Reading, writing, and rhetoric: An inquiry into the art of legal language

Legal language has long been the object both of suspicion and reform. This study is not a call for reform but an inquiry into the nature of legal language, its dissemination, and the ways professionals and non-professionals read, write, and understand it. It explores not only language reform movements but also the teaching of legal writing and the interpretive strategies of those who read and write judicial opinions. I approach this inquiry through classical rhetoric. Chapter 1 discusses Aristotle and his understanding of rhetoric as techne, or art. As a form of productive knowledge, techne can answer feminist challenges to conventional epistemologies and shoulder the "burden of comprehension" (Lauer) demanded by interdisciplinary inquiry.; Chapter 2 examines beliefs about language in legal scholarship and locates the "plain English" movement within a centuries-old tradition that attempts to understand language as a science. Tracing claims of the movement to Bacon, Locke, Cicero, Theophrastus, and Aristotle, I propose an alternative understanding of language as art through the stylistic theory of Hermogenes in Peri Ideon. Chapter 3 moves to modern writing pedagogy as practiced in the law schools. Though many legal writing instructors are influenced by process pedagogy imported from composition studies, process pedagogy combined with "plain English" imperatives ensures focus will remain on the finished product.; Chapter 4 moves to interpretation, particularly as practiced by the "law and literature" movement. It uses the literary theory of law and economics scholar Richard Posner, and the critique of that theory by James Boyd White, to evaluate Posner's opinion in a sexual harassment case, Carr v. Allison Gas Turbine Division. Chapter 5 extends this analysis to several sexual harassment opinions and examines two concepts unique to sexual harassment law, the "reasonable woman" and "welcome harassment." I question the notion (invoked by Posner in Carr) that "welcome harassment" is an oxymoron and thus untenable, and argue that the legal definitions of welcomeness and harassment enable its viability as a legal category, while the "reasonable woman" is rendered oxymoronic by the legal definitions of its terms. I urge intervention into legal discourse to foreground the implicit ideologies behind incoherent legal doctrines (MacKinnon).