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Law & Humanities Blog

Rhetoric and Legal Forms

Posted: 25 Jul 2011 03:18 PM PDT

Kirsten K. Davis, Stetson University College of Law, has published Legal Forms As Rhetorical Transaction: Competency in the Context of Information and Efficiency in volume 79 of the University of Missouri (Kansas City) Law Review (Spring 2011). Here is the abstract.


The increased production of legal forms by commercial publishers, the electronic availability of lawyer-produced documents through subscription-based and free Internet sites, and the increasing number of institutionally approved forms is creating a paradoxical and challenging environment for principled form use by lawyers. On one hand, courts, legislatures, and administrative agencies, for example, encourage, and even require, the use of forms in the practice of law. Commercial publishers tout the benefits of form use to sell legal formbooks and to entice lawyers to access subscription databases filled with contracts, pleadings, briefs, and motions. On the other hand, the same entities that encourage form use in some circumstances sternly admonish lawyers for using or relying on forms in others.



As the time constraints on lawyers become greater, legal practice becomes more global and multi-jurisdictional, and information increases exponentially and becomes more difficult to manage, lawyers, particularly lawyers new to practice or new to a particular practice area need to develop a principled approach to legal form use to ensure forms are used competently.



This article explores legal forms and proposes a rhetorical approach to understanding and using forms. This approach is unique because it uses rhetorical theory to define and categorize legal forms, and it offers specific suggestions for competent legal form use based on rhetorical theory.
Download the article from SSRN at the link.

Oscar Wilde and the Narrative of Sexual Identity

Posted: 25 Jul 2011 12:07 PM PDT

Laura I.
Appleman, Willamette University College of Law, has published Oscar Wilde's Long Tail: Framing Sexual Identity in the Law at 70 Maryland Law Review 985 (2011). Here is the abstract.


This article argues that narrative has been the hidden link in the intersection between law and sexual identity, shaping and structuring the relationship between the two. The power of the hidden narrative continues to influence legal decisions today, most recently including the national debate on same-sex marriage. I contend that the basis for this complicated relationship began with a few critical 19th-century events, in particular the widely publicized trials of Oscar Wilde for the crime of sodomy. I aim to restore the camouflaged work of narrative to its rightful place in our understanding of sexual identity in the law. In so doing, I hope to not only dissect and expose the complex interrelationships between law, narrative, and sexuality, but also clarify the shifting dynamics of legal sexual identity. This Article asserts that only through recognizing the role of narrative in structuring our legal definition of sexual identity will we ever be able to understand how and why courts are deciding gay rights cases in the way they do.
Download the article from SSRN at the link.

The Development of Culture and Legal Institutions In Seventeenth Century England

Posted: 25 Jul 2011 07:09 AM PDT

Peter Murrell, University of Maryland Department of Economics, and Martin Schmidt, University of Maryland, College Park, have published The Coevolution of Culture and Institutions in Seventeenth Century England. Here is the abstract.


We examine how cultural and institutional development interact with each other over time, constructing new annual measures of cultural dynamics and institutional development for a paradigmatic episode of change, seventeenth century England. The institutional measures reflect citations of cases and statutes appearing in later legal decisions, thereby capturing the growth of formal legal institutions weighted by usage. The cultural measures reflect frequency of word use in publications, interpreted using a model of social learning that elucidates the relationship between cultural diffusion and word frequency.


 We find that institutional development takes place over the whole period that we study (1559-1714). Especially fecund years are from the mid-1580's to the mid-1620's and from 1660-1680. There is no indication that the Glorious Revolution of 1688 spurred institutional development. The diffusion of modern ('whig') political culture is much more concentrated in time than is institutional development. Until 1640, the diffusion of whig culture is limited, but then dramatic change occurs, with over half of the cultural diffusion that we focus upon completed by 1660. The process of cultural change was largely completed by the time of the major constitutional legislation of the late 17th century. Vector-error-correction estimates of the relationships in the annual data suggest that culture and case-law coevolve but that statute law is a product of the other two.
Download the paper from SSRN at the link.
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