This chapter describes the traditional understanding of the nature of lawmaking by appellate courts in America. Often labeled as formalism, this conception of appellate court lawmaking is understood as being largely objective, highly logical, and fixed in nature. From this perspective, appellate judges were thought, while resolving specific disputes, to be also striving to develop and to refine the existing common law in a given jurisdiction so that it more and more came, over time, to accurately reflect a presumed ideal version of legal regulation. This activity was thought to be very similar in nature to the work of natural sciences when they seek to reconcile specific experimental results with current understandings and thereby move a field of science ever closer to an objectively correct account of the natural world. Accordingly, the ideal version of legal doctrine toward which formalist common law lawmaking aspired was commonly known as the natural law.

Integrating tradition in legal arguments remains an effective persuasive strategy, serving as a source of legitimacy and appeal, fostering the establishment of a shared identity between the speaker and the audience, and cultivating a sense of belonging to a distinct group with defined notions of its identity. This chapter examines the strategic utilization of the concept of tradition in forensic rhetoric. It investigates how communicators shape and influence discourse within forensic settings by leveraging enduring cultural norms, purported intentions and beliefs of esteemed historical figures, and narratives concerning a people’s historical trajectory. By examining cases from the popular courts of classical Athens and drawing parallels in contemporary American legal arguments, the chapter identifies instances where tradition serves as both a stabilizing force and a catalyst for innovation, and sheds light on the importance of tradition as a cornerstone of the rhetorical strategies of advocates on all sides of an issue, including those challenging the status quo. Consequently, the chapter contributes to a deeper understanding of the rhetorical functioning of tradition, offering insights into the intricate interplay between the construction of persuasive narratives grounded in tradition and legal concepts such as precedent, original intent, and legal interpretation.

We began this volume by describing it as a mosaic of theories and texts contributing tesserae – the small pebbles, stones, and glass that make up mosaics – to a larger picture of legal rhetoric. We are proud of the ways that this volume fills in a segment of this picture. First, the volume points to the richness of ancient texts. While much contemporary American legal thought relies on Aristotle, his work is often mischaracterized or simplified. The chapters by Mark Hannah and Jay Mootz on ethos (Chapter 2) and by Susan Tanner on the enthymeme (Chapter 5) challenge and complicate these received understandings. Other contributors illustrate the continued relevance of other figures of Greece and Rome – Brian Larson’s chapter on Cicero (Chapter 4), Vasileios Adamidis and Laura Webb’s chapter on the Attic orators (Chapter 3), and Beth Britt’s chapter on a text by an anonymous sophist (Chapter 13) – while Rasha Diab rereads early Arab-Islamic discourses on women’s rights (Chapter 9).

This chapter examines the role of enthymemes in legal argumentation, focusing on the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. It argues that while legal reasoning is often presented as syllogistic, it should instead be understood as operating through enthymemes, which allow for the strategic omission of premises and the incorporation of implicit assumptions. The chapter analyzes the enthymematic structure of the Dobbs decision, revealing how Justice Alito’s opinion employs unstated premises and narrowly defined categories to overturn Roe v. Wade while maintaining a veneer of logical consistency. The chapter concludes that acknowledging the rhetorical nature of legal argumentation is crucial for understanding the complexities and nuances of judicial decision-making and the interplay between logic, persuasion, and societal values in shaping legal outcomes.

Michael Calvin McGee characterizes the ideograph as a link between rhetoric and ideology. This chapter explores the development of the ideograph <police power> in the time leading up to, and the court’s opinion in, the landmark case Floyd v. City of New York (2013). In this case, a bright spot in New York’s sullied history of stop-and-frisk, twelve Black and Hispanic individuals succeeded in a class action lawsuit against the city, alleging that the NYPD’s use of stop-and-frisk policy violated their Fourth Amendment right to be free from unreasonable searches and seizures and their right to equal protection of the laws under the Fourteenth Amendment. The chapter shows that ideographic inquiry offers more than a useful tool for education and analysis or a method for predicting societal beliefs and behaviors: It is a force for persuasion.

This chapter analyses the consequences of the paradigm shift from formalism to instrumentalism on the activity of legal scholarship. Under a traditional formalist conception, the activity of appellate courts in making and developing common law and the activity of legal scholars studying and writing about that lawmaking activity are in close harmony. The unifying feature of both endeavors is a mastery and an application of traditional formalist legal analysis. Both courts and legal scholars are focused on the process of deductively applying identified first principles to novel legal issues as a way of determining logically required resolutions of those issues. They are also both involved in the process of refining an established body of common law to accommodate new factual disputes as they arise and to incorporate the preferred resolution of novel issues.

