Showing papers in "Argumentation and Advocacy in 1994"

The Enthymeme as Postmodern Argument Form: Condensed, Mediated Argument Then and Now.

Abstract: When Stephen Toulmin wrote The Uses of Argument in 1958, the modern age was in full bloom and television was in its infancy. Today, however, most scholars argue that we now live in a postmodern age, thanks in great part to the emergence of television as the primary communication medium in developed nations. Argumentation scholars have responded to these developments in a number of ways. Goodnight, for instance, posits that our more complex contemporary world has spawned three spheres of argument: the personal, the technical, and the public. The erosion of public argument, he claims, is due to the privileging of the technical and personal that occurs in a world fragmented with specialties. Willard (Argumentation; Theory), meanwhile, suggests that argumentation scholars should explore the multiple interpretations of argument made possible by the existence of multiple frames of reference in a postmodern age. These and other responses, however, do not explore directly how public officials argue through the media to postmodern audiences. Jamieson (Eloquence) examines how the rhetorical style of public officials has changed in an electronic age, but she does not delve into the changes in argumentative style wrought by the new age. Her thesis, though, that whether it be through brief campaign commercials, decreasingly brief "sound bites" on the evening news, or appearances on talk shows in which topics change every few minutes, public figures' pronouncements are transmitted to audiences through media and in condensed forms, equally applies to the arguments found in those pronouncements. Understanding how these arguments are structured is an important step toward revising a conception of public argument that has evolved much more slowly than has public discourse itself. Such an exploration, which I initiate here, must begin with an understanding of how audiences in postmodern societies process condensed, mediated arguments. Ironically, today's postmodern audiences process arguments in a manner eerily similar to the classical audiences of ancient Greece. The implications of this notion on public argument raise some troublesome issues, only a few of which I can attempt to answer here. To develop these issues in further detail, I first compare the processing of postmodern and classical audiences. Next, I illustrate these theoretical similarities with a brief analysis of the rhetoric of David Duke. Then, I conclude with a discussion of the implications of this theoretical outlook. The Convergence of Postmodern and Classical Theories The postmodern condition, claims Collins, features a plethora of signs and symbols that circulate within a culture. "One of the key preconditions of the postmodern condition is the proliferation of signs and their endless circulation, generated by the technological developments associated with the information explosion (cable television, VCRs, digital recording, computers, etcetera)" (Collins 331). McGee calls these floating symbols "fragments," and argues that contemporary audiences primarily process new combinations of these previously articulated fragments. "The apparently finished discourse is in fact a dense reconstruction of all the bits of other discourses from which it was made" (McGee, 279). Similarly, Collins calls this process the comprehension of the "already said" in new forms. "What is postmodern in all of this is the simultaneity of these competing forms of rearticulation - the 'already said' is being constantly recirculated, but from very different perspectives ranging from nostalgic reverence to vehement attack or a mixture of these strategies" (Collins 333). Postmodernism appears on television in a variety of forms, from self-reflexive prime-time programming (S. Olson) to network news reporters dishing up stories about how politicians attempt to manipulate those stories. Television, as a less-than-linear medium, is an ideal vehicle for postmodern communication. …

Presence, Analogy, and "Earth in the Balance.".

Abstract: Vice-President Albert Gore, Jr.'s bestselling book on the environment, Earth In the Balance, has generated a storm of controversy. Admirers, such as Lance Morrow of Time magazine and Martin Peretz of the New Republic, argue that Gore "speaks with a certain rare passionate authenticity, a ring of the unfakable that is rare enough in the (usually ghostwritten) outpourings of politicians" (Morrow, 1992). Such opinions won Gore the 13th annual Robert F. Kennedy Book Award. Detractors, on the other hand, call Gore an "out-and-out radical" and maintain that "the heart of his world view is an apocalyptic vision of an Earth teetering on the brink of destruction" (Bailey, 1992). They dispute Gore's evidence (Lucian, 1992) and come close to accusing him of deception (Easterbrook, 1992). The heart of the book, and the sections that make supporters and detractors Gore most uncomfortable, consists of three analogies. The first is Gore's comparison of nuclear war to the environmental difficulties facing the world. The second, and most disconcerting, is Gore's likening of civilization's relationship to the earth with that of a dysfunctional family. The third is a familiar one; he compares the effort needed to the Marshall plan. These three analogies focus the argument of the book. The first provides an interpretive framework for the magnitude of the problem; the second suggests a language to describe the spiritual issues behind problem and solution; the third structures the proposals necessary to save the Earth. Gore's use of the analogies gives the book its rhetorical power or, in Perelman and Olbrechts-Tyteca's terms, gives "presence" to his arguments. The ill-defined concept of "presence" has tantalized argumentation scholars since the English translation of The New Rhetoric in 1969. As Karon (1989) argues, presence, loosely "translated" as the attention paid to or the importance accorded to an argument, is a critical element in the rhetorical theory of Perelman and Olbrechts-Tyteca; if the goal of argument is "to induce or to increase the mind's adherence to the theses presented for its assent" (1969, p. 4), then the attention granted to those theses is of utmost salience. Presence, Perelman and Olbrechts-Tyteca state, is of "paramount importance to the technique of argumentation". Yet "presence" is ambiguous. Perelman and Olbrechts-Tyteca identify it as both a psychological and a rational mode of argumentation. Its relationship to the rest of their rhetorical theory is uncertain. There is no analysis of its role in the uses of analogy, metaphor, example, quasi-logical argumentation, or any of the other strategies Perelman and Olbrechts-Tyteca forward. The secondary literature is equally scant. Only Karon (1989) and Kauffman and Parson (1990), and Leroux (1992) comment upon presence at length. Karon's intriguing analysis is concerned with what presence reveals about Perelman's epistemology. Kauffman and Parson comment insightfully on the relationship between metaphor and presence, but they are interested in the use of dead metaphors. Rather than detailing the "presence" of presence, they study the strategic absence of presence. Leroux (1992) opens the most useful path to an analysis of presence. His discussion of presence, situated within the development of a critical vocabulary for the understanding of style, emphasizes the function of presence. He argues that "style is the initial encounter through which auditors apprehend meaning" and that presence, treated as a stylistic device rather than a philosophical concept, can be useful for understanding "the language variations and tactics [that] can enlarge or vivify a subject". Leroux notes the important role that analogy can play in creating presence and suggests that presence is one way through which critics can collapse the troublesome form/content distinction. In this essay, I extend the work of these authors, particularly Leroux, by exploring the relationship between analogy and presence through a critique of Earth in the Balance. …

Law as "Communicative Praxis": Toward a Rhetorical Jurisprudence.

