2. Constructive Characterization Models
To guide advocates in pinpointing the impetus and appropriate response to a dispute, I have developed four models of characterization technique. The models are not intended to compose a complete taxonomy of rhetorical schemes. Nor are they designed to provide discrete, mutually exclusive categories for analyzing disputes. In fact, with a mild dose of ingenuity and effort, one could manipulate a given characterization into each one of the models. The models instead are heuristics—that is, tentative forms for thinking about a set of facts and for laying out strategic alternatives that the advocate can try on for size as she is designing her rhetorical plan.38
I developed these models from my experience teaching constructive characterization technique.39 Out of a lawyerlike respect for categories and affection for distilled explanations of complex concepts, my students responded well to the graphic illustrations of wordplay. Refining the outlines developed for class, I have engrafted some theoretical analysis of others— including, most notably, work on legal semiotics.
MODEL 1: THE EXPANDING OR CONTRACTING UNIVERSE
To introduce each model, I trace permutations of my housekeeping dispute with my husband. The model illustrated in Figure 1, for example, depicts my husband’s approach in that opening dialog. In the dialog, my husband confronted my own characterization by expanding the universe of facts relevant to our problem. Under his scheme, we were not confined to the smaller circle of who did what around the house, but instead were struggling to reach equilibrium on a larger circle: our marriage relationship.
Nothing compels the advocate to follow my husband’s example and expand the range of facts and concepts invoked in a dispute. Indeed, an advocate may conclude that contracting the relevant universe is rhetorically more effective.40 For example, she may not challenge her opponent’s definition of the relevant (larger) sphere, but may instead argue that a smaller sphere is more pertinent because of some particularity in the parties’ dispute. Whether the advocate chooses to expand or contract the universe, the argumentation model remains essentially the same.41 Moreover, the advocate will find the model useful whether or not her opponent speaks first; when an advocate uses the model before knowing what the opponent will say, the model simply serves as a basis for exploring whether a narrow or broad formulation best serves the advocate’s identified goals.
MODEL 2: RIVAL COMPONENTS
Figure 2 illustrates a different approach to our household dilemma. Instead of arguing about the relevant universe of facts and concepts constituting our controversy, my husband and I disagree only about the most significant component of the universe. Specifically, we both accept a definition of the impetus as a problem of who does what on the household duties checklist. But we hold competing views about how much weight we should give different elements on the checklist.
He might argue, for example, that my characterization of our problem is blind to many jobs vital to our household—such as painting, fuse-replacing, and car maintenance—for which he is solely responsible. I, on the other hand, wish to convince him that he needs to contribute more to the more central tasks of cooking, cleaning, and laundry. Although I recognize that painting and car maintenance are parts of the entirety of our household duties, I wish to discount these tasks so as to establish that he needs to do more of the jobs I emphasize. I accomplish this by suggesting that my components are more weighty, more central, more onerous, or simply more compelling than his.
This characterization technique resembles the wordplay that traditional rhetoricians have called “synecdoche,” where the speaker uses a part to stand for the whole.42 Take the following synecdoche from daily speech: “She’s just a pretty face.”43 Like my marital example, this statement does not literally assert that the part is the whole. Nevertheless, by emphasizing one part as a defining characteristic, synecdoche potentially obscures the complexity of the whole.44 In other words, focus on the pretty face discounts the importance of the brain behind the face as well as other personal qualities.
Like synecdoche, the rival components model also may conceal large chunks of a dispute.45 Although possibly deceptive, this potential to conceal gives the model significant persuasive value. Indeed, an advocate uses the technique in order to overshadow unfavorable attributes of the dispute and drive home those attributes likely to dispose a decision-maker favorably toward the advocate’s position.46
In the universe of law, the rival components model shows up repeatedly when an advocate sorts a case into a particular legal category.47 For example, if a dispute can be reasonably characterized as a contract or a property case, the skillful advocate will ascertain which legal category is most advantageous and highlight the portions of the controversy that trigger that category of rules. Even though the controversy has both property and contract components when considered as a whole, the advocate will argue that one set of components is so compelling as to provide the governing legal rules.48
Sometimes this process is not only an argumentative strategy, but is explicitly integrated on the face of legal doctrine. A prominent illustration comes from a choice-of-law technique that itself is sometimes called characterization. This technique requires a court confronting a choice-of-law question to sort the case into a legal category such as “tort” or “contract” in order to identify the appropriate set of choice-of-law rules.49
Choice-of-law doctrine is not alone in its unequivocal mandate to sort the case according to dominant characteristics.50 For my purposes, however, it is not this clarity that is most instructive for an advocate. Rather, it is the law’s invitation to resolve disputes by identifying a dominant legal category reflected in the dispute instead of by reshaping legal categories to fit more closely with the dispute.51 In this way, the law legitimizes the process of choosing among competing components of the dispute and allowing the chosen component to color the entire dispute—precisely the process embodied in the rival components model. The prevalence of the model in advocacy and in the structure of the law presumably reflects the human tendency to cope with complexity through the process of classification.52 Significant rhetorical benefit flows from the model’s appeal to this tendency.
MODEL 3: THE COMMON DENOMINATOR
In Figure 3, my husband and I propound overlapping characterizations. For me, the dispute concerns who does what in the home; for him, the dispute concerns how we each spend our time. These characterizations intersect with at least one common denominator: personal toil of each partner is necessary to a smooth-running relationship. We disagree, however, on which types of personal toil should count. Although we both have careers outside the home, my husband may for many reasons conclude that his hard work to further his career is so necessary to the financial and psychological well-being of our partnership that he is excused from performing a full half of the household duties.53 By contrast, I maintain that introducing notions of toil outside the home obscures our problem. In other words, I want to banish professional toil from the equation.54
By identifying a common denominator, an advocate may increase the chances of settling a dispute with the other side.55 A frequent strategy in mediation (and sometimes negotiation) is to identify overlapping interests, complementary needs, and points of agreement between parties to a dispute.56 While this process may be easier after the other party has spoken, a party can start the process of understanding the other’s perspective and identifying overlap even before the other party has articulated her position.57
But the common denominator model in no way guarantees an easier dispute settlement. Indeed, the model can amount to no more than co-opting a portion of an opponent’s argument and throwing it back in her face. Such a technique bears kinship to what postmodern theorists describe as “flipping,” a technique which a lawyer can use in argumentation by appropriating “the central idea of [her] opponent’s argument . . . and [claiming] that it leads to just the opposite result from the one she proposes.”58 The two techniques differ, however, in that flipping generally operates on the core of the opponent’s argument, whereas an advocate following the common denominator model need share only a sliver of her opponent’s approach.
MODEL 4: COMPETING WORLDVIEWS
The final characterization scheme represents dramatic constructive characterization. As illustrated in Figure 4, my husband could wholly reject my definition of the impetus, declaring that housework is not man’s work and that his failure to do “his share” of household duties is not a problem at all. Duncan Kennedy calls this verbal operation “counter-theory” and defines it as “a response which simply rejects the normative idea” in the originally asserted argument.59 Using the model, the advocate changes the perspective so radically that she embosses a new, different worldview on the controversy. Because this competing worldviews model involves direct confrontation rather than subtle shifting from one point of view to another,60 it bears analytical kinship with the destructive characterization techniques discussed earlier.61 Nevertheless, the model can be effective in inspiring constructive thinking—especially in instances where the model emboldens an advocate to create a unique perspective on a situation before the other side has spoken.
The four models illustrate forms for advocates to trace in exploring alternatives to confronting a dispute. The advocate must search the corners of her opponent’s universe and decide to reject her opponent’s definition of that universe or to reconfigure its elements. She must not lose track of her ability to control the path of dispute resolution.
To assist in this task, the models provide the advocate with templates to spark inspiration and to reinforce self-determination. Using the models, the advocate knows that, at the least, she can expand or contract an opponent’s characterization of a controversy, emphasize a new component of her opponent’s universe, map a new universe that overlaps with her opponent’s, or break a path entirely her own.
C. Applying the Characterization Models: An Analysis of Audience
I discuss below a number of principles to guide the advocate in applying and choosing among the models outlined above. I structure my comments around the concept of understanding one’s audience. I do not mean to cast a focus on audience as the exclusive constituent of an advocate’s rhetorical effort,62 but the concept of audience certainly is central to effective characterization technique. Equally important for my project: the process of understanding audience—with its emphasis on the human element of rhetorical exchange—also drives home how characterization technique can help law students appreciate the connection between legal craft and the interpersonal skills developed in contexts outside one’s professional life in the law.
1. Audience Impact on Characterization
Jerry Frug speaks for many students of rhetoric when he declares that “the most important object of inquiry in a study of persuasion is not the author but the audience to whom the argument is addressed. After all, those who make arguments, whether manipulatively or with conviction, do so in order to influence others.”63 Frug maintains that an advocate’s success in persuading depends on whether the audience identifies with the view of the world the advocate propounds.64
The notion of audience owes direct lineage to classical rhetoric and provides a focal point for contemporary rhetoricians and other scholars. Aristotle admonished the rhetor to choose speech with an eye toward “what is esteemed among the particular audience.”65 Cicero, too, placed audience in a prominent position along with “context” and “speaker.”66 Some modern analysts distinguish defining audience for the purpose of persuasion (the goal of the classical rhetoricians) from the purpose of identifying with the audience (the goal of the “new rhetoricians”).67 Because my project is focused on improving advocacy as well as enhancing the personal connection of students with the law, both the persuasion and identification components of audience are important here.68
Regardless of distinctions within the concept of audience, the concept has retained broad-based importance, even for language scholars outside the formal discipline of rhetoric. For example, Deborah Tannen refers to “audience as co-author,” arguing that a speaker’s “involvement” of her listener makes communication meaningful and potentially persuasive.69 Only through engaging her listeners can the speaker ensure that they understand and embrace her discourse.70 In the same vein, another contemporary linguist, Frederick Erickson, argues that “talking with another person . . . is like climbing a tree that climbs back.”71
Identifying audience as a key concept, of course, actually says little about how an advocate can skillfully persuade or identify with her audience. My own instincts suggest starting a rhetorical strategy by thinking in widely accepted terms. By starting with widely accepted notions, the advocate simply increases her odds of choosing an approach persuasive to her audience. And if the audience is not strongly nonconformist or iconoclastic, the advocate also profits from the force of convention. Look, for example, at my husband in the opening story: he surely benefited from the common wisdom of his starting premise that building a functional marriage is an important and difficult task.
But finding a broadly attractive principle is not necessarily the most successful strategy.72 As Anne Lamott advises, it is even more important that the advocate draw her principle from the right ballpark: “If your wife locks you out of the house, you don’t have a problem with your door.”73 Part of identifying the appropriate ballpark is understanding context. In Lamott’s example, the context is marital discord, not disfunction of an inanimate object. Audience is also crucial to identifying the appropriate ballpark; the advocate must choose a characterization that actually resonates with her audience, even if the characterization falls far short of universal appeal.
My husband was skillful enough to find a widely appealing principle that also struck at the heart of his particular audience; indeed, his characterization sidled up to the sensitive young woman he was dealing with—a young woman conversant in the morality of care,74 who had only recently embarked on a relatively unknown enterprise (marriage) which she deeply wanted to work.
Another noteworthy aspect of my husband’s characterization is his use of metaphor. In recent years, a number of scholars have documented metaphor’s significance in structuring human thought and culture—including law and morality.75 As an argumentation device, metaphor derives its strength from its ability to build on beliefs and emotions rooted in the audience. An apparently gentle metaphorical reference can release a surge of energy from concepts waiting to be triggered.76 Indeed, my husband’s phrase “this is a marriage, not a checklist” connected with a complex of negative associations within my mind: I was reminded of two very specific types of persons I had encountered in my life—cold and bureaucratic people who use checklists as a calculating strategy, and weak people who make checklists as a futile attempt to control their lives and others’. His metaphor worked well for him in persuading me that I was acting like someone other than the perceptive, sensitive, and intelligent person I wanted to be.
Although subject to significant abuse,77 metaphoric technique like my husband’s has significant advocacy potential for lawyers. In the creative process of pursuing their craft—naming parties, framing issues, identifying facts—lawyers encounter many opportunities to color their work with figurative references.78 Like other aspects of a lawyer’s rhetorical effort, the references must be tailored to the audience to enjoy their greatest force.79
Having lauded my husband’s skill in engaging his audience, I note a number of potential pitfalls with his approach. First, an argument chosen so clearly to appeal to a particular audience may make an advocate appear sycophantic, pandering too closely to the audience’s concept of itself. The advocate then can look insincere and manipulating. An advocate may overcome this problem by including in her rhetorical effort a glimpse of her own character or that of her client. Sharing this glimpse of character, the advocate not only will be more believable, but will more likely transform the communication into a unifying exchange with her opponent.80 Framed appropriately, an argument reflecting a slice of the advocate’s (or client’s) “self” can send the message: “This is my way; where is yours?”81
A second problem for the advocate trying to play to her audience is the significant possibility that she may oversimplify her conception of the audience. For example, my husband’s audience (me) may indeed be a sensitive young woman with a well-developed morality of care, but she may possess other qualities—such as fear of adulthood or a fiercely individualistic spirit— that convulse at his exalting the importance of a “mature” marital union. The advocate should be mindful that human beings are complicated, full of ambiguities and contradictions.
Obviously, knowing the audience’s complexities is the best way for the advocate to avoid oversimplification. Injecting some of her own or her client’s “self” may also prevent the advocate’s rhetorical effort from appearing to be based on a caricature of the audience. An unlikely source of guidance, earlier identified by Jerry Frug,82 appears in the mannerism period in art history, which reflected the notion that “[a] character is . . . more convincing the less complete is the writer’s picture of him and the more complex and the richer in surprises is his behavior.”83 Taking heed of this observation, the advocate should be mindful of the power of understatement, blurry lines, and irrational or conflicting joinder of qualities in a chosen characterization.84 By including an unlikely element in the characterization or mixing two apparently competing characterizations, the advocate creates a result that not only is interesting enough to capture the audience’s attention, but may also persuade them that the depiction comes close to the complexities of reality.
39 I designed the models to depict constructive characterization strategies. Nevertheless, for the reasons discussed above constructive characterization will always include at least an implicit element of destructive characterization.
40 A particularly skillful contraction of the relevant universe appears in the oral arguments before the U.S. Supreme Court in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). Reminding the justices that the dispute concerned real injury to a real person, the attorney for respondent Alan Bakke attempted to focus the Court’s attention away from the “social issue” animating the dispute and toward the individual white man who had suffered an injury because of his race. See May It Please the Court, eds. Peter Irons & Stephanie Guitton, 311–12 (New York, 1993). By contrast, counsel for the petitioner, University of California, maintained that the school was trying to fulfill a social purpose. Id. at 308. For another legal example, see Keith Burgess-Jackson, An Epistemic Approach to Legal Relevance, 18 St. Mary’s L.J. 463, 473–74 & nn.43–45 (1986) (describing case where prosecution contended “smuggling, nothing more” was involved and defense attorneys said moral and religious issues as well as safe haven purpose of immigration laws were important to case).
41 This model would include the verbal operation Duncan Kennedy refers to as “refocussing on opponent’s conduct,” which he describes as “particularizing within the general context of your opponent’s argument.” Kennedy, supra note 2, at 178. Kennedy offers the following example of refocusing from general context to a particular disqualifying detail: “plaintiff has a right to security from (this kind of) injury vs. plaintiff has forfeited his rights by his conduct in this case.” Id. Kennedy might also associate this model with the verbal operation described within his lexicon as “level shifting.” He illustrates level shifting as follows: “I say your rule lacks administrability. You respond that your rule tailors liability to fault.” Id. at 180. The model depicted in Figure 1 is also analyzed in Jennifer Jaff’s work on frame-shifting. Jaff describes the process as follows: [D]ecision makers shift their frame of reference from broad to narrow, narrow to broad, to construct rationales that justify differing results . . . . In a contracts, torts, or property case, one side might focus narrowly on the rights of the parties actually involved in the controversy, whereas the other side might adopt a broader perspective that generates arguments about the operations of the entire market. Jaff, supra note 1, at 253–54; see also Pierre Schlag & David Skover, Tactics of Legal Reasoning 39–43 (Durham, 1986) (discussing movement among higher and lower levels of abstraction as an important legal argumentation device).
42 See Corbett, supra note 20, at 480–81.
43 George Lakoff & Mark Johnson, Metaphors We Live By 37 (Chicago, 1980). Other examples include “The Giants need a stronger arm in right field,” Id. at 38, and “Give us this day our daily bread,” Corbett, supra note 20, at 480.
44 Lakoff & Johnson, supra note 43, at 12–13 (“[M]etaphorical concepts . . . provide us with a partial understanding of what communication, argument, and time are and . . . in doing this, they hide other aspects of these concepts.”).
45 For this reason, the technique is related to the argumentation approach, identified by Schlag and Skover, which focuses on the inappropriateness of an opponent’s frame of reference. See Schlag & Skover, supra note 41, at 50–51; cf. Thomas S. Kuhn, The Structure of Scientific Revolutions, 2d ed., 24 (Chicago, 1970) (stating that paradigms can “force nature into . . . [a] preformed and relatively inflexible box,” blinding scientists to phenomena that do not fit into the box).
46 The skillful opponent can, of course, try to neutralize the effects of the technique using a countermove: emphasizing the portion of the dispute that the initial characterization overlooks. The strategy of Alan Bakke’s lawyer—focusing the Supreme Court away from the social issues implicated in the case and toward the individual injury suffered by his client— illustrates a counter-synecdoche maneuver. See supra note 40. The decision-maker may also be engaging in this shifting emphasis. Catharine Pierce Wells describes how a judge may use the rival components model in decision-making: The decisionmaker will investigate the case by paying particular attention to the factual issues that seem relevant under the normative theory (s)he has selected. (S)he will thus treat certain details of the situation as central to the normative problem and marginalize or disregard the remainder. For example, suppose the situation involves a deceptive representation made to a member of the green team by a member of the blue team. The decisionmaker could focus on the case either as an instance of a deception or as an instance of blue/green interaction. If the chosen normative theory permits clear conclusions about the utility of deceptive practices but does not speak clearly about the effects of favoring one team over the other, a structured approach requires treating the case as an instance of deceptive conduct rather than as a question of blue/green interaction. Situated Decisionmaking, 63 S. Cal. L. Rev. 1727, 1732 (1990).
47 It appears to be this technique that Jeremy Paul is alluding to when he uses the term “category characterization” in his inventory of legal reasoning techniques. Paul, supra note 10, at 930. For a thorough study of the classification of legal doctrine, see Jay M. Feinman, The Jurisprudence of Classification, 41 Stan. L. Rev. 661 (1989); see also James Boyle, Anatomy of a Torts Class, 34 Am. U. L. Rev. 1003, 1054 (1985) (suggesting that, in manipulating precedent, lawyers make factual and legal recategorization of circumstances in case at hand “so as to make other cases more or less relevant”).
48 See, e.g., Edward Chase & E. Hunter Taylor, Jr., Landlord and Tenant: A Study in Property and Contract, 30 Vill. L. Rev. 571, 617–26 (1985). Other examples of this “sorting” phenomenon in legal doctrine appear not only broadranging, but limitless. See, e.g., Heck v. Humphrey, 114 S. Ct. 2364, 2373 (1994) (holding that the exhaustion requirement for habeas corpus petitions is not mandated in § 1983 actions); Commissioner v. Sunnen, 333 U.S. 591, 607 (1948) (holding that collateral estoppel applies for questions of law but not questions of fact); Katz v. Carte Blanche Corp., 496 F.2d 747, 752 (3d Cir. 1974) (holding that mandamus is appropriate if lower court acted outside of its jurisdiction, but is not appropriate if lower court acted within its jurisdiction); Educ. Testing Servs. v. Katzman, 670 F. Supp. 1237, 1243 (D.N.J. 1987) (concluding that, under the 1976 Copyright Act, judge decides equitable matters such as statutory remedies and jury decides all “legal” matters); Foley v. Interactive Data Corp., 765 P.2d 373, 401–02 (Cal. 1988) (holding that bad faith employee discharge case is a “contract” and not “tort” case, so that only contract damages are available); 3A Arthur L. Corbin, Corbin on Contracts §§ 719–20 (St. Paul, 1952) (stating that time may be “of the essence” in sale of goods contracts, and that time is “commonly not of the essence” in building contracts); Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 Yale L.J. 997, 1014 (1985) (arguing that when courts maintain private label on contract law they can excise regulated and compulsory contract from the corpus of labor law doctrine altogether); Phyllis Maza Parker, Recent Decision, Second Circuit Extends Double Jeopardy Clause to Prohibit Prosecution of Criminal Conduct Used Previously to Enhance Sentence, 67 Temp. L. Rev. 1387, 1415 (1994) (discussing distinction between judicial action that triggers double jeopardy prohibition because multiple punishment results and judicial action that merely results in punishment enhancement).
49 This process is most often associated with the methodology established in the Restatement (First) of Conflict of Laws. See Lea Brilmayer, Conflict of Laws, 4th ed., 124–25 (Boston, 1995). Modern choice-of-law approaches, however, do not wholly eliminate the characterization technique. See id. at 330–31. Choice-of-law characterization directs the legal analyst to evaluate what portion of a problem most prominently colors the whole. The advocate must maintain such strict focus on that choice that the initial characterization itself is often dispositive of the case. For analysis of characterization in choice of law as a “metonymic escape,” see Judith A. Harris, Recognizing Legal Tropes: Metonymy as Manipulative Mode, 34 Am. U. L. Rev. 1215, 1222–27 (1985).
50 Another prominent context where analysis of component parts is actually embedded in the doctrine itself is the series of Supreme Court cases struggling to pinpoint a test for determining whether a case has sufficient federal components to “arise under” federal law for the purpose of 28 U.S.C. § 1331. E.g., Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 189 (1921) (“[W]here . . . right to relief depends upon the construction or application of the Constitution or laws of the United States and . . . such federal claim is not merely colorable, and rests upon a reasonable foundation,” the claim arises under federal law.); Moore v. Chesapeake & O. Ry., 291 U.S. 205, 216–17 (1934) (no jurisdiction where federal law “touched the duty of the [defendant] at a single point and . . . the right of the plaintiff to recover was left to be determined by the law of the State”); American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916) (“A suit arises under the law that creates the cause of action.”). The cases are remarkable in their self-conscious recognition that a claim can have both state and federal character and their persistent search for a way of determining which of the two predominates.
51 The distinction I make here is similar to the distinction between structured and contextual decision-making developed by Catharine Pierce Wells: “Structured decisionmaking treats each individual normative problem as a token that is to be understood in terms of its type.” Wells, supra note 46, at 1731. Contextual decision-making, by contrast, “treats a case as an individual set of circumstances that requires resolution upon its own terms.” A contextual decision-maker does not fit “the facts to preconceived categories of legal significance,” but rather “focuses upon the parties’ own characterizations of what happened.” Id. at 1734. The sorting phenomenon I describe in the text is aligned with the structural model Wells describes.
52 See Martha Minow, The Supreme Court, 1986 Term—Foreword: Justice Engendered, 101 Harv. L. Rev. 10, 34 (1987). In a similar vein, Jay Feinman argues that “there are two reasons to classify legal doctrine: to get things done (an instrumental reason) and to get things right (an analytical reason).” Feinman, supra note 47, at 672; see also Lakoff, supra note 12, at 6 (“An understanding of how we categorize is central to any understanding of how we think and how we function, and therefore central to an understanding of what makes us human.”).
53 This characterization can be reformed into Figure 1 by arguing that work on my husband’s career is part of the wider “marriage relationship.” Likewise, the characterization can be shoehorned into Figure 2 by redefining the larger circle to represent a “checklist of duties, in general” and to include “career duties” as a smaller circle representing duties that count in the checklist.
54 My three-year-old daughter Caitlin offered another example of the common denominator model. After observing a photograph in a New Age children’s book of a small boy playing with a doll, Caitlin rejected the photograph’s suggestion that the doll was the boy’s prized possession and instead declared, “That boy is playing with some girl’s doll.” Caitlin seems to have accepted the “reality” that the boy enjoyed the doll, but would not embrace the notion that a doll could actually “belong” to a boy. The common denominator between Caitlin and the book was therefore confined to the proposition that the boy enjoyed the doll. Otherwise, Caitlin embraced a characterization of the doll as the possession of “some girl” whereas the book embraced a characterization of the doll as the possession of the boy in the picture. For another illustration involving a small child and the law, consider the following from conflict-of-laws scholar David F. Cavers: Theories that explain how it is that a foreign rule isn’t foreign law when it is used in deciding a case in another country might seem more useful if I could forget the way in which my son resolved a problem when, at the age of four, he encountered tuna fish salad. “Isn’t that chicken?” he inquired after the first bite. Told that no, indeed, it was fish, he restored his world to order and concluded the matter by remarking to himself, “Fish made of chicken.” The Choice of Law: Selected Essays, 1933–1983, at 46–47 (Durham, 1985). Here the apparent common denominator between the boy’s perception of the tuna and a consensus perception of tuna was the tuna’s chicken-like qualities, such as its white meaty texture.
55 Consider the following example concerning the abortion debate: The new common ground [for the abortion debate] that the majority of Americans seek may indeed be emerging, . . . not from the middle of the abortion debate itself but rather from just a bit off center, around the issue of teen-age pregnancy. This is where the two sides have the greatest potential to converge, prompted by the recognition that neither women nor children will be protected if children continue to have children, dooming them equally to a life of poverty. Madeleine M. Kunin, The Big Divide, N.Y. Times, May 15, 1994, § 7 (Book Review), at 29 (reviewing James Davison Hunter, Before the Shooting Begins: Searching for Democracy in America’s Culture War (New York, 1994)).
56 See, e.g., Patricia L. Winks, Divorce Mediation: A Nonadversary Procedure for the No-Fault Divorce, 19 J. Fam. L. 615, 638 (1980–81); Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. Rev. 754, 769, 795– 801 (1984); see also Fisher & Ury, supra note 7, at 23 (“[I]t is ultimately the reality as each side sees it that constitutes the problem in a negotiation and opens the way to a solution.”); cf. Kennedy, supra note 2, at 176 (discussing a verbal operation named “mediation” which “acknowledges a conflict of claims and proposes a way to resolve it on the arguer’s side”).
57 See Fisher & Ury, supra note 7, at 22–24: Understanding the other side’s thinking is not simply a useful activity that will help you solve your problem. Their thinking is the problem. Whether you are making a deal or settling a dispute, differences are defined by the difference between your thinking and theirs . . . . The ability to see the situation as the other side sees it . . . is one of the most important skills a negotiator can possess.
58 Kennedy, supra note 2, at 179. See J. M. Balkin, The Promise of Legal Semiotics, 69 Tex. L. Rev. 1831, 1834 (1991); Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (With an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 Nw. U. L. Rev. 1046, 1048 (1994). Among the examples Kennedy propounds are: “reverse fault: when a person who innocently injures another innocent refuses to compensate, he is at fault” and “reverse community expectations: following community expectations would be undemocratic because those expectations have been significantly formed by the prior course of judicial decision.” Kennedy, supra note 2, at 179. For an example of flipping from the popular press, see Phillip Pullella, Society Must Share Blame in Sex Abuse, Vatican Says, Philadelphia Inquirer, June 24, 1993, at A1 (responding to concern that sex abuse by priests is a significant social problem, Vatican spokesman says that society itself bears blame: “One would have to ask if the real culprit is not a society that is irresponsibly permissive, hyperinflated with sexuality [and] capable of creating circumstances that induce even people who have received a solid moral formation to commit grave moral acts.”). An example reflecting legal advocacy appears in Peter Marks, When the Best Defense Is the Prosecution’s Own Tapes, N.Y. Times, June 30, 1995, at D20 (describing criminal defense attorney’s strategy of using prosecution tapes of accused in order to establish alternative explanation for accused’s conduct). A literary example of flipping comes from Fyodor Dostoyevsky’s The Brothers Karamazov. After Ivan Karamazov shares the story of Grand Inquisitor with his brother Alyosha, Alyosha responds that although Ivan’s story was meant to cast blame on Jesus, the story actually praised him. Trans. Constance Garnett, 269 (London, 1961). For real-life judicial examples, see Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 829 (1986) (Brennan, J., dissenting) (although the majority cites “increased complexity of federal legislation” as militating against federal court jurisdiction, that factor actually “argues rather strongly in favor of recognizing federal jurisdiction”); Lakeshore Hills v. Adcox, 413 N.E.2d 548, 550 (Ill. App. Ct., 1980) (in injunction action seeking removal of bear from residential neighborhood, one could define “status quo” as retaining bear in neighborhood or one could define “status quo” as the natural state of people and bears living in separate locales).
59 Kennedy, supra note 2, at 175–76.
60 Id. at 176. Kennedy suggests the following examples from legal argumentation: no liability without fault vs. innocent victims should be compensated the proposed rule corresponds to community practice vs. the law, not community practice, should determine the outcome Id. An advocate may sometimes have difficulty charting the line between competing worldviews and the overlapping perspectives of the common denominator model. For an example from Supreme Court case law that could reasonably fit into both models, see Bowers v. Hardwick, 478 U.S. 186, 191, 195–96 (1986), in which the Court grappled with the following dueling characterizations of the dispute over Georgia’s sodomy law: the dispute presented a right to privacy question versus the dispute presented the question whether the Constitution prohibits a state from criminalizing homosexual sodomy occurring at home.
61 Indeed, one could also argue that the recharacterization is so drastic that it resembles direct negation—a technique which arguably does not recharacterize the controversy at all.
62 For discussion of other elements of rhetorical effort, see James R. Andrews, The Practice of Rhetorical Criticism, 2d ed., 16 (New York, 1990) (“In a speaking situation . . . there is always a speaker, a message produced by that speaker, an audience responding to that message, and a complex context made up of a multiplicity of factors ranging from prevailing ethical standards . . . to the size and temperature of the room . . . .”); Bitