and the material uptake of their genres in the daily practices of reproductive bodies, Schneider offers a provisional theory of corporal rhetoric that begins to answer the call for a new material theory of the body.

A study that challenges our notions about citizenship and judgment by considering the place of children in historical and contemporary legal discourse.Many of the most controversial political issues of our time focus on the actions and well-being of children such as Greta Thunberg’s climate movement; youth activists standing up for racial justice, safe schools, and an equitable economy; and the furor over separating migrant children from their families. When do we treat children as competent citizens, when do we treat them as dependents in need of protection, and why?The Child before the Court: Judgment, Citizenship, and the Constitution provides answers to these foundational questions. It analyzes landmark US Supreme Court cases involving children’s free speech and due process rights and argues that our ideas about civic and legal judgment are deeply contested concepts instead of simple character traits. These cases serve as analytic touchstones for these problems, and the Court’s opinions seemingly articulate clear rules through a pragmatic balancing of interests.Timothy Barouch shows how these cases continually reshape constitutional thought, breaking from a vocabulary of wardship and recasting the child as a liberal individual. He analyzes these legal opinions as judicial novelizations and focuses on their rhetorical markers: the range of tropes, idioms, figures, and arguments that emerge across nearly two centuries of jurisprudence in this important but oft-neglected area. The careful and subtle readings of these cases demonstrate how judicial representations of the child provide key resources for thinking about the child as citizen and, more broadly, citizenship itself. It serves as a bold call to think through the relationship between the liberal individual and the problem of civic judgment as it manifests in public culture in a wide array of contexts at a time when liberal democracy is under siege.

Pairs passages from works of classical rhetoric with contemporary legal rulings to highlight and analyze their deep and abiding connections in matters of persuasionClassical Rhetoric and Contemporary Law: A Critical Reader is a rich work that analyzes the interplay between ancient rhetorical traditions and modern legal practice, reestablishing the lost connections between law and classical rhetoric. From Isocrates’s Panegyricus in 380 BCE to the landmark US Supreme Court case Trump v. Hawaii in 2018, and from Antiphon’s fifth century BCE First Tetralogy to 1995’s O. J. Simpson trial, the volume draws on an array of sources to illuminate how ancient rhetorical insights may even today challenge and enrich our grasp of contemporary legal principles. The collection opens with a brisk review of the historical development of rhetoric. The second part examines a pair of rhetorical theorists whose works frame the period across which classical rhetoric declined as a mode of thought. A contemporary appellate case contrasts with the work of Giambattista Vico, an eighteenth-century professor of rhetoric who warned of the separation of law from rhetoric. The analysis of the work of twentieth-century scholars ChaÏm Perelman and Lucie Olbrects-Tyteca shows that where Cartesian rationality fails, the humanistic tradition of rhetoric allows the law to respond to the needs of justice. In the third part, ten case studies bring together a classical rhetorical theorist with a contemporary court case, demonstrating the abiding relevance of the classical tradition to contemporary jurisprudence.With its cross-disciplinary appeal, Classical Rhetoric and Contemporary Law encompasses the work of legal, rhetorical, English, and communication scholars alike, catalyzing interactive exploration into the profound ways ancient rhetorical insights continue to shape our comprehension of today’s legal landscape.CONTRIBUTORSVasileios Adamidis / Elizabeth C. Britt / Kirsten K. Davis / David A. Frank / Michael Gagarin / Eugene Garver / Mark A. Hannah / Catherine L. Langford / Brian N. Larson / Craig A. Meyer / Francis J. Mootz III / Susan E. Provenzano / Nick J. Sciullo / Kristen K. Tiscione / Laura A. Webb