Abstract: "It is the province of knowledge to speak and it is the privilege of wisdom to listen." Oliver Wendell Holmes The Poet at the Breakfast Table In the recent film Mindwalk, the center of action is focused on the intellectual exchange of a poet, a scientist, and a politician. The conversation is unplanned, and often awkward, for the three characters in this film do not share the same intellectual vocabulary, but there is an unmistakable desire to both begin and continue the conversation. The conversation seems aimed toward translating a concern for the human condition into appropriate political praxis. The important theoretical moment for the film is the point at which the conversation begins. This is also the important theoretical moment for this essay. We seek to reconfigure an intellectual relation in the hope of reinvigorating a critical conversation. A debate similar to the one in Mindwalk has continued for hundreds of years in jurisprudence, or the "philosophy of law."(1) Specifically, the dialectical relation of scientist/poet has been represented by analytic philosophy/rhetorical theory. Or, in other words, philosophy and rhetoric have served as competing intellectual foundations since the time the law was first theorized. So let us begin with our conclusion: both the theory and practice of jurisprudence have changed markedly over their lengthy history. In fact, contemporary jurisprudence is such that it bears almost no intellectual relationship to the concept articulated at its origins. Perhaps this is most obvious when we realize, historically, that the theory of law and the theory of rhetoric had an almost synchronous relation. Today, however, it is a relation that is substantially ignored, and overtly denied. Gerald Wetlaufer reminds of this intellectual shift in the theory of law which, he argues, culminates in a "deeply ironic resistance to rhetoric" (1555). The difference we posit becomes clearest when one compares origins to end points. Jurisprudence was originally an intellectually holistic concept. It boldly crossed the gap from theoria to praxis and back again. For Aristotle, who represents the pragmatic synthesis of rhetoric and philosophy, conceptions of the law were informed by a confluence of dialectic, rhetoric, ethics, politics, even poetics. Today, however, jurisprudence has been appropriated by a discrete and insular theory of law, articulated largely by the analytic/positivist/formalist tradition. As a result, contemporary jurisprudence becomes an intellectually truncated philosophy of law; indeed, it more or less operates as the "science" of law.(2) Questions of ethics and normativity, of politics and rhetoric, once the heart of the classical model of jurisprudence, are now quickly dismissed by the analytic tradition. Even Black's Law Dictionary, the central text for legal concepts and terms, demonstrates the near complete hegemony of the analytic tradition in contemporary jurisprudence. It purports to define "jurisprudence" as: The philosophy of law, or the science which treats the principles of positive law and legal relations. In the proper sense of the word, 'jurisprudence' is the science of law, namely, that science which has for its function to ascertain the principles on which legal rules are based, so as not only to classify those rules in the proper order, and show the relation in which they stand to one another, but also to settle the manner in which new or doubtful cases should be brought under the appropriate rules. Jurisprudence is more a formal than a material science. It has no direct concern with questions of moral or political policy, for they fall under the province of ethics and legislation . . . . (emphasis added) ("Jurisprudence" 767) The end result of the aforementioned hegemony of the analytic tradition in the theory of law is an often subtle, but unmistakable transformation in the way the law is both theorized and practiced. James Boyd White is one scholar who understands and laments this transformation. …

An Analysis of Differences in Success Rates of Male and Female Debaters

Abstract: The past few years have witnessed a heightened awareness of gender issues in NDT debate. There are a wide variety of issues which have come to the surface recently and it is important that we extend the discussion and debate on the multiplicity of concerns in order to comprehend the subject more fully. The particular issue this paper will address is the possibility that females and males have their debate performances evaluated differently. In NDT debate it may be difficult to identify an overall pattern of results that can be called sex bias. It is difficult to distinguish between a lack of success due to discrimination and a lack of success to a lack of talent, experience, or evidence. However, we can gain sight of consistent bias by examining the success of a large number of participants and trying to identify differences that can be attributed to gender and not any of the many other factors that come into play in determining who wins or loses a debate round. We fee6l that much can be learned by identifying the ways that debaters may have to compete on an uneven playing field and attempt to understand how these conditions are created. Gender differences have been pervasively examined in persuaded research. For example, it is not a typical for researchers to focus on differences in how men and women are persuaded Cooper, 1979; Cantor, 1976; Eagly, 1978; Leventhal & Cupchik, 1976; Losco & Epstein, 1975; Zillman & Stocking, 1976), differences in styles of communication according to gender (Andrews, 1987; infante, 1989, Mulac, Torborg & Bradac, I986), and how audiences react differently to male or female speakers (Burgoon, Dillard & Duran, 1983; Richmond & McCroskey, 1975; Ward, Seccombe, Bendel & Carter, 1985). In relation to competitive speaking events, there have been examinations of differences in speaking styles (Larson & Vreeland, 1985), different rates of participation for competitors (Dean & Dean, 1985; Friedley & Manchester, 1985; Nadler 85) judges (Kay & Aden, 1984), and differences in judging styles according to gender of the judge and speaker (Friedley & Manchester, 1987). Although there is a growing awareness among some in NDT about gender issues, the activity has not been very self reflexive in the recent past. Although Friedley and Manchester (1985) explored the female participation rate in elimination rounds during the 1984 National Debate Tournament, we wanted to examine the overall success rate of participants in relation to their gender. We were able to find three studies which examined this question, the most recent of which was about fifteen years old and studied high school debaters (Rosen, Dean, & Willis, 1978). Collegiate success rates have not been examined since 1972 (Hayes & McAdoo, 1972; Hensley & Strother, 1968). The most recent study has concluded that the state of research on the topic reveals that "mixed-sex teams appear to be superior, as indicated by the won-lost records in the present study ... An examination of neither ... rankings nor quality points reveals a sex difference in the present study" (Rosen, Dean, & Willis, 1978, p. 20). The need for a more recent examination is manifestly clear if for no other reason than much has changed in the intervening two decades. The average speaker points found by Rosen, Dean, and Willis, for example, ranged between 16 and 18. Additionally, speakers in the first position could, on average, out-point speakers in the second position, something implausible in the modern NDT context. in short, one is pressed to find contemporary relevance of the Rosen et al. data to collegiate NDT debate because, in addition to the differences noted above, they drew from a high school sample using a 25 point ballot. Further, in the Hayes and McAdoo study, ranks rather than speaker points were considered, a decision which would seem odd in the modern debate context. Ranks, when considered at all, are usually only the fourth or fifth tie-breaker for speaker awards. …

Argumentative Flexibility as a Factor Influencing Message Response Style to Argumentative and Aggressive Arguers.

