168 | CCN: 31423

Advanced Topics in Contemporary Law and Legal Discourse

The Rhetoric of the Legal Process

Instructor: Felipe Gutterriez,

The theme of this course is the rhetoric of the legal process. As to what that might mean and what “law” might be, consider the following:

Think for a moment what would follow if it were true
that the activity of law consisted of nothing more
than memorizing certain clear rules and learning where
to find the others. First, both law school and the practice
of law would be intolerably boring. But the fact is that for
many people the study and practice of law are both
difficult and fascinating.

Let me suggest that you regard the law not as a set of rules
to be memorized but as an activity, as something that
people do, with their minds and with each other, as they act
in relation both to a body of authoritative legal material and
to the circumstances and events of the actual world. The
law is a set of social and intellectual practices that defines
a universe or culture in which you will learn to function;
like other important activities, it offers its practitioner the
opportunity to make a life, to work out a character, for herself
or for himself. What you will learn in law school, on this view,
is not information in the usual sense, not a set of repeatable
propositions, but how to do something.

* * *
It might help if you were to compare the process of
learning law *** [to] learning a language. One must of course
know the rules of grammar and the meanings of terms, but
to know those things is not to know how to speak the language;
that knowledge comes only with use. The real difficulties and
pleasures lie not in knowing the rules of French or of law, but
in knowing how to speak the language, how to make sense of
it, how to use it to serve your purposes in life.

In both language and law, learning has a double focus: if one
is to live and act competently in a particular culture, one
simply must learn how the language-or the law-is in fact
spoken by others, by those whom one wishes to address,
to persuade, to learn from, and to live with. But one also
wishes to learn how to turn the language, or the law, to one's
own purposes: to invent new sentences, to have new ideas,
to do new things, perhaps to change the nature of the language
itself. Your concern in law school is thus a double one: to learn
as completely as you can how the legal culture functions; and
to establish a place for yourself in relation to it from which you
can attempt to use it in your own ways-in ways that increase
your capacities and powers, ways that enable you to speak
truthfully to the conditions of the world and to take positions
(and offer them to others) which seem to you to be right.
In doing all this you will subject your own views and inclinations
to the discipline of the inherited culture and the conditions of
the world; and you will have a chance, sometimes, not only to
maintain but to improve the culture of which you become a part.

White, James B. "Talk to Entering Students."  Occasional Papers L. Sch. U. Chi. 13 (1977): 1-6.

Required Texts: Course reader available at Zee Zee Copy, 2431-C Durant Ave.

Attendance: A central aspect of our study of law will the “case method” of learning law, that is, “studying actual cases in which the law can be seen in action.” A related aspect of our study of law is the active participation required of the students. Learning law is requires your participation. You must be prepared to be called upon and to speak up in class. Attendance is therefore a requirement of this course. Students missing a class during the first two weeks will be dropped from the course.

Assignments: There will be regular short written assignments, one or two longer written assignments. Students will be expected to be prepared to be called upon from time to time in class.