A highly original account of the role that fear plays in key First Amendment cases ruled on by the Roberts Supreme CourtIn Fear and the First Amendment, Kevin A. Johnson and Craig R. Smith offer a deeply considered examination of the ways fear figures in First Amendment questions ruled on by the contemporary Supreme Court. Bringing together literature on theories of fear in rhetorical and philosophical traditions, Johnson and Smith focus on the rulings from the Roberts Court, which form a pivotal era of dramatic precedents. Each chapter in this book analyzes one or more First Amendment cases and a variety of related fears--whether evidentiary or not--that pertain to a given case.These cases include Morse v. Frederick, which takes up the competing fears of school administrators’ loss of authority and students’ loss of free speech rights. The authors touch on corporate funding of elections in Citizens United v. Federal Elections Commission, from the fear of corporate influence on electoral politics to corporate fears of alienating their consumers by backing political candidates. They explore religious freedom and fears of homosexuality in Christian Legal Society v. Martinez. Similarly, in Snyder v. Phelps, the authors delve further into fears of God, death, emotional distress, failing as a parent, and losing one’s reputation. Next, they investigate parents’ anxieties about violence in video games in Brown v. Entertainment Merchants Association. Finally, Johnson and Smith examine the role of fear in indecent, obscene, and graphic communication in three cases: FCC v. Fox Television Stations, Ashcroft v. American Civil Liberties Union, and United States v. Stevens.Together these cases reveal fear to be an endemic factor in the rhetoric of First Amendment cases. This fascinating and original work will appeal to current legal practitioners and students of law, rhetoric, philosophy, and the First Amendment.

An overview and analysis of the Court’s justifications for overruling past cases and precedents.

Challenges the notion that transgender antidiscrimination law is a simple question of inclusion versus exclusion. The author uses the tools of rhetorical analysis to understand what the law is called to do, what it actually does, and what its limitations are. In doing so, this work demonstrates how law is relied upon to offer definitive sex categorizations that can be elusive in real life.

The first book-length rhetorical history and analysis of the insanity defense.The insanity defense is considered one of the most controversial, most misunderstood, and least straightforward subjects in the American legal system. Disorder in the Court: Morality, Myth, and the Insanity Defense traces the US legal standards for the insanity defense as they have evolved from 1843, when they were first codified in England, to 1984, when the US government attempted to revise them through the Insanity Defense Reform Act. Throughout this period 'insanity' existed primarily as a legal term rather than a medical one; yet the testimony of psychiatric experts is required in cases in which an insanity defense is raised.The adjudication of such cases by courtroom practice is caught between two different but overlapping discourses, the legal and the medical, both of which have historically sought to assert and maintain firm disciplinary boundaries. Both expert and lay audiences have struggled to understand and apply commonplace definitions of sanity, and the portrayal of the insanity defense in popular culture has only served to further frustrate such understandings.Andrea L. Alden argues that the problems with understanding the insanity defense are, at their foundation, rhetorical. The legal concept of what constitutes insanity and, therefore, an abdication of responsibility for one's actions does not map neatly onto the mental health professions' understandings of mental illness and how that affects an individual's ability to understand or control his or her actions. Additionally, there are multiple layers of persuasion involved in any effort to convince a judge, jury - or a public, for that matter - that a defendant is or is not responsible for his or her actions at a particular moment in time.Alden examines landmark court cases such as the trial of Daniel McNaughtan, Durham v. United States, and the trial of John Hinckley Jr. that signal the major shifts in the legal definitions of the insanity defense. Combining archival, textual, and rhetorical analysis, Alden offers a close reading of texts including trial transcripts, appellate court opinions, and relevant medical literature from the time period. She contextualizes these analyses through popular texts - for example, newspaper articles and editorials - showing that while all societies have maintained some version of mental illness as a mitigating factor in their penal systems, the insanity defense has always been fraught with controversy.