Abstract: The study of interpersonal argument has generated a considerable body of research literature in the last decade. A variety of contexts in which interpersonal argument is cast have been investigated ranging from such specialized contexts as marital argument to the more generalized context of conversational argument. Despite this diversity of contexts, a consensus exists among many argument theorists regarding the value of argument within an interpersonal relationship. Johnson and Johnson (1979) in their review of over 100 published articles on conflict within the classroom context, conclude that arguing improves one's social perspective-taking or ability to infer what is important to each person. Rancer, Baukus, and Amato (1986) report that arguing improves a relationship by keeping it interesting and increasing mutual understanding. These outcomes do accrue without effort. As Infante (1988) stresses, interpersonal argument is more likely to achieve a positive outcome if arguers test each other's ideas rather than testing each other. That is, one's position on an issue may be attacked whereas attacks on one's self-concept may lead to destructive argument. Thus, arguers must be able to argue constructively. For Infante (1988), constructive argument requires that arguers treat each other as equals, establish attitudinal similarity, and demonstrate interest in each other's views. Infante's definition of constructive argument represents a second consensus among many argument theorists. That is, several studies have determined that constructive argument is more likely to lead to cooperative or collaborative outcomes than destructive argument. For instance, Roloff, Tutzauer, and Dailey (1989) examined the impact of relational processes in argument and found that a low interpersonal orientation adversely affected negotiation outcomes while conciliatory-based negotiation led to an increase in integrative or collaborative outcomes. Pruitt (1981) further suggests that information exchange will lead to collaborative agreement when arguers believe that each is concerned with the needs of the other. Other research also suggests that once bargaining begins, arguers' reactions to each other are frequently based on reciprocal action, including the making of concessions (Esser & Komorita, 1975; Pruitt, 1968 & 1971; Pruitt & Lewis, 1975). These studies suggest that arguers, out of practical necessity, if not philosophical principle, may better serve their argumentative ends by arguing in a cooperative manner. Thus, attending to the relational level of argument appears to have a direct influence on the content level of argument. These findings parallel Watzwalick, Beavin, and Jackson's (1967) distinction between content and relational messages. That is, a message includes both a content or cognitive level and a relational or affective level. As these theorists suggest, these levels are interdependent communication processes with each influencing the interpretation of the other. That is, the content of a message influences how participants define their relationship while the relational level influences how message content is interpreted. Wenzel (1990) demonstrates the importance of balancing the content level and the relational level when he states that a good argument must deal with the subject as comprehensively as possible, that arguers use candor in making their ideas clear, and that decisions be rigorously tested. However, as Wenzel also states, rules and principles alone cannot ensure critical discussion unless arguers bring "attitudes of the right kind" to an argument. Wenzel defines these attitudes consistent with several tenets of the "new rhetoric" philosophical movement of the 1960's and early 1970's. The new rhetoric focused considerable attention on communication outcomes, such as Simon's (1967) use of communication to reconcile differences and deescalate conflict and Ohm-ann's (1964) emphasis on communication to achieve harmony anti consensus. …

Argumentation, Communication, and Fallacies. By Frans H. van Eemeren and Rob Grootendorst

Abstract: (1994). Argumentation, Communication, and Fallacies. By Frans H. van Eemeren and Rob Grootendorst. Argumentation and Advocacy: Vol. 31, No. 2, pp. 111-113.

Debate and Dissent in Late Tokugawa and Meiji Japan

Abstract: Japan has often been portrayed as lacking traditions of rhetoric, public speaking, and debate. Acccording to this view, as expressed by Roichi Okabe, "Japan has not witnessed the development of any indigenous rhetorical theory and practice." (187). Both Western and Japanese communication scholars have argued that the supposed dearth of indigenous Japanese rhetoric is the result of strong cultural proscriptions, deep currents of resistance to "Western" logic, public discourse and the clear expression of opinion. Debate seems an especially alien activity from the essentialist view of Japan as a harmonious and homogeneous culture. The modern appearance of speech and debate activities in Japan is often attributed to contact with the West during the Meiji era (1868-1912) and to the efforts of Yukichi Fukuzawa and other "popularizers" of Western culture. Klopf and Kawashima, among others, insist that Japan's practice of debate is "based on its century-old history of Western speech education" introduced by Fukuzawa. (4). Becker also portrays debate as an alien activity introduced to Japan during periods of political Westernization in the Meiji era and again during the American occupation after World War II. As culture-specific transplants in strange soil, Becker argues, "these movements did not spread widely" or extend beyond periods of intense contact with the, Limited States. (Becker, "Japanese" 144). Such characterizations of Japanese history and culture as arhetorical or antirhetorical are based on myths of homogeneity and essential harmony that conceal centuries of ideological conflict, dissent, struggle, and repression in Japan. For the Japanese ruling elite and its supporters, the notion that dissent is somehow un-Japanese has along been used to justify the suppression, even execution, of those who engage in it. (Hane, Reflections 1-28). Myths of Japanese unanimity have real consequences. For the United States government, whose sponsorship and dissemination of "national character" studies during and before World War II continue to inform rhetorical scholarship on Japan,(1) pan, I portrayals of Japanese homogeneity have been used to justify "total war." Belief in Japanese predisposition to the "irrational" and "illogical," and in their supposed antipathy toward reasoned deliberation, strengthened American insistence upon area bombardment and unconditional surrender. (Dower 94-117; Hikins 379-400). More generally, characterizations of Japanese culture as hostile to argument, logic, declamation, exposition, and debate have fueled judgments of cultural inferiority when viewed from within a culture that equates such activities with civilization itself.(2) But in the past decade historians such as Mikiso Hane, Tetsuo Naiita, and J. Victor Koschmann have reviced the portrait of Japan's past. What has emerged is not the "relatively peaceful" arhetorical society described by Becker ("Reasons" 90) and others, but a country whose past three hundred years have been marked by great ideological and often physical conflict, and whose disputes have often been conducted and recorded in the form of debates. In this paper I will demonstrate that: (1) Japan had a rich and well-documented tradition of debate for centuries before its "opening to the West" in 1853; (2) Fukuzawa and other proponents of public political debate in the Meiji era had little meaningful exposure to Western theories or strategies of debate; and (3) The spread and subsequent decline of public political debate during the late Tokugawa and Meiji periods should be understood not as proof of "essential cultural qualities" or their absence, but as internal political developments grounded ill the turmoil of the times. Japanese Debate Traditions Notions persist that debate is somehow antithetical to Japanese culture or even that it is impossible to conduct in Japanese language. Even so respected an observer of Japanese culture as Edwin Reischuer note the absence of much genuine debate on the floor of the Diet and conclude that it is absent from Japanese culture in general. …

Sexual Harassment in CEDA Debate.