The shift from formalism to instrumentalism profoundly disrupted this harmonious synergy. Much in the same way that the intellectual work of appellate courts changes fundamentally under instrumentalism, so too does the professional posture and responsibilities of legal scholars.

This chapter offers a comprehensive account of modern legal scholarship in the current instrumentalist era.

Tracing early Arab-Islamic iterations of women’s rights, this chapter revisits Prophet Muḥammad’s “Farewell Speech” (khuṭbat al-wadā‘), which is often in/directly invoked in vernacular discourses to structure arguments for women’s rights. Situating this speech within a discourse on equality and positive/negative rights and obligations, this chapter sheds light on early Arab(ic)-Islamic discourses on women’s rights and uses the concept of vernacular rhetoric of human rights to draw attention to more recent iterations of women’s rights. The chapter fast-forwards to a speech on women’s rights by Malak-Hifnī Nāṣif (1886–1918), Egyptian writer, intellectual, and reformer, whose pen name is Bāhithat al-Bādīyah. She proposed ten articles to promote women’s rights, including marital and epistemic rights. Finally, the chapter moves to 2019 and the highly publicized Arab Charter on Women’s Rights launched by the Federal National Council of the United Arab Emirates in conjunction with the Arab Parliament. The chapter uses these three iterations of women’s rights to underline key topoi of (women’s) rights discourse.

Common law in America is the product of the largely independent work of thousands of different appellate judges working in hundreds of different appellate courts operating in more than fifty different jurisdictions. In characterizing this system as having experienced a profound paradigm shift from formalism to instrumentalism during the twentieth century, one is not suggesting that every appellate judge on the bench before 1,930 was a staunch formalist and that every appellate judge sitting after 1,970 has been a diehard instrumentalist.

Similarly, the legal realist movement need not have definitively established the philosophical impossibility of formalism in order to have effectively toppled it as the conventional understanding of appellate lawmaking, and to have it eventually replaced with instrumentalism. The most potent and persuasive thrust of the legal realist critique was demonstrating that formalism was advancing a false narrative of appellate court decision-making and thereby obscuring the real factors that were driving appellate court judgments.

Despite the current consensus regarding these matters, a practical and tangible transition from formalism to instrumentalism has been long delayed and is, in many ways, not yet even on the horizon. There are a number of institutional reasons for this continuing phenomenon.

At some point, the necessary interpretation of vague, abstract, and nonspecific provisions in constitutions, including the United States Constitution, places appellate courts, including the United States Supreme Court, in a jurisprudential position very similar to the one they occupy when engaged in traditional common law analysis and lawmaking. Working out the specific doctrinal meaning of constitutional phrases such as “free speech,” “establishment of religion,” and “equal protection” is a jurisprudential task not unlike working out the specific doctrinal meaning of “duty,” “breach,” or “causation” in the common law of negligence.

This means that as a practical judicial matter, the development of constitutional law is often very similar in nature to traditional common law lawmaking. Thus, a court such as the United States Supreme Court can accurately be thought of as often operating like a common law court, despite the relative paucity of federal common law.

This chapter takes advantage of this insight to apply the nature of the paradigm shift from formalism to instrumentalism, and its many consequences, to the area of constitutional law. More specifically, it offers an example of instrumentalist common law analysis applied to the constitutional law free speech doctrine of prior restraint.

This chapter explores the US Supreme Court’s “shadow docket,” the growing number of emergency orders and summary decisions that lack the transparency and consistency of cases granted and decided on their merits. It examines the Court’s practices in the shadow docket through the lens of the modern classic, Perelman and Olbrechts-Tyteca’s The New Rhetoric, which itself adapted and adopted many concepts from the ancient Western rhetorical tradition. It then applies this lens to Roman Catholic Diocese of Brooklyn v. Cuomo, a 2020 shadow-docket case relating to state restrictions on religious gatherings during COVID.

This chapter compares two very different authors separated by almost four centuries on the problem of women’s social position. Mary Astell, one of the earliest English feminists, examined these questions in 1694 in A Serious Proposal to the Ladies. She believed that women were not living up to their intellectual potential and were relegated to the realm of trivia and frivolity by the social norms of the period. In 2019, the American Bar Association published a report entitled Walking Out the Door: The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice. Focusing on America’s 350 largest law firms, the report found that women with more than fifteen years of experience are leaving law firms in droves. Like Astell, the report attributed this failure to thrive to male-created cultural norms. Although the two authors agree that women should be able to thrive in a man’s world but aren’t doing so, they rhetorically engage the problem very differently.