Pairs passages from works of classical rhetoric with contemporary legal rulings to highlight and analyze their deep and abiding connections in matters of persuasionClassical Rhetoric and Contemporary Law: A Critical Reader is a rich work that analyzes the interplay between ancient rhetorical traditions and modern legal practice, reestablishing the lost connections between law and classical rhetoric. From Isocrates’s Panegyricus in 380 BCE to the landmark US Supreme Court case Trump v. Hawaii in 2018, and from Antiphon’s fifth century BCE First Tetralogy to 1995’s O. J. Simpson trial, the volume draws on an array of sources to illuminate how ancient rhetorical insights may even today challenge and enrich our grasp of contemporary legal principles. The collection opens with a brisk review of the historical development of rhetoric. The second part examines a pair of rhetorical theorists whose works frame the period across which classical rhetoric declined as a mode of thought. A contemporary appellate case contrasts with the work of Giambattista Vico, an eighteenth-century professor of rhetoric who warned of the separation of law from rhetoric. The analysis of the work of twentieth-century scholars ChaÏm Perelman and Lucie Olbrects-Tyteca shows that where Cartesian rationality fails, the humanistic tradition of rhetoric allows the law to respond to the needs of justice. In the third part, ten case studies bring together a classical rhetorical theorist with a contemporary court case, demonstrating the abiding relevance of the classical tradition to contemporary jurisprudence.With its cross-disciplinary appeal, Classical Rhetoric and Contemporary Law encompasses the work of legal, rhetorical, English, and communication scholars alike, catalyzing interactive exploration into the profound ways ancient rhetorical insights continue to shape our comprehension of today’s legal landscape.CONTRIBUTORSVasileios Adamidis / Elizabeth C. Britt / Kirsten K. Davis / David A. Frank / Michael Gagarin / Eugene Garver / Mark A. Hannah / Catherine L. Langford / Brian N. Larson / Craig A. Meyer / Francis J. Mootz III / Susan E. Provenzano / Nick J. Sciullo / Kristen K. Tiscione / Laura A. Webb

A highly original account of the role that fear plays in key First Amendment cases ruled on by the Roberts Supreme CourtIn Fear and the First Amendment, Kevin A. Johnson and Craig R. Smith offer a deeply considered examination of the ways fear figures in First Amendment questions ruled on by the contemporary Supreme Court. Bringing together literature on theories of fear in rhetorical and philosophical traditions, Johnson and Smith focus on the rulings from the Roberts Court, which form a pivotal era of dramatic precedents. Each chapter in this book analyzes one or more First Amendment cases and a variety of related fears--whether evidentiary or not--that pertain to a given case.These cases include Morse v. Frederick, which takes up the competing fears of school administrators’ loss of authority and students’ loss of free speech rights. The authors touch on corporate funding of elections in Citizens United v. Federal Elections Commission, from the fear of corporate influence on electoral politics to corporate fears of alienating their consumers by backing political candidates. They explore religious freedom and fears of homosexuality in Christian Legal Society v. Martinez. Similarly, in Snyder v. Phelps, the authors delve further into fears of God, death, emotional distress, failing as a parent, and losing one’s reputation. Next, they investigate parents’ anxieties about violence in video games in Brown v. Entertainment Merchants Association. Finally, Johnson and Smith examine the role of fear in indecent, obscene, and graphic communication in three cases: FCC v. Fox Television Stations, Ashcroft v. American Civil Liberties Union, and United States v. Stevens.Together these cases reveal fear to be an endemic factor in the rhetoric of First Amendment cases. This fascinating and original work will appeal to current legal practitioners and students of law, rhetoric, philosophy, and the First Amendment.

A timely and lively summary and analysis of the Supreme Court’s justifications for overruling nearly 300 prior rulings in its historyAn audacious US Supreme Court is overturning a number of long-standing precedents, and Overturned offers a lively account of the court’s history of overturning prior cases and examples and analyses of 300 cases overruled in its history.The immense controversy surrounding the case of Dobbs v. Jackson Women’s Health Organization in 2022, which overruled Roe v. Wade and erased the constitutional right to abortion in the United States, has focused public attention on how and why the Supreme Court knocks down long-established precedents.In his vivid and accessible style, scholar Clarke Rountree recounts the rhetorical pirouettes and linguistic acrobatics the court has deployed to explain its reversal of Dobbs and numerous other landmark decisions. He reviews strategies the court uses to undermine a previous court’s standing without undermining its own. He analyzes overrulings across time, by type (constitutional cases versus statutory and common law cases), by the ages of the overturned precedents, with changes in the court’s membership, and through other variables.Rountree gives engrossing accounts of pivotal overrulings in the past, such as when Lincoln’s Treasury Secretary Salmon Chase used the Legal Tender Act in 1862 to raise money for the Civil War then ruled the same law unconstitutional in 1870 when he served as chief justice. Rountree retells Thomas Edison’s attempt to monopolize the burgeoning film industry, which was stopped only when the Supreme Court overturned an earlier patent-rights case in 1917. Finally, Rountree applies his myriad insights to the politically fraught Dobbs case.Overruled makes a valuable contribution to law, rhetoric, politics, and history, and readers interested in the role and function of America’s highest court will find Rountree’s account fast-paced, lively, and engaging.