13.1 Introduction
Law schools should teach students not just to think like a lawyer but to listen like a sophist. The connection between these two rhetorical capacities was made clear by Anne-Marie Slaughter (Reference Slaughter2002), then a professor at Harvard Law School, when addressing students who had just completed their first year:
You are now all well on your way to that magical state that is the end-product of your first year in law school: thinking like a lawyer. So what have we taught you? Thinking like a lawyer … means that you can make arguments on any side of any question. Many of you resist that teaching, thinking that we are stripping you of your personal principles and convictions, transforming you into a hired gun. On the contrary, learning how to make arguments on different sides of a question is learning that there are arguments on both sides, and learning how to hear them.
Although not always recognized as such, these are ancient ideas and tensions. Teaching students to argue on either side of a question was common among sophists but decried by Plato for distracting speakers and listeners from truth and justice. Today, this practice is a given in legal pedagogy, embedded in the case method itself (Sullivan et al., Reference Sullivan, Colby, Wegner, Bond and Shulman2007, p. 186). Less prominent in contemporary legal education is a focus on hearing. Yet for the ancient Greeks, listening was a rhetorical art (Johnstone, Reference Johnstone2009).
This chapter explores the anonymous sophistic text Dissoi Logoi (written about 400 BCE) as a way of emphasizing the need to educate future lawyers not just to argue but to listen. Sophists were traveling intellectuals who in the fifth century BCE taught rhetoric, politics, and ethics in the newly emerging democracies of Greek city-states. Through their teachings, sophists equipped citizens (free, native-born men) to participate in civic life, especially to speak in law courts, as there were no professional lawyers. Although the sophists were not a monolithic group, the overarching purpose of their pedagogy was “to demonstrate that the world could always be recreated linguistically, restated in other words, and thus understood otherwise” (Poulakos, Reference Poulakos1994, p. 25). The world could always be “understood otherwise” because truth for the sophists was not certain and timeless but probable and contingent, something they learned through exposure to different cultures through travel.
The Dissoi Logoi illustrates the concept of “dissoi logoi” (or twofold arguments), an idea widely credited to the sophist Protagoras, but it also contains evidence of the sources of sophistic invention, namely listening to others. Like historian of rhetoric John Poulakos in his writing about the sophists, I seek less to arrive at fixed meanings of the Dissoi Logoi than to approach it as an “elusive” text that “can stimulate readers to rethink the constitution of their own lives” (Poulakos, Reference Poulakos1994, p. 3). In particular, I connect the Dissoi Logoi to the contemporary notion of rhetorical listening – as theorized by Krista Ratcliffe (2005) – using appellate and North Carolina Supreme Court opinions in State v. Norman (1988 and 1989, respectively), a case about a woman convicted of voluntary manslaughter in the death of her abusive husband. State v. Norman is included in a number of criminal law casebooks, the compilations of opinions that dominate contemporary legal education. In the popular casebook analyzed in this chapter, editorial decisions thwart the efforts of readers to hear arguments on either side of this case. I use my analysis of this casebook to consider the possibilities for rhetorical listening in legal education more broadly. I argue that legal education should encourage students to listen rhetorically to the variety of materials they encounter – in casebooks and elsewhere – to hear not only the multiple voices present (and missing) from cases but also the voices framing them. My goal is to show how rhetorical listening can help law students and lawyers learn to avoid jumping to conclusions based on stereotypes, a prerequisite of cultural competence.
13.2 Dissoi Logoi and Rhetorical Listening
Dissoi logoi is both a concept and the name of a text. The concept is thought to have originated with Protagoras, although we have no text on the subject from Protagoras himself. Instead, as rhetoric scholar Edward Schiappa notes, a number of ancient Greek writers credit Protagoras with the idea “that there are two logoi in opposition about every ‘thing’” (Schiappa, Reference Schiappa2003, p. 89). According to Schiappa, many translations reduce the idea “to the proposition that a debate is possible on any topic” (p. 90). These translations, he says, misinterpret Protagoras to be speaking narrowly about argumentative skills rather than more broadly about the relationship between language and reality, which he understood to concern the unity of opposites (p. 92). Protagoras’s notion of dissoi logoi, he argues, is more accurately a claim that “there are two opposing ways (logoi) to describe, account for, or explain any given experience” (p. 92). As historian of rhetoric Susan Jarratt explains, Protagoras understood dissoi logoi as the foundation for seeing experience as the only source of knowledge (Jarratt, Reference Jarratt1991, p. 50). Fellow rhetoric scholar Poulakos elaborates, explaining that “Protagoras’ notion of dissoi logoi provides a worldview with rhetoric at its center … [T]his worldview demands of the human subject a multiple awareness, an awareness at once cognizant of its own position and of those positions opposing it” (Poulakos, Reference Poulakos1994, p. 58).
Legal scholar Francis J. Mootz sees in dissoi logoi the foundations of a rhetorical knowledge useful for law. The concept advances the idea that while knowledge is not absolute and eternal, neither is it completely relative. Instead, it “emerges in the creative refashioning of linguistically structured symbols of social cohesion by members of the public” (Mootz, Reference Mootz2006, p. 39). For law, the implications are “pragmatic, epistemic, and ethical,” beginning with the idea that lawyering is comprised primarily of counseling clients and negotiating with other professionals (pp. 128–129). Legal scholar Eileen Scallen, who calls herself “a cheerful, unrepentant, out and proud, latter-day Sophist” (Scallen, Reference Scallen2006, p. 923), also values the sophists for their “contingent, but practical kind of truth,” evidenced by the Dissoi Logoi (Scallen, Reference Scallen2003, p. 819). She considers their pragmatic approach to conflict particularly useful for teaching advocacy, procedure, and evidence.