Abstract: At the 1992 SCA Convention in Chicago, CEDA (Cross Examination Debate Association) President, Brenda Logue, reported to the CEDA Commission on Women and Minorities her astonishment at the results of a survey conducted by Cynthia A. Szwapa concerning sexual harassment at an NDT (National Debate Topic) tournament. The commission, working to increase the participation of women in CEDA debate, agreed to investigate sexual harassment in the CEDA community. This essay reports the preliminary findings of surveys conducted at the Great Salt Lake Tournament at the University of Utah in January 1993 and the Saint Louis Invitational at Saint Louis University in February 1993. The analysis describes percentage responses to questions on the Sexual Experiences Questionnaire (Fitzgerald and Shullman). METHOD Sample The University of Utah sample included 214 respondents; 121 male debaters, 34 male coaches, 47 female debaters, and 12 female coaches. The Saint Louis University sample included 39 male debaters, 19 male coaches, 38 female debaters, and 5 female coaches, totalling 101 respondents. Another sample of 49 respondents was gathered at the CEDA National Tournament. This final sample was not included in this research because it represented only eight percent of the competitors and coaches in attendance. The Utah and Saint Louis Samples, on the other hand, represented nearly 90% of all competitors and coaches present. Procedure Tournament directors granted the CEDA Commission on Women and Minorities permission to administer the questionnaire. Surveys and envelopes were packaged with ballots during one of the debates. Judges distributed a survey, an envelope, and a letter explaining the survey to each competitor at the tournament. After respondents completed the survey and sealed it in an envelope, they returned it to the judge or put it in a survey response box at the ballot table. Although participation was voluntary; the majority of competitors and judges completed the survey. Instrument The survey included open- and closed-ended questions. The closed-ended questions were 11 items based on the Sexual Experiences Questionnaire (SEQ) developed by Fitzgerald and Schullman. Five levels of sexual harassment were assessed. These levels include: (1) gender harassment-generalized sexist remarks and behavior, (2) seductive behavior inappropriate and offensive, but essentially sanction-free, sexual advances, (3) sexual bribery-solicitation of sexual activity or other sex- linked behavior by promise or rewards, (4) sexual coercion--coercion of sexual activity by threat of punishment, and (5) sexual imposition--unwanted touching, fondling or grabbing. The survey items were adjusted slightly by Szwapa to suit the debate situation. Szwapa modified her survey by including spaces for the respondent to indicate gender (male or female) and role (coach or debater). On each item of the survey, respondents were asked to circle the response that most closely reflected their experiences with sexual harassment in debate. These options were (1) never, (2) once, and (3) more than once. If the respondents circled either 2 or 3, they were instructed to indicate whether the harasser was a coach, a debater, or both. TABLE 1 PERCENTAGES OF RESPONSES TO SPECIFIC ITEMS Male Male Female Female Debater Coach Debater Coach Item 1 Experienced one or more times 75.00 90.57 63.53 88.24 No response 0.00 0.00 1.18 0.00 Never experienced 25.00 9.43 35.29 11.76 Item 5 Experienced one or more times 25.00 30.19 64.71 64.71 No response 0.00 0.00 0.00 0.00 Never experienced 75.00 69.81 35. …

Sexual Harassment and Gender Discrimination in NDT Debate

Abstract: Sexual harassment in academic institutions has become increasingly prevalent. While the incidence may vary, scholars generally agree that at least 30% of college students will experience some form of sexual harassment (Dzeich & Weiner, 1984; Fitzgerald et al., 1988). Further, the incidence of harassment is not confined to any particular institutional setting. For example, Till (1980) indicated that sexual harassment plagues large and small universities, private schools, vocational schools and religious-affiliated schools alike. The ubiquity of sexual harassment behaviors in academia has prompted many colleges and universities to study harassment more rigorously. The debate community should also examine this issue. The purpose of this paper is to present the results of a survey regarding sexual harassment among women in NDT debate. The survey provided both qualitative and quantitative analysis of the issue of sexual harassment. This essay is limited to a report of the quantitative data based on the Sexual Experiences Questionnaire (Fitzgerald, et al., 1988). METHOD Sample The sample for this survey consisted of 20 female debaters and 6 female debate coaches attending a large national debate tournament. The survey responses represent roughly 50% of the female tournament participants. The average age of debate coaches was 28.8 and the average age of debaters was 19.6. Procedure Permission to conduct the survey during the course of the tournament was obtained from the tournament director. Because of the sensitive nature of the issue, the surveys were distributed personally by the researcher and research assistants. Participants were instructed, in both oral and written form, to return the survey directly to the researcher or to deposit it in a survey response box located at the ballot table. To ensure confidentiality, the survey response box was sealed to prevent unauthorized access. Participants were also instructed to seal their surveys in envelopes. Participation was voluntary. Instrument The survey offered items based on the Sexual Experiences Questionnaire (SEQ) developed by Fitzgerald et al. (1988). The SEQ provided a 28 item survey which assessed five levels of sexual harassment. These levels included: 1. Gender harassment: generalized sexist remarks and behavior; 2. Seductive behavior: inappropriate and offensive, but essentially sanction-free, sexual advances; 3. Sexual bribery: solicitation of sexual activity or other sex-linked behavior by promise or rewards; 4. Sexual coercion: coercion of sexual activity by threat of punishment; 5. Sexual imposition: unwanted: touching, fondling or grabbing. Two adjustments were made when using the SEQ for this study. First, the time constraints associated with the tournament required offering a smaller number of items. Initially, items were discounted which could not be adapted to the debate context. Since a factor analysis was not available for item loadings, remaining items were randomly chosen for each level of harassment. In this manner, 11 items were included which reflected the five levels of harassment. Second, SEQ survey items were adjusted slightly to reflect the behavior of debate participants. For example, an item testing gender discrimination included the following illustrator: "Do you perceive that your arguments or questions are treated less seriously than those raised by men?" This particular illustrator essentially substitutes "arguments and questions" for classroom comments. Substitution choices were guided by literature regarding student-teacher interaction (Sexual Harassment Panel of Hunter College, 1990). For each item, participants were asked to circle the response which most closely reflected their experiences. The response options included 1) never, 2) once and 3) more than once. If the participant circled either a 2 or 3, they were further instructed to indicate whether the person involved was a coach, debater or both. …

Administrative Judicial Rhetoric: The Supreme Court's New Thesis of Political Morality

Abstract: Legal critics Dellapenna and Farrell (1991) urge examination of "how modes of judicial reasoning and the discourse in which that reasoning has resided have changed." Such work is important, they note, because the discourse of law "structures the 'conversation through which democracy proceeds'". This essay supports Dellapenna and Farrell's perspective. Uncovering three judicial inventional strands--a rhetoric of efficiency, a revised rhetoric of reasonableness, and appeals to tradition and majoritarian ethics--the essay reveals how judicial discourse has been used to redefine the Court's role and the world-view presumed for its audiences. More specifically, this study shows how the resulting new "thesis of political morality" (Sager, 1990, p. 28) has transformed this nation's conception of democracy. Studies of judicial reasoning (Dworkin, 1986, Golden and Makau, 1982) reveal that Supreme Court inventional strategies both reflect and help create cultural norms, particularly those that govern institutional ethics and the ostensible grounds for institutional decision making. Upham's (1991) study of differences between Japanese and American methods of judicial invention supports this view. Upham's research indicates that although the actual legal results of cases in these diverse cultures are sometimes remarkably similar, the Justices' inventional strategies are strikingly different. According to Upham, the fundamental difference in rhetorical strategy "both exemplifies and creates a different understanding of the nature of society that may be fundamentally more important than any similarity in outcomes". White's (1984) research further supports study of judicial inventional strategies. He notes that the law "constitutes both the community and the culture it commands". The language of law is a language "in which our values and motives are defined, in which our methods of reasoning are elaborated and enacted; and it gives us our terms for constructing a social universe by defining roles and actors and by establishing expectations as to the propriety of speech and conduct" (White, 1984, p. 36).(1) Examining evolving judicial inventional strategies therefore provides valuable insight into shifting cultural norms. SETTING THE CONTEXT FOR JUDICIAL INVENTIONAL STRATEGIES From Marshall's famous Marbury opinion, written largely to legitimize the power of judicial review, to today's controversial decisions, Justices have crafted arguments responsive to societal standards of reasonableness (Murphy, 1964; Ball, 1978; Berkson, 1978; Golden & Makau, 1982; Makau, 1983, 1984a, 1984b). Throughout this history, however, critics have challenged judicial efforts to maintain an ethos of reasonableness. During this century, legal realists posed a difficult and prolonged challenge to the Court's ethos by publicly questioning, for example, the authenticity of the Court's reasoning strategies. The noted Realist Jerome Frank (1930) insisted that judges "in fact" start with conclusions and make efforts to substantiate them as they proceed. He argued that judicial decisions are primarily the result of hunches combined with a judge's entire life of experiences, shaped values, and beliefs. He urged both judges and scholars to acknowledge the tenuous nature of judicial decision making, thereby helping all involved refine techniques of prediction. The more recently evolved Critical Legal Studies Movement seeks even greater "realism."(2) Proponents of this perspective reject even the pretense of reasonableness in judicial decision making. They see instead the hand of politics (i.e., ideology) and economics behind every major Court decision, casting doubt on even the most zealous judicial effort to appear reason bound. But even adherents of the Realism and Critical Legal Studies (CLS) perspectives readily acknowledge that Justices seek to maintain an ethos of reasonableness. They recognize, too, the potency of judicial rhetoric. …

Women Candidates Going Public: The 30-Second Format.

Abstract: What happens when women become political candidates? Although more women ran for public office and won in 1990 and 1992 than ever before, entering the public realm that previously has been inhabited only by men is still a relatively new undertaking for women. The public/private paradigm (Garlick, Dixon and Allen, 1992) tells us that the public arena is the realm of men (politicians and businessmen), while the private sphere is the domain of women. When women show signs of possessing power and seek entry into the province of politics or business, they are often criticized for abandoning their traditional family roles. How then, does a woman successfully compete with the political opponent depicted by Theodore Roosevelt as "the man who is actually in the arena?" In particular, how do women develop arguments using the fast and furious format of the 30-second political ad, and does their use of this format perpetuate, modify or serve to disprove preexisting stereotypes about women? Women's roles in the political system have been the subject of considerable scholarly debate. Showalter suggests that women are a muted group interacting within a dominant group of men and that such dominant groups "control the forms or structures in which consciousness can be articulated. Thus, muted groups must mediate their beliefs through the allowable forms of dominant structures" (Showalter, 1983, p. 200). According to Spitzack and Carter "[a] small percentage of women gain access to dominant leadership studies. Membership is composed of privileged women who are acceptable by male standards, women whose leadership skills match those of their male counterparts" (1987, p. 416). They point out, however, that the extraordinary female is identified as well with her muted counterparts and her behavior is accordingly interpreted by gender criteria. In addition, to the extent that woman is defined as an other, "male definitions of competent leadership are adopted and female leadership styles are compared to them". As a rule, the muted group is compared to the dominant group and is found to be deficient. Thus, women leaders are considered less effective and less competent than male leaders. However, women who do exemplify competence in leadership roles are often viewed as "pushy, bitchy, hostile, overly-ambitious". We posit that the 30-second political advertisement is a male-dominant structure through which women must mediate their political "voice" and leadership credentials in order to reach their constituencies. Within this format, women must present both private and public credentials, which results in a fragmented narrative. This narrative form is what Flax describes, in referring to the postmodern writings of Derrida and Foucault, as "a series of 'positions' and a heterogeneous polyphony of voices" (Flax, 1990, p. 32). The individual narratives within the 30-second format are frequently broken and incoherent. Little more than media representations tie them all together. Throughout history, women have been portrayed as other, a comparison that empowers men and sustains a political economy based on gender. Women have been relegated to the private domain and labeled as dangerous and unnatural if insufficiently submissive. Today, private women who enter political life cannot match the sanctioned public power of men and are often criticized for abandoning their private lives. The woman exhibiting power is frequently belittled as incompetent or portrayed as threatening - a "witch" or "dragon lady" (Garlick, Dixon, & Allen, 1992). More men, as well as women, are beginning to accept the idea of a leadership role for women. Socialization patterns and the fact that women continue to have primary child-care responsibility, however, limit the degree to which women are able to enter public office. Women delay their entry into the public world, do not follow the traditional business or legal route into politics, and are disproportionately found in state legislative bodies which are close to their homes (Darcy, Welch and Clark, 1994, p. …

Is It More Than Rock and Roll?: Considering Music Video as Argument

Abstract: INTRODUCTION At 12:01 A.M. on August 1, 1981, in the Loft restaurant of Fort Lee, New Jersey, popular culture history was made. With the words, "Ladies and gentlemen, rock 'n roll," the Music Television cable network (MTV) began broadcasting nationwide, 24 hours a day. Now, more than a decade later, "MTV" seems synonymous with popular youth culture, with an estimated audience of 210 million in 78 countries (Wells, 1992, p. A8). MTV has estimated that, in any given week, 28 million viewers tune in to music television in the United States; 39 million in Europe. Further, record companies spend over 50 million dollars annually to make music videos (Ross, 1990; Wells, 1992). Music video, no longer an ephemeral fad, has become an enduring feature of popular culture; a feature of potentially influential social expression. "Music videos," Pat Aufterheide writes, "are pioneers in video expression, and the results of their reshaping the form extend far beyond the television set" (1986, p. 57). ABC television's Judd Rose, reporting on MTV in a Prime Time Live piece, suggests that "MTV's style, frenetic, nonverbal, and dazzlingly visual, has influenced everything from movies, to TV dramas, to commercials, even campaign ads." Further, Rose asserts, "MTV [and music video] speaks a language everyone understands, a language of images. Of course, what those images say is another matter" (Ross, 1990; see also Denisoff, 1989). Aufterheide surmises that "one of music video's distinctive features as a social expression is its open-ended quality, aiming to engulf the viewer in its communication with itself, its fashioning of an alternative world where image is reality" (1986). Music video involves the audience. "Part of music video's commercial success," Lisa St. Clair Harvey points out, "is attributed to the form's exceptional malleability; few other genres are as open to audience interpretation as are experiential, highly impressionistic music videos" (1990, p. 40). Citing the work of Muriel Cantor (1987), St. Clair Harvey asserts that music video audiences may desire to decode meanings in the television text. Music video appears potentially fertile with meaning. Stuart Hall comments that MTV is quite extraordinary. It takes fragmentation, the plurality of signification, to new heights. But I certainly couldn't say that it is unintelligible. Each so-called meaningless fragment seems to me rich with connotations. It seems perfectly clear where MTV comes from; indeed, it is almost too predictable in its 'unpredictability.' 'Unpredictability' is its meta-message. We know enough about the tendencies of mass culture for the last hundred years to recognize that MTV does not come from outer space. (Grossberg, 1986, p. 61) In sum, music video exists as a form of social expression in which audiences participate actively to interpret meaning. This suggests the potential for considering music video as persuasive argument; messages that advance claims in order to gain the adherence of viewers. This essay addresses music video as argument. It does so by reporting on one study that comprises part of a research project on music video and social influence. The study, involving almost two hundred student viewers, examines the extent to which people identify in music videos dominant claims that seek viewer adherence. As its grounding, this article presents a theoretical orientation and a review of relevant music video empirical research. Mediated Communication as Social Action This study of viewers' judgments about music video as argument reflects a perspective of communication as social action, as presented in the work of Anderson and Meyer (1988). These scholars note that "for most of the history of research in mass communication, content has been seen as a silver bullet shot from a media gun to penetrate a hapless audience". Audiences are not hapless nor passive. Media audiences participate actively in mediated communication; they construct meanings from the content they perceive. …

The "Three Doctrines Discussions" of Tang China: Religious Debate as a Rhetorical Strategy.

Abstract: Introduction In this essay I will be introducing the "Three Doctrines Discussions" of medieval China. These were imperially-sponsored debates between representatives of China's three major religious systems, these being Buddhism, Daoism, and Confucianism. These debates had a long history. They began during the Period of Disunion (221-580 C.E.), when China had splintered into a number-of separately-ruled, contending states, and they continued during the reunification of the empire under the short-lived Sui dynasty (581-617). After reaching their apogee in the early half of the Tang dynasty (618-960) they then underwent a decline in the mid-Tang and were abandoned after 870. This study of the "Three Doctrines Discussions" may be of interest to students of argumentation and debate in several ways.(1) The "Discussions" are one of the few instances in which the Chinese state sponsored semi-public, adversarial debates. Fortunately there is a wealth of historical materials and primary sources, including many verbatim accounts, which allows us to paint a fairly comprehensive picture of these debates and their development.(2) Despite the significant differences of language, philosophical heritage, and cultural context between medieval China and the contemporary West, I expect that the procedures, standards of judgment, and underlying rationale of these debates will be surprisingly familiar to Western-trained students of debate. Finally, the abundant records of these debates allow us to trace out a suggestive parallel between the emergence, evolution, and disappearance of the "Three Doctrines Discussions" and major shifts in their political context. In what follows I first briefly describe the precursors to the "Three Doctrines Discussions" - that is, the varieties of debate whose forms, topics, standards, and functions were the likely models for the "Three Doctrines Discussions." After describing the emergence, growth, and decline of the "Three Doctrines Discussions," I place their history within the larger story of Chinese dynastic politics. Based on this correlation, I propose that the evolution of these debates is best explained as an instance in which the legitimizing functions of the impartial judgment of reasoned debate were rhetorically exploited to political ends. Specifically, by appearing to engage in dispassionate, reasoned judgment of these debates, rulers sought to reinforce their ethos, and that of the dynasty, and thus to contribute to its legitimation. Conversely, the less need they had of such enhancement of their ethos, the greater the tendency to reduce the "Three Doctrines Discussions" to a ritual enactment of a debate, and finally to drop them entirely. Sources of the "Three Doctrines Discussions" First, let me briefly review the argumentative activities from which the "Three Doctrines Discussions" developed, an especially needful task given the common belief that China did not have a tradition of argumentation and debate (Becker 1986). During the Period of Disunion (220-581 C.E.) there developed two distinct practices of philosophical disputation. First, the Buddhists sponsored frequent debates on points of Buddhist metaphysics. These debates took place at the lecture halls associated with Buddhist temples, and they were open to all to attend and even to participate in. There was also a secular, private type of philosophical debate associated with "Pure Talk" (qingtan) activities. These sessions of disputation and explication, limited to invited guests, were drawn from the literati, and the topics ranged over the doctrines of many philosophical schools (Garrett 1993). In both these kinds of philosophical disputation the discussions concerned abstract metaphysical and ethical themes. There were widely-accepted rules of procedure that were quite similar for both. Seating was based on reputation as a debater; the more well-known the individual, the closer to the host's seat he was placed. …

The Case for Using NonTraditional Judges in Forensic Contests.

Abstract: The forensics community should reintroduce the use of nontraditional judges in forensics tournaments. Diversifying the judging pool, while challenging tournament directors, will improve the educational value of forensics. The addition of nontraditional judges also will strengthen public support of the activity, and help forensics increase cultural diversity. This essay will build the case for using more nontraditional judges in forensic contests. I will discuss three benefits of increased use of nontraditional judges and consider some workability issues connected with their use. TRADITIONAL VERSUS NONTRADITIONAL JUDGES: HOW BEST TO EDUCATE STUDENTS? We may define a nontraditional forensic judge as a person with either limited training in contest judging or limited current experience in judging. Authors sometimes describe judges with limited experience as lay judges. Lay judges typically did not participate in forensics while students. People with limited current experience may include competitively inactive former competitors or forensics teachers. The common characteristic of both groups is their relative unfamiliarity with the nuances of current forensic practices. They may understand the structures of forensics contests but are not familiar with how situational norms affect actual practice. The issue of judging qualifications in forensic contests is neither recent nor trivial. Cox and Honse (1991) describe the long running discussion, particularly in the debate community, regarding the necessity of using trained listeners to judge debates. This discussion has centered on two questions: determining the goals of contest speaking; and identifying the necessary qualifications of a judge to achieve those goals. Most observers agree that contests include both educational and competitive aims. Students engage in contest speaking to improve their skills in areas like research, analysis and communication. Simultaneously, they are also competing against each other in pursuit of competitively driven outcomes, such as awards and other recognition. The role of competition is to provide an experiential learning framework for students to test and improve their learning skills. Competitive and educational goals in forensics often conflict. Competition sometimes causes people to short-cut appropriate educational behavior while pursuing competitive goals. This tension between competitive and educational goals underscores the important roles played by contest judges. Bartanen (in press) identifies three functions of the contest judge: educator, referee, and trustee of the activity. As an educator, the judge must help students learn research, analysis and communication skills by providing competent and appropriate comments about the content of their speeches or arguments. The educational function requires the judge to understand and apply the fundamentals of debate or individual events and to co-gently identify areas needing improvement. As a referee, the judge must appropriately apply contest rules and render a fair and impartial decision. This referee function requires the judge to understand both the structural (contest rules) and situational (nuances of competitive speaking and debating) elements of competition. As a trustee, the judge is responsible for maintaining the ethical and aesthetic standards of the activity. The judge must represent the larger community and apply aesthetic, ethical and rational standards that reinforce the utility of forensics as rational discourse. The judge, in other words, insures that debaters and speakers employ (in Wallace's use of the term) "good reasons." Educators disagree about the necessary qualifications of people to fulfill these roles. Many educators believe that people trained in competitive forensics are the best contest judges. Robert Gass (1988), for example, advocates the use of trained judges who can promote high educational standards. Other critics (cited by Cox and Honse) oppose nontraditional judges because they believe, usually based on anecdotal evidence, that those judges evaluate contest winners randomly or only on contestants' delivery skills. …

Beyond Tabula Rasa

Abstract: Tabula rasa is no longer secure. The assumptions that stand watch at the frontiers of that perspective are no longer sufficient to turn are the foreign elements that threaten its purity. Proponents of the tabula rasa judging philosophy have erected a fortress around the dialectic of academic debate, where only competitors are offered asylum. Judges are beggars who cannot find work in that dialectic and are turned out at the city gates. They are marginalized by the assumption that they have no role to play in the competitor's deliberation. The judges are able to infiltrate the castle by day amidst the mob of traders and towns-people who move through its gates. But very evening when the crowd thins and the gates are locked for the night, the beggars are driven back into the countryside where they chronicle the day's events. Though alienated from debate's dialectic, tabula rasa judges have found their niche beyond its confines as historians. The subjects of this history understand that there is no such thing as an objective rendering of the facts, and at night steal away to ;Appeal for a more prominent place in the hermits' accounts. This dialogue has opened up under the nose of the night watch, and it is bringing down the walls as surely as any siege. Tabula rasa is the Latin term for a cleaned tablet, one that has been erased and is ready for new marks. Academic debate borrows the term from empiricist philosophers who hold that, prior to sense perception, the mind is as blank as a tabula rasa. There are no innate ideas. To guess from its name, then, the tabula rasa judging philosophy is one in which the judge "enters the debate tabula rasa; to determine the outcome solely on the basis of argumentation in the round (Ulrich 1979, p. 2). The tabula rasa judge defers to the competitors, not only on substantive issues, but on procedural issues and standards for argument evaluation. The competitors distinguish between good and bad arguments, and even determine what constitutes an argument at all. In this way tabula rasa is not a judging paradigm in the traditional sense. Whereas traditional paradigms impose standards upon competitors which are beyond appeal, the tabula rasa perspective allow,; new standards to be developed in every round.(1) In practice as well as in literature, tabula rasa is not the purist conception that Ulrich articulates; Ill the preceding account of tabula rasa, all standards are generated by the competitor s dialectical exchange. The judge looks to that dialectic, and not to her own predispositions, to decide which team has won the debate. In fact, "decide" is the wrong word. Ideally, the judge merely "records" the winning team on the ballot. But this ideal has been attacked by critics who argue that the dialectic cannot function absent the judge's imposition of standards for argument evaluation.(2) Argument over the nature of argument is a circular endeavor because the warrant always presupposes the claim. Meaningful progress can only occur in a dialectical situation when the disputants are bound to rules of argumentation that are themselves beyond argument. This criticism, fatal to the purist conception of tabula rasa, has been conceded. Even advocates of tabula rasa acknowledge that judges must impose, some standards for argument evaluation, upon competitors.(3) This concession manifests the disparity between the tabula rasa philosophy as it is put into practice and the tabula rasa ideal that often parades in its place. The tabula rasa ideal asks the judge to arrive at a decision that does not contribute to the competitor's exchange. Remember, however, that the ideal is unattainable; judges must in fact contribute to the dialectic, if only by supplying foundational standards for argumentation. The tabula rasa judge confesses the need to impose standards of some kind upon competitors, but the judging philosophy she adheres to tells her only that it would be best if she could impose no standards at all. …

Teaching and Directing Forensics. By Michael D. Bartanen

Abstract: (1994). Teaching and Directing Forensics. By Michael D. Bartanen. Argumentation and Advocacy: Vol. 31, No. 2, pp. 113-115.

Referential Argumentation and Its Ethical Considerations in Televised Political Advertising: The Case of the 1993 Canadian Federal Election Campaign.

Abstract: All political communication includes a set of denotative references to individual or collective entities. To a great extent, politicians develop their argumentative and persuasive strategies through the use of these references. In an earlier study (1994a) concerned with televised political debate, I put forward the hypothesis that the fundamental referential network of political argumentation includes four main elements: self-reference, reference to the adversary, reference to other politicians, and reference to experts. I also attempted to demonstrate how these types of references form a basis for a very specific type of arguments called the ad arguments. Politicians refer to themselves or their own party when they attempt to illustrate their credibility. They refer to their adversaries or their adversaries' parties in order to cast doubt on the opponent's ideas or abilities. For these same reasons, they sometimes refer to other political figures, be they allies or adversaries, or to nonpartisan players whom they welcome into the debate by virtue of their recognized expertise. Of course, other kinds of denotation do exist in political communication. For example, politicians make great use of reference to the electorate. But if we consider only the actors on the forefront of the political scene, it seems reasonable to limit the true references in political communication to self-reference, reference to the adversary, reference to other politicians, and reference to other experts. The ad arguments regroup a certain number of arguments which we have named beginning with the Latin prefix "ad". Among these ad arguments are the ad hominem argument (an attack on an opponent's person rather than on his or her ideas), the ad verecumdiam argument (an appeal to authority), the ad populum argument (an appeal to popular sentiment or prejudices), the ad misericordiam argument (an appeal to pity and sympathy), the ad baculum argument (threatening), and the ad adversarium argument (the diversionary tactic whereby discussion is turned to the subject of a common adversary or enemy). Ad arguments have been historically identified with fallacies and therefore considered as invalid or faulty arguments closely related to sophisms, paralogisms, and other forms of pseudo-reasoning. Aristotle analyzed certain ad arguments in his On Sophistical Refutations and in the Rhetoric, and Locke proposed an initial characterization of certain ad arguments in An Essay Concerning Human Understanding. However, only recently have scholars begun to develop a systematic theorisation of ad arguments in a theory of fallacies, the first being Hamblin (1970), followed by Woods and Walton (1989 and 1982), Walton (1987), Engel (1982), and many other authors who have produced pertinent or synthetic works. Among the latter, we must mention van Eemeren and Grootendorst (1992) and van Eemeren, Grootendorst and Kruiter (1987) on the subject of argumentation in communication. Each of the different types of references can be used to support an ad argument. For example, self-reference and reference to experts can be used as a basis for an ad verecumdiam argument. Reference to an adversary is often a basis for an ad hominem argument. The ad adversarium argument, and certain more specific forms of the ad hominem argument, such as the "guilt by association" argument (whereby the discredit commonly attributed to a group or individual with which an opponent associates is transferred onto the opponent), are based on reference to another politician. One could also imagine that, under certain circumstances, references to an individual or individuals could allow for the development of ad populum, ad misericordiam, and ad baculum arguments. I propose to examine the structure of the referential network developed in televised political advertising as well as the types of arguments, particularly the ad arguments, to which these references contribute. I also discuss the ethical implications of referential argumentation and reveal a distinction between ad argument and fallacy. …

Spanning Ideological Chasms: The Response to Conceptual Segregation in "Bowers v. Hardwick.".

Abstract: I On July 13, 1986, the United States Supreme Court released a 5-4 decision in the case of Bowers v. Hardwick in favor of the state of Georgia, rejecting Michael Hardwick's claim that the state law prohibiting consensual sodomy violated the constitutional right to privacy that had overturned similar state laws against contraception, abortion, and interracial marriage. From the beginning, the decision departed from standard Court practice. Justice Powell initially voted to overturn the law, resulting in a 5-4 decision for Hardwick, but then changed his vote and affirmed the law's permissibility (Taylor, 1993). At the decision's announcement, Justice White, author of the majority opinion, and Justice Blackmun, author of an angry dissent, both took the unusual steps of reading portions of their opinions aloud from the bench (Taylor, 1986). While conservative religious groups applauded the ruling, an editorial in the New York Times called it "unreal, frightening, and an unimaginable reversal of our previous impression of the judiciary as a protector of individual freedom against parochial intolerance" (Smith, 1986). Eight years later, Bowers v. Hardwick has yet to fade into the law books. At the time of the decision, many observers warned that it signalled the beginning of the end for judicial protection of the right to privacy, the right to make decisions that concerned intimate relationships and procreation, without government interference (Marcus, 1986). Four years later, a study by the Alliance for Justice cited one hundred references to Bowers in state and federal court decisions which curtailed the right to privacy (Greenhouse, 1990). Bowers continues to play a significant role in shaping American jurisprudence. One constitutional law professor referred to the justices' framing of the issues as "a methodological dispute which is of great importance, indeed as important as the outcome of the case itself" (Agneshwar, 1990, p. 3). Another legal commentator elaborated: Legal arguments, method, or analogical reasoning may mean little to the committed, both on the left and on the right of the legal-political spectrum. But Justice Powell's change of mind is credible evidence that, for less doctrinaire jurists, cogent legal argumentation and sound analogical reasoning are indeed "outcome determinative." For this reason, it is now important to reread Bowers v. Hardwick; and to analyze closely the legal method and arguments of the majority, concurring and dissenting opinions. (Wishingrad, 1990, p. 2) II Ross (1991) has suggested that each person who reads an opinion authored by a Supreme Court justice assumes the responsibility of critic: After reading the opinion, no morally neutral position is available to us. If we speak about the case, we take on the role and responsibility of the critic. The discourse of the critic is the discourse of normative analysis. In one way or another, we speak of what ought to be. Our membership within the community of law makes even silence a morally charged position. Several authors have written that the Court's authority stems from the cogency of reasons and arguments that bolster its decisions and are explained in its opinions (Chemerinsky, 1987; Smith, 1991; Wardle, 1980). Alternatively, Choper (1980) argues that the mystique of the Supreme Court, the pomp and ceremony surrounding its operations, serves to create awe in the minds of its audience, which in turn serves as the basis of the Court's legitimacy. Zeppos (1991) draws upon this idea to explain the Court's delicate, and occasionally impenetrable, treatment of controversial issues. According to Zeppos, the Court's majority opinions are intended not to reflect accurately the Court's reasoning in rendering a decision, but rather to bolster the decision, to address the sources of controversy and attempt to quell them before an outcry can be raised. This preemptive strategy builds a degree of dishonesty into the system: The point of formalist reasoning is to legitimate judicial power by not disturbing the complacency held by most people. …

A Critical Analysis of Objectivity in the Legal Sphere.

Abstract: Objectivity has received a bad name. This presents a special problem to the field of law, and it is a problem that argument scholars are in a position to shed some light on. Setting aside the radical Critical Legal conclusion that the only consistent action is to do away with law altogether (for example, Gable, 1980), there is on the one hand the conclusion that, so long as a legal system exists, it is necessary that judges remain objective (Bennett, 1984). The reason is obvious. The point of law is to enforce justice. However, if judges are deciding on arbitrary bases, then justice cannot be served. But, on the other hand, there is the claim that objectivity cannot be obtained at all. What is to be done with the Critical Legal (and, before them, the Legal Realist) claims that "black letter" law does not constrain judges? The challenge is to find a way to conceive of objectivity that recognizes both its necessity and its elusiveness. It is not enough to merely reassert outmoded assumptions about objectivity nor to viciously "trash" them without leaving adequate ground for social action. Instead, it might be more productive to try to understand how objectivity is constructed and what impact those constructions have on specified outcomes. A close reading of legal decisions is at least one useful vehicle to understand how judges are constructing their own definition of objectivity. KEY CONCEPTS Much of the present debate about objectivity may be confused by static definitions of the term which attempt to define it in a bifurcated fashion rather than in a way that explores its multi-form manifestations. Given this confusion, the search for objectivity ought to begin with a definition, and the process of definition should start by distinguishing three possible meanings. The first is the logical positivist definition, which assumes facts are "thinglike objects existing outside and independent of scientific observers" (Krippendorff, 1989, p. 69), that the facts will yield a single, universal truth (Krippendorff, 1989), and that we only "find" rather than "create" the conclusions. The counterpart in law is legal formalism wherein the law is a thinglike object, and judges "find" the correct decision and apply it to the facts of the case to produce a single, correct decision. Giddens (1989) concludes that these assumptions are "dead;" untenable for a host of reasons so vast as to defy a simple summary. Legal scholars and this author as well agree with Giddens' assertions. As early as 1921, Cardozo (1921/1964) declared the mechanical view of law a dead issue, a useless straw-person argument that had no function other than as a foil for the Realists. Schubert (1964) found no signs of life for the mechanical view four decades later, and Murphy and Tanenhaus (1972) reported that it was every bit as extinct as the dinosaurs in Michael Crichton's Jurassic Park. A second possible definition is offered by Bennett (1984), who argues that judges are objective so long as they rely on the "use of sources for decision external to the decider's own (or subjective) standards or values, without necessarily insisting that those external sources be authoritative". Such a definition is at least more progressive but remains short of the mark because (a) it does not specify at all which standards are to be relied on, leaving the process "objective" but highly arbitrary, and (b) the distinction between those beliefs which are the judge's own and those which are external is blurry at best. Some impressive empirical research shows that judges are likely to rely on external standards which closely mirror their own (Nagel, 1963). A third possible definition of objectivity is a consensual one. In this view, a concept becomes more objective when a consensus of informed opinions adhere to the idea. Sandmann (1991) has usefully described the idea as the application of field theory to law; Sandmann also correctly points out that such conceptions, although they have much to offer, do not really address the problems of objectivity but merely expand the circle of subjective arguments. …