Monday, September 22, 2008

logos, pathos, and ethos in New Jersey

Michael_r_smith_wyoming Rutgers University School of Law and the University of Wyoming College of Law hosted A Dialogue about Persuasion in Legal Writing & Lawyering on Friday, September 19, 2008, at the new law school building in Camden, NJ. Inspired by the advanced legal writing textbook written by Michael R. Smith, the conference featured panels of speakers addressing different aspects of the dynamic trio of Aristotelian rhetoric--logos, pathos, and ethos. Smith, who holds the title of Winston S. Howard Distinguished Professor of Law at Wyoming, kicked things off with a clear and sensible overview of the operation of those three classical processes of persuasion. In his concluding remarks, he urged conference attendees to contribute their ideas and energies to further developing the scholarly discipline of legal writing.

Jason Cohen and Sheila Rodriguez moderated the logos panel, which featured Steve Jamar (Howard), Kathy Stanchi (Temple), and Coleen Barger (University of Arkansas at Little Rock) (cmb on this blog). Coleen explored the question, "What are established legal authorities?" (admittedly also drifting into factual authorities)--particularly as the legal profession is more likely to research and cite them on the Internet. Steve compared the limits of logos as a persuasive tool in two Supreme Court decisions from last term: Boumediene and Heller, which reached consistent results (upholding an individual right against the government) even as the majority and minority sides in each case differed markedly. Kathy's theme was that the boundary between logos and pathos is a thin one, and she offered examples of persuasive strategies that--although appearing to be based in logos--are successful because of their emotional impact.

Ken Chestek moderated the pathos panel, explaining the "DNA of persuasion," or how the double strands of logic and emotion intertwine in a double helix. This panel was made up of Ellie Margolis (Temple), Jim Lupo (Northwestern), and Linda Berger (Mercer). Ellie explained that policy arguments work because of both pathos and logos, in that they are based on the values decisionmakers find persuasive. Jim examined the substantive due process basis of Lawrence v. Texas, taking a closer look at the "sacred precincts" of same-sex couples' relationships. Linda used the story of King Solomon to help us understand how narrative and metaphor can influence a judge's decision, using interesting twists on the possible motivations of the characters in that ancient tale.

Alison Nissen and Meredith Schalick moderated the final panel on ethos, which was comprised of Melissa Weresh (Drake), Victoria Chase (Rutgers-Camden), and Scott Wood (Loyola-Los Angeles). Mel showed us how ethos can be made an integral part of a first-year law student's education in professionalism, using film clips from "A Civil Action" and "Philadelphia" to illustrate important values. Victoria provided many examples from trial clinics to demonstrate how law students must be cognizant of their multiple audiences at trial and how those audiences assess the students' credibility. Scott also used a film clip, this one from "Billy Budd, Sailor" (based on the Melville short story) to demonstrate how trial advocacy exercises based on literary trials such as Budd's can induce students to grapple with the tension between morality and the rule of law.

Many thanks to all who contributed to this outstanding conference, including (in addition to those named above) Sarah Ricks, Ruth Anne Robbins, Carol Wallinger, and Robert Sachs.


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