The text known as Dissoi Logoi, which appears incomplete, has no title in the original but is so named because of its opening words: “Two-fold arguments [dissoi logoi] concerning the good and the bad are put forward in Greece by those who philosophize” (Sprague, Reference Sprague1968, p. 155). Many scholars estimate its date at 400 BCE, about a decade or two after the death of Protagoras. The text was found appended to the manuscripts of Sextus Empiricus, first published in 1570, and compiled with other pre-Socratic fragments into a critical edition (published in Greek and German by Hermann Diels) in Reference Diels1903. It has only relatively recently been available in English. It was first translated into English by Rosamond Kent Sprague in 1968, and the first extended scholarly discussion of the text appeared in the introduction and notes to T. M. Robinson’s English translation in Reference Robinson1979. As translated by Sprague, the text is about 5,400 words long.Footnote 1
The first four sections of the Dissoi Logoi are arguments about pairs of terms (good/bad, seemly/disgraceful, just/unjust, and truth/falsehood). For each pair of terms, the author first argues that their meaning depends on context (e.g., “death is bad for those who die, but good for the undertakers and gravediggers”) and then that their meaning is universal (e.g., “the good is one thing and the bad another, and … as the name differs, so does the thing named”). The fifth section concerns whether all things are the same or different. The final four sections address the teachability of virtue, the assigning of public offices by lot, the qualities of a good speaker, and the training of memory. Although scholars disagree on whether the text has a unified theme, Robinson (Reference Robinson1979, p. 79) argues that all the topics cohere under the theme of participation in public life.
Because of its association with sophistic ideas, most scholars see the text as a pedagogical artifact, a compilation of lecture notes created by a speaker or listener (Kerford, Reference Kerford1981). Although the writer was dismissed by Diels in Reference Diels1903 as untalented because of inconsistencies in the arguments and argument structures, Robinson (Reference Robinson and Popkin1996) argues that the text demonstrates full awareness of contemporaneous philosophical discussion. For this reason, Robinson sees the Dissoi Logoi as a “genuine teaching manual for sophists” (p. 32) that compels those reading or listening to assess the arguments for themselves.
What can the Dissoi Logoi teach contemporary lawyers and legal educators? To be sure, the text illustrates how to argue on both sides of a question, linking contemporary legal education and practice with the rhetorical tradition. What classicist Michael Gagarin writes about the practice of dissoi logoi for the sophists – that it helped students “to explore new ways of thinking about ethical, legal, and political issues” (Gagarin, Reference Gagarin2002, p. 22) – is equally applicable today. More significantly, though, it demonstrates the contingency and cultural specificity of knowledge and helps us recuperate the neglected rhetorical art of listening to recognize that knowledge, a capacity sorely needed by practicing attorneys.
Many scholars in rhetoric have focused on the multicultural perspective evidenced by the text, particularly in a passage on the “seemly and disgraceful.” In this passage, the writer compares how pairs of cultures view the same practices, as in these two examples: “To the Spartans it is seemly that young girls should do athletics and go about with bare arms and no tunics, but to the Ionians this is disgraceful … The Massagetes cut up their parents and eat them, and they think that to be buried in their children is the most beautiful grave imaginable, but in Greece, if anyone did such a thing, he would be driven out of the country and would die an ignominious death for having committed such disgraceful and terrible deeds” (Sprague, Reference Sprague1968, p. 158). For rhetoric scholars Patricia Bizzell and Bruce Herzberg, the passage reflects the pan-Hellenism of the sophists, the idea that communities could unite “on grounds of a common recognition that humanity could express itself in many ways and was not subject to an absolute standard that could mark some ways for annihilation” (Bizzell & Herzberg, Reference Bizzell and Herzberg2001, p. 25).
Although speaking more broadly about sophistic rhetoric rather than the Dissoi Logoi text in particular, Mootz emphasizes the value of the sophists for thinking about our own multicultural challenges in a 1998 book review of Beyond All Reason: The Radical Assault on Truth in American Law by Daniel Farber and Suzanna Sherry. Farber and Sherry critique the relativism of radical multiculturalism in the legal academy and argue for the possibility of finding objective truth. Although the authors do not explicitly reference ancient philosophy, Mootz (Reference Mootz1998, p. 637) sees their argument as a reenactment of Plato’s attacks on the sophists, especially given their role as “professional provocateurs” in a society dealing with its own multicultural challenges. The radicals that Farber and Sherry critique (including critical race scholars, feminists, and queer theorists) are like the sophists, Mootz argues, in that they position rhetoric as a pragmatic alternative to philosophic discourse. Like Protagoras, these radicals do not embrace the idea that truth is chaotically and unpredictably relative but that it is created communally in discourse. Rather than “claiming that law is hopelessly irrational,” then, Mootz (Reference Mootz1998, p. 639) maintains “that law often requires a reasonable judgment as between two or more logically acceptable resolutions of a given issue,” a lesson taught by the sophists through dissoi logoi.
The applicability of this multicultural perspective to our own moment seems clear. But how does one acquire it? The excerpt on “the seemly and the disgraceful” draws on cultural knowledge made available to the sophists through travel. In their search for students, the sophists were known for moving from city to city. Through encounters with potential students and others, they learned not only about various cultural practices but also the worldviews behind these practices. The sophists brought this knowledge along with them to each new city, using it to challenge the worldviews of students there. Like today’s ethnographers, the sophists probably learned through observing and listening to others. Speaking methodologically, then, one strategy of invention (the practice of coming up with arguments) evidenced by the Dissoi Logoi is listening. Its arguments are grounded in cultural knowledge only available through this practice. As Poulakos (Reference Poulakos1994, p. 58) explains, “in order to understand an issue, one must be prepared to listen to at least two contrary sides; and in order to decide how to act, one must espouse one of the two sides or come up with a third.”
Rhetorical theorist Krista Ratcliffe has recuperated listening as a practice rooted in the rhetorical tradition. Listening, she explains, was central to rhetorical training for 2,000 years but now runs a “poor, poor fourth” to reading, writing, and speaking, and is seen as “something that everyone does but no one needs study” (Ratcliffe, Reference Ratcliffe2005, p. 18). By adding the term “rhetorical” to the word “listening,” Ratcliffe emphasizes two things: First, listening, like other rhetorical practices, must be learned and can be taught. Second, listening, like other rhetorical practices, helps us decide how to conduct ourselves in relations with others. She defines rhetorical listening as a “stance of openness that a person may choose to assume in relation to any person, text, or culture” (p. 1). Rhetorical listening isn’t something done just with the ears, although a person can take a rhetorical listening stance when encountering an aural text. Instead, it’s an attitude that functions primarily to foster communication across difference. Ratcliffe defines four “moves” of rhetorical listening that can be modeled, taught, and practiced. The first, which I focus on in this chapter, is “promoting an understanding of self and other” (p. 26).
To explain this move, Ratcliffe (Reference Ratcliffe2005, p. 28) inverts “understanding” to “standing under” our own and others’ discourses, or strands of thought that are at once individual, social, and cultural. When attempting to understand myself in this way, for example, I would identify the various discourses that I bring to encounters with other people or with texts. When attempting to understand others, I would listen not only for more legible discourses but also for “(un)conscious presences, absences, unknowns” (p. 29). In both cases, the idea is to let these discourses “wash over, through, and around us and then [let] them lie there to inform our politics and ethics” (p. 28). To see this move in action, consider this line from the section of the Dissoi Logoi on the seemly and disgraceful: “Egyptians do not think the same things seemly as other people do: in our country we regard it as seemly that the women should weave and work <in wool> but in theirs they think it seemly for the men to do so and for the women to do what the men do in ours” (Sprague, Reference Sprague1968, p. 158). As in other examples from the text, the listener has identified a strand of thought (here, what is seemly) in their own lives and in the lives of others. By identifying cultural assumptions about gender and work that often go unspoken, the listener is better prepared to engage ethically with others.
Similar moves to foster cross-cultural competence are receiving increasing attention in law schools, especially from faculty in clinical legal education. Most influential may be the five habits for cross-cultural lawyering developed by Susan Bryant and Jean Koh Peters (Reference Bryant, Peters, Barrett and George2005). The habits are designed to foster a nonjudgmental attitude and an ability to look “through the eyes and cultural lens” of another (Bryant et al., Reference Bryant, Milstein and Shalleck2014, p. 350). “Attentive listening” is a component of the habits, aimed at helping students focus on the client’s interpretation of a problem (Bryant, Reference Bryant2001, p. 73). For Bryant and Peters, this work is done in skills-training classes, when students are working with real clients or in hypothetical client scenarios. But is there a way to move this work earlier, into doctrinal classes that form the core of legal education? After all, as Elizabeth Mertz explains in her 2007 anthropological study of legal education, the first year is hugely influential in shaping how lawyers learn to think. In particular, the method of reading taught in the first year emphasizes “layers of textual authority as neutral sources for legal decision making” (Mertz, Reference Mertz2007, p. 5) rather than ideologically freighted selections of reality. Because casebooks dominate legal curricula, students learn this method of reading primarily in their encounters with this genre.
13.3 Listening Rhetorically to State v. Norman
In the remainder of this chapter, I explore how students might gain cultural competence through learning to listen rhetorically to how a casebook presents the case of Judy Ann Laws Norman, a woman who had suffered decades of severe abuse and forced prostitution at the hands of John Thomas (“J.T.”) Norman. After a particularly brutal two-day period, Judy had shot her husband as he napped. Indicted for first-degree murder, Judy Norman was convicted of voluntary manslaughter and sentenced to six years in prison. The trial judge had admitted evidence pertaining to self-defense but denied Norman’s request to instruct the jury on that charge, instructing instead on first-degree murder, second-degree murder, and manslaughter. Judy Norman appealed based on that denial, and the North Carolina Court of Appeals found in her favor and remanded the case for a new trial (State v. Norman, 1988). The North Carolina Supreme Court disagreed, reinstating her conviction (State v. Norman, 1989). After serving two months and three days, Judy Norman was granted clemency by the governor and released (Ruffin, Reference Ruffin1989).
At issue in the case was the definition of imminence: Only if Judy Norman reasonably believed she was in imminent danger at the time of J.T.’s death would she be entitled to an instruction on self-defense. In dissoi logoi terms, the Court of Appeals and North Carolina Supreme Court argued on both sides of this question: Did Judy Norman reasonably believe that J.T. Norman posed an imminent threat when she shot him? The Court of Appeals said yes. The North Carolina Supreme Court said no, despite recounting in their own opinion ample evidence of J.T.’s imminent threat to Judy, including testimony from expert witnesses and eyewitnesses to his abuse. The lone dissenter revisited this testimonial evidence, arguing forcefully that a reasonable juror would share Judy’s belief that danger was imminent. All three opinions are included in Joshua Dressler and Stephen P. Garvey’s popular casebook, Criminal Law: Cases and Materials (currently in its ninth edition, published in 2022), along with discussion questions and notes that frame them for the reader.Footnote 2
Casebooks are the central genre of legal education, part of the case method developed at Harvard Law School in the late nineteenth century. Christopher Columbus Langdell, who is often credited as the originator of the case method and who created the first casebook, saw law as a science comprised of principles that could be extracted from appellate opinions (Stevens, Reference Stevens1983, p. 52). In the case method, professors focus on the language of these opinions in intense dialogue with students. To prepare students for these classroom discussions, faculty predominantly have students read opinions in casebooks, which usually compile them on a particular topic such as criminal law or contracts. For his own casebooks, Langdell chose cases based on how they contributed to the development of legal principles, while later authors chose cases that would help students understand legal process (Stevens, Reference Stevens1983, p. 56). The genre has evolved to include not only cases but also headnotes, discussion and study questions, and other materials designed to teach legal doctrine and procedure. Opinions themselves are often edited to narrow the reader’s focus on the concepts central to the pedagogical purpose.
Although not necessarily obvious to their readers, opinions and casebooks demonstrate the sophistic principle that the world can be “recreated linguistically.” In other words, the materials contained in them are not the actual world of conflict and resolution but representations of it embodied in language. These representations necessarily reflect and select certain realities while deflecting others.Footnote 3 The opinions themselves are not trial transcripts; they are instead “highly edited and abstracted versions of events” (Sullivan et al., Reference Sullivan, Colby, Wegner, Bond and Shulman2007, p. 55). (And, of course, trial transcripts are themselves removed from the real events the proceedings adjudicate.) Once included in casebooks, as Mertz (Reference Mertz2007, pp. 52–53) points out, opinions are “recontextualized”; they are removed from their original contexts (bound reporters and online services) and placed into a new context “formed by other case excerpts, notes on cases, occasional excerpts from articles or books, and the casebook author’s commentary, typically bound together in a heavy book devoted to one area of law.” Listening rhetorically to casebooks can give readers a window onto how events in the world are being recreated and how they could have been otherwise. Using Ratcliffe’s first move, a reader can listen rhetorically to legal materials by “acknowledging the existence” of the various discourses as well as the “(un)conscious presences, absences, unknowns” (Ratcliffe, Reference Ratcliffe2005, p. 29).
I offer the following focal points for using Ratcliffe’s first move of rhetorical listening with Dressler and Garvey’s treatment of Norman. First, we can pay attention to the multiplicity of voices within the text. We can listen to the Justices (including the dissenter), the trial court judge, and the casebook editors. We can listen to Judy Norman, to the police who testified, and to eyewitnesses who spoke about Judy’s life and her husband’s treatment of her. We can listen to the expert witness testimony and the psychotherapeutic discourses they represent. We can ask whose voices are missing. Second, we can pay attention to how we hear these voices. Which voices are included in some texts and not included in others? At what points are Norman’s words taken literally from the transcript of the trial? From the accounts of police officers? From her family members? What is the effect of these mediations? In the casebook, how do discussion questions or headnotes direct the attention to some things rather than others? How do these questions frame what we see? What has been edited out of the opinions (as indicated by ellipses or asterisks)? In which chapter is the case placed? Under what heading? What other cases sit before and after? How do these placements prime us to understand the case in a particular way? Third, we can pay attention to how different voices select facts and explain the same facts or concepts. For example, how does each characterize J.T.’s act of sleeping? Which of Judy’s acts are emphasized and which downplayed? How do the various legal experts explain “imminent” in relation to threat? How do they explain “reasonable” belief? Finally, we can pay attention to how discourses embodied within ourselves affect what we hear. What have I heard or seen about intimate partner violence? What explanations of intimate partner violence do I believe? How have my education and experiences taught me what to believe and value?
My analysis of Dressler and Garvey’s casebook in the following pages shows that their editorial decisions thwart the ability of readers to ask many of these questions about the opinions in Norman. However, I also demonstrate that readers can ask them about the casebook itself. To establish the context within which Dressler and Garvey are writing, I first turn to how legal scholars have consistently misunderstood Norman, drawing upon the work of legal scholar Martha R. Mahoney.Footnote 4
13.3.1 Scholarly Misunderstanding and Misrepresentation of State v. Norman
Norman is widely cited in law review articles on criminal law and intimate partner violence.Footnote 5 In a detailed analysis of this scholarship, Mahoney (Reference Mahoney2019, p. 677) argues that despite Norman being “one of the best-known cases in criminal law,” scholars have almost uniformly misunderstood and misrepresented the case in regard to intimate partner violence. Through their work, these scholars have accepted and perpetuated stereotypes of intimate partner violence rather than listening to the variety of voices in the opinions, including those of Judy Norman herself and expert witnesses who testified at her trial. In particular, Mahoney (Reference Mahoney2019, p. 705) argues that scholars have misunderstood the use of expert witness testimony on the psychological effects of abuse, seeing this testimony as providing evidence that a victim’s behavior cannot be understood as objectively reasonable. This misunderstanding stems from two quarters. First is confusion about the concept of “learned helplessness,” a term of art used in psychologist Lenore Walker’s theory of “battered woman syndrome.” Scholars have often taken the term to mean that victims of abuse become completely passive and submissive, essentially “learning to be helpless” (Mahoney, Reference Mahoney2019, p. 705). Walker (Reference Walker2000, p. 116) has written that she intended the concept, borrowed from psychologist Martin Seligman, to mean that victims lose “the ability to predict that what [they] do will make a particular outcome occur.”Footnote 6 Second is that Walker’s work (simplified and misunderstood as it is) has become entrenched in legal circles, even though current social scientific theories emphasize instead the coercive control of the abuser and the strategies that victims actively employ to mitigate abuse (Hamberger et al., Reference Hamberger, Larsen and Lehrner2017). As Mahoney (Reference Mahoney2019, p. 671) argues, “battered woman syndrome” in its most simplistic form has become a generic and widely accepted shorthand for expert evidence about intimate partner violence in legal practice and scholarship, with pathologizing results. When a woman who kills her abuser is seen as suffering from an abnormal psychological condition that makes her passive and unable to accurately perceive reality, scholars immersed in this framework thus overlook evidence of her active responses to ongoing violence, the actual threat posed by the abuser, and the possibility that reasonable observers would share her sense of imminent danger.
Mahoney focuses primarily on how scholars have evaluated Judy Norman’s perception of risk from her husband at the moment she killed him. If Norman had faced an imminent threat of death or great bodily harm, the judge should have instructed the jury on self-defense. Norman’s perception of the imminence of the threat matters; her perception could be deemed to be either reasonable or unreasonable. Mahoney (Reference Mahoney2019, p. 711) found that many scholars evaluated Norman’s perception through the lens of abnormal psychology because of the battered woman syndrome framework.
Yet, as Mahoney notes, the opinions themselves contain ample evidence that Norman’s perceptions were reasonable. The majority opinion from the North Carolina Supreme Court, which reinstated her conviction, explains that under the imminence requirement, deadly force can be used only as a “last resort” (State v. Norman, 1989, p. 261). Judy Norman, they write, “had ample time and opportunity to resort to other means of preventing further abuse” (pp. 261–262). Yet their own narrative recounts the multiple ways that Judy Norman had exhausted these means: She had left numerous times in the past and had always been found and beaten by J.T. as a result; she called the police the day before the shooting, but the police advised her to file a complaint, told her that they couldn’t arrest J.T. without a warrant, and left;Footnote 7 she attempted suicide after the police left that same day, and as the paramedics attended to her, J.T. cursed her and told them to let her die; and she sought help from a mental health center and a welfare benefits office the day of the shooting, only to have J.T. threaten to kill her (pp. 256–258).
Furthermore, although the majority declared that J.T. had done nothing “immediately prior to his falling asleep” (State v. Norman, 1989, p. 262) that would show an imminent deadly threat from him, they describe him earlier in the day “threatening to kill and to maim her, slapping her, kicking her, … throwing objects at her” (p. 257), and putting out a cigarette on her torso. Judy Norman’s own testimony, included in their narrative, provides evidence of what she knew would happen when he awoke: “Asked why she killed her husband, the defendant replied: ‘Because I was scared of him and I knowed when he woke up, it was going to be the same thing, and I was scared when he took me to the truck stop that night it was going to be worse than he had ever been’” (p. 257). As related earlier in the opinion, J.T. had for years forced her into prostitution at the truck stop, beating her if she resisted. She was expecting him to traffic her after he woke up, as he always did,Footnote 8 and the increased violence of the previous two days provided evidence that “it was going to be worse.”
Mahoney pays considerable attention to the discrepancies in how the various opinions and subsequent commentaries characterize the time of day that J.T. was asleep. She argues that although the Court of Appeals accurately portrayed his sleep as a “nap” in the late afternoon, with the police arriving to find him dead at 7:30 pm, the North Carolina Supreme Court and scholars have characterized J.T. as asleep at night, with one scholar even portraying the event as a “midnight shooting” (Mahoney, Reference Mahoney2019, p. 681). Mahoney argues that these errors “reveal stereotypes about impaired perception in battered women” and highlight the stubbornness of scholarly interpretation: “How else,” she writes, “could ‘afternoon’ turn into ‘midnight’ without anyone noticing the change?” (p. 682).
The scholar who portrays Judy Norman’s killing of her husband as a “midnight shooting” is Joshua Dressler (Reference Dressler2006, p. 468 n. 27), who not only included Norman in his casebook with Garvey but has written several articles on women who have killed abusers. Dressler is outwardly sympathetic to Judy Norman; in an article in which he devotes extensive discussion to her case, he argues that he would defend her using an autonomy theory, writing that she “possesses a moral – if you will, natural – right of autonomy, a right that J.T. Norman violated on a daily basis by his physically injurious conduct, which right entitled Judy to kill him to protect her autonomy” (p. 466). Dressler embraces this theory because he claims that “there is simply no basis” to believe that J.T. Norman presented an imminent threat either in reality or in the mind of Judy Norman (pp. 463–464). Yet Justice Martin, who dissented from the North Carolina Supreme Court’s decision, provides the basis that Dressler claims does not exist. Arguing that the doctrine of self-defense requires that imminence must “be grasped from the defendant’s point of view,” Justice Martin writes that testimony not only from Judy Norman but from other witnesses “could have led a juror to conclude that defendant reasonably perceived a threat to her life as ‘imminent,’ even while her husband slept” (State v. Norman, 1989, p. 271). To proclaim that “there is no basis” for arguments on one side of this question, as Dressler does, relies on stereotypes of intimate partner violence.
13.3.2 Thwarting Rhetorical Listening through Editorial Decisions
Stereotypes of any sort are harmful enough in scholarly articles. Unfortunately, Dressler and Garvey’s (Reference Dressler and Garvey2022a) editorial choices in Criminal Law: Cases and Materials reinforce these stereotypes and hinder the reader’s ability to listen rhetorically to the opinions so that they can come to a different understanding of Judy Norman’s reasonableness. Readers can, however, listen rhetorically to the casebook itself by paying attention to what the editors cut from the opinions and how they framed them through headnotes, discussion questions, and placement.
Dressler and Garvey include excerpted versions of all three Norman opinions (the appellate opinion, as well as the majority and dissenting opinion from the North Carolina Supreme Court). Dressler and Garvey’s edits make it difficult for students to assess Judy Norman’s reasonableness for themselves. Although opinions included in casebooks must be shortened by necessity, casebook authors must be aware of how their choices affect readers. Importantly, Dressler and Garvey’s choices direct students away from the actual question at issue between the appeals court and the North Carolina Supreme Court. Consider that the unedited opinion for the appeals court, which found in Judy Norman’s favor, begins the legal analysis with a summary of self-defense law in North Carolina (State v. Norman, 1988, p. 390):
In North Carolina a defendant is entitled to an instruction on perfect self-defense as justification for homicide where, viewed in the light most favorable to the defendant, there is evidence tending to show that at the time of the killing:
(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and
(2) defendant’s belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and
(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and
(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.
Under this standard, the reasonableness of defendant’s belief in the necessity to kill decedent and non-aggression on defendant’s part are two essential elements of the defense.
Dressler and Garvey omit this material, starting instead with a sentence that appears a page later: “The question * * * arising on the facts in this case is whether the victim’s passiveness at the moment the [homicidal] act occurred precludes defendant from asserting * * * self-defense” (Dressler & Garvey, Reference Dressler and Garvey2022a, p. 561). Coming at the beginning of their analysis, the court’s summary of the relevant self-defense law prepares the reader of the opinion to understand Judy Norman’s actions from her point of view. Omitting this summary, as Dressler and Garvey do, emphasizes instead J.T. Norman’s passiveness. The edited version also replaces the word “unlawful” with “homicidal,” a choice that seems unnecessary at best, given that the reader has just read an extensive description of the facts of J.T.’s death and so knows the nature of the act. At worst, it characterizes Judy Norman’s act in the most culpable terms possible, conflicting with the court’s ultimate decision to grant Judy Norman a new trial.
In another edit to the appellate opinion, Dressler and Garvey thwart readers from questioning different representations of J.T.’s act of sleeping. Although they retain the appellate opinion’s statement that “in the late afternoon, Norman wanted to take a nap,” Dressler and Garvey eliminate the time of day (7:30 pm) that the police had arrived at the Norman residence to find J.T. dead, reducing the possibility for students to question for themselves whether J.T. was asleep for the night.Footnote 9 In the unedited version, the time of day was especially prominent, coming in the first lines of the fact statement, while the description of J.T. deciding to take a nap comes three pages later. Notably, the teacher’s manual also says that J.T. was “fast asleep” when Judy shot him (Dressler & Garvey, 2002b, p. 184), further influencing how instructors might frame the material for students. In the casebook, Dressler and Garvey also omit a crucial piece of the dissent. When explaining the evidence presented by the defense regarding whether Judy Norman believed she could escape J.T., the dissent had included the following testimony from a court-appointed forensic psychologist:
Mrs. Norman didn’t leave because she believed, fully believed that escape was totally impossible. There was no place to go. He, she had left before; he had come and gotten her. She had gone to the Department of Social Services. He had come and gotten her. The law, she believed the law could not protect her; no one could protect her, and I must admit, looking over the records, that there was nothing done that would contradict that belief.
Not only does this expert highlight what Judy had actively done to leave, he also declares that he found nothing that she had overlooked. By omitting this part of the dissent, Dressler and Garvey (Reference Dressler and Garvey2022a) prevent students from seeing that the trial court’s own appointed expert had independently validated the reasonableness of her fear.
Dressler and Garvey’s (Reference Dressler and Garvey2022a) choices in framing the case reinforce stereotypes about intimate partner violence. The case appears in Chapter 9 General Defenses to Crimes, in a section on the “reasonable belief” requirement for self-defense. Dressler and Garvey’s recontextualization of the case relative to others prepares students to see Judy Norman through the syndrome framework: The case is given its own section called “Battered Women, Battered Woman Syndrome and Beyond” that follows a section about the reasonable belief requirement “in general” and the “reasonable person.” To be sure, all three opinions discuss Judy Norman’s situation in terms of the syndrome testimony presented at trial. However, both the appellate opinion and the North Carolina Supreme Court dissent see no contradiction between this syndrome testimony and the possibility that Judy Norman acted reasonably. Placing Norman into its own section primes readers to see Judy Norman’s behavior as outside the realm of reasonable.
Dressler and Garvey’s headnote to Norman reinforces this perception. Headnotes in the chapter are inconsistent; most cases have no headnotes, a few briefly explain a legal concept the case is meant to demonstrate, one directs students to an interview with the controversial defendant,Footnote 10 and one (regarding a woman who killed her four children) contains just a short warning that it “is an emotionally difficult case to read” (Dressler & Garvey, Reference Dressler and Garvey2022a, p. 678). The headnote for Norman jumps out in comparison. It features two items. First is a four-paragraph summary of the case of Francine Hughes, whose story was the basis of the book and TV film The Burning Bed. The summary describes the abuse that Hughes endured at the hands of her husband, as well as how she killed him by dousing him with gasoline while he was asleep and lighting the bed on fire. Hughes was acquitted after she pleaded “temporary insanity” (Dressler & Garvey, Reference Dressler and Garvey2022a, p. 556). The second item in the headnote is a two-sentence summary of Lenore Walker’s book The Battered Woman, which names “battered woman syndrome” but does not define, contextualize, or historicize it (p. 556). This introduction simultaneously sensationalizes both cases and prepares the law student reader to understand Norman as being primarily about abnormal psychology. In the notes following the opinions, the only explanation of battered woman syndrome is taken from a 2004 judicial opinion (State v. Smullen, 2004) that misrepresents learned helplessness as “when, after repeated abuse, women come to believe that they cannot control the situation and thus become passive and submissive” (as cited in Dressler and Garvey Reference Dressler and Garvey2022a, p. 571). The opinion also claims that battered woman syndrome explains “why the defendant, having been previously subjected to abuse, simply did not leave the home or take some other action against her abuser” (as cited in Dressler and Garvey Reference Dressler and Garvey2022a, p. 571), an assertion at odds with research available at the time explaining both substantial obstacles to leaving as well as how often victims do leave only to be pursued and punished, often killed.Footnote 11 This description certainly does not accord with the facts of Norman; even the North Carolina Supreme Court majority opinion details how many actions Judy Norman took to keep herself safe, including leaving on multiple occasions only to be found, brought home, and beaten, and later attempting what legal scholar Marina Angel (Reference Angel2008, p. 70) calls the “ultimate exit, suicide.”
Dressler and Garvey’s discussion notes regarding imminence further shape the student’s perception of the case, leaving no room for considering the possibility that Judy Norman did face an imminent threat, even though arguments on both sides of this question frame all of the opinions. At the North Carolina Supreme Court level, the question of imminence is the primary question, with the majority arguing that because J.T. was asleep when he was shot, “there was no action underway by decedent from which the jury could have found that the defendant had reasonable grounds to believe … that a felonious assault was imminent” (State v. Norman, 1989, p. 262). In response, Justice Martin argues in his dissent that “‘imminent’ is a term the meaning of which must be grasped from the defendant’s point of view,” assuming that this belief “was reasonable in the mind of a person of ordinary firmness” (p. 271). He continues, writing that Judy Norman’s “intense fear” of grievous bodily harm or death, supported not just by her own testimony but by that of witnesses, “could have led a juror to conclude that defendant reasonably perceived a threat to her life as ‘imminent,’ even while her husband slept” (p. 271). Although the appeals court does not use the term “imminent,” they write that “a jury, in our view, could find that decedent’s sleep was but a momentary hiatus in a continuous reign of terror by the decedent [and] that defendant merely took advantage of her first opportunity to protect herself” (State v. Norman, 1988, p. 392). Despite the centrality of the issue of imminent threat to all of the opinions, Dressler and Garvey treat the question as settled. Rather than asking students to think through whether Judy Norman faced an imminent threat, they ask whether the imminence requirement should be abandoned. This omission reinforces the idea that Judy Norman’s perception can be understood only through the lens of abnormal psychology.
The teacher’s manual for the casebook reinforces this idea. Providing Dressler as a model for how to teach the case, the manual describes him starting his own class discussions with the question of whether the trial jury should have been instructed on self-defense without testimony on battered woman syndrome. The answer he provides for other instructors is short and clear: “Not under traditional standards, in which ‘imminent’ means (as defined here) ‘immediate danger, such as must be instantly met’” (Dressler & Garvey, Reference Dressler and Garvey2022b, p. 183). In his own classes, he then asks students to consider whether Judy Norman would be entitled to this defense under the Model Penal Code (§3.04), which allows for the use of force when the defendant “believes that such force is immediately necessary.” For Dressler, these discussions should make it “clear that Judy Norman is not entitled to a self-defense instruction” without testimony about battered woman syndrome (Dressler & Garvey, Reference Dressler and Garvey2022b, pp. 182–183). Dressler then turns to whether this testimony would help Judy Norman’s defense, directing instructors to a summary in the casebook itself of how courts currently treat expert testimony about battering. Although the trend in this testimony, according to Mahoney (Reference Mahoney2019, p. 572), is away from the pathologizing syndrome framework, the casebook inaccurately refers to this testimony as “BWS testimony” and “syndrome evidence.” The casebook explains that although courts routinely admit this testimony in “confrontational homicides,” they are divided about whether to admit them in “nonconfrontational” ones such as Norman. Labeling Norman a case of nonconfrontational homicide further reinforces the idea that Judy Norman’s assessment of the threat from J.T. was unreasonable.
My critique of Dressler and Garvey’s casebook has focused on the effects of their treatment of this case on readers’ understanding of Judy Norman’s reasonableness and, by extension, of intimate partner violence. After all, Judy Norman’s reasonableness is at the heart of the question of imminence about which contrasting arguments are made in the opinions. Yet Dressler and Garvey treat the question of imminence as settled, perhaps because the North Carolina Supreme Court settled it legally in this case. Understanding the law in this way is integral to the case method. Once decided, a case becomes part of the body of law from which principles can be deduced. Given the casebook’s focus on criminal law, the question of imminence in self-defense is a principle that Dressler and Garvey probably wanted to highlight. Seeing the question of imminence as legally settled by Norman, Dressler and Garvey might have imagined instructors using the North Carolina Supreme Court opinion to apply the principle of imminence to various hypothetical situations to determine, for example, whether imminence was definitely present, arguably present, or not present. Unfortunately, such a conversation would further reify the North Carolina Supreme Court’s definition of imminence rather than helping readers see this definition as the result of contested viewpoints, of dissoi logoi.
13.4 Implications for Intimate Partner Violence and Beyond
Stereotypes of intimate partner violence likely informed the North Carolina Supreme Court’s decision in State v. Norman. Although their opinion recounts facts that strongly support a conclusion that Judy Norman’s behavior was reasonable, the majority reached the opposite conclusion by relying on stereotypes of victims of intimate partner violence as passive and damaged. Through their editorial choices, Dressler and Garvey reinforce these stereotypes. These stereotypes are potentially hugely influential on future practice, especially considering that the vast majority of law students are exposed to legal treatment of intimate partner violence only through this casebook. Most of the students who encounter Norman in their criminal law classes will never take a seminar devoted to intimate partner violence or have other opportunities to think about how this widespread social problem might affect their clients. And because intimate partner violence affects a victim’s family life, employment, and financial affairs, lawyers in all areas of practice are likely to work with victims. At the very least, law students should not be misguided by outdated approaches that they are led to believe are current.
But the problem presented by casebooks goes beyond intimate partner violence. Although I have focused on the treatment of a single case in a single casebook, the casebook genre by definition recontextualizes its materials. All readers, students included, need to be aware of how this recontextualizing can frame their understanding. Readers can use rhetorical listening, especially its first move, to help recognize this framing. “Standing under” the discourses of a casebook means listening for both “(un)conscious presences, absences, unknowns” and legible discourses (Ratcliffe, Reference Ratcliffe2005, p. 29). Becoming aware of asterisks (sometimes used in legal writing, as in Dressler and Garvey’s casebook) or ellipses can draw attention to absences, even if the reader does not compare the edited version in the casebook to the original, as I have done here.
To hear legible discourses in a casebook, readers can listen for the categories that a case has been placed into. At the broadest level, we hear the area of law covered by the casebook. For example, reading Norman in a criminal law casebook forces us to understand it in a different context than if we had read it in one on intimate partner violence. The case is framed by different questions and surrounded by different cases and commentary. As readers, we can also hear the placement of the case within the casebook. Listening to how Dressler and Garvey place Norman in their casebook, for example, makes psychotherapeutic discourse even more prominent than it is in the opinions themselves. Readers might not initially know what to make of this discourse, but Ratcliffe advises also listening to the discourses embodied within ourselves, with the goal of understanding how these discourses influence how we perceive the discourses of others. What are my assumptions about intimate partner violence, and where did they come from? What psychotherapeutic explanations for intimate partner violence have I heard before, and what do I think of them? Letting these discourses “wash over, through, and around us and then letting them lie there to inform our politics and ethics” (Ratcliffe, Reference Ratcliffe2005, p. 28), we can come to see how Judy Norman’s actions have been further pathologized, as well as our own participation in (or resistance to) this pathologizing.
Readers of any casebook can listen for dissoi logoi. If the casebook presents only one opinion for a case, we can listen for how the opinion, as well as the headnotes and discussion notes, presents the central question and the answers to it. If the casebook contains dissents or lower court opinions that were reversed, we can ask ourselves the following: About what central question do the opinions disagree, and what arguments do they offer? Although the concept of dissoi logoi assumes a binary argumentative framework, we can also imagine other possible positions on the question by listening for “(un)conscious presences, absences, unknowns” (Ratcliffe, Reference Ratcliffe2005, p. 29). For example, in Norman the opinions argue on both sides of the question of whether Judy Norman reasonably believed that J.T. Norman posed an imminent threat when she shot him. A third position on this question is that imminence should not be a universal requirement for self-defense. This position has been taken up by a number of feminist legal theorists who argue that the law of self-defense has been universalized from male experience, presuming the kinds of situations in which men typically use deadly force rather than those in which women do.Footnote 12
13.5 Conclusion
The predominant lesson of the Dissoi Logoi – that rhetors should learn to argue on both sides of a question – is alive and well in contemporary legal education. This practice helps law students in an adversarial system develop the skills necessary to advocate successfully, such as identifying the strengths and weaknesses on each side and anticipating an opponent’s argument. But, as this chapter argues, the Dissoi Logoi offers other lessons, most importantly an awareness of the subjectivity of our own perspectives. If law students can learn that any issue can be seen from (at least) two sides, they can begin to see that there is no neutral position from which to observe and arrive at the truth. This recognition does not mean that truth does not exist. Instead, law students can learn that truth is created communally through the clash of discourse. They can recognize that rhetoric isn’t just a tool to be deployed but the means by which our world is created.
In this chapter, I have offered rhetorical listening as a way of hearing differing perspectives. As an attitude that one can take toward any discourse, rhetorical listening provides a foundation for challenging stereotypes and communicating across cultural divides. I have focused here on casebooks because they are the dominant genre in the first-year curriculum in American law schools. But law students need to learn to listen rhetorically to all of the materials they encounter throughout the curriculum to prevent jumping to conclusions, whether based on stereotypes, insufficient information, or the desire to solve problems quickly. Rhetorical listening, like other rhetorical skills, can be learned and taught. Law students need to learn not just to argue on both sides of a question but to listen for what they do not expect to hear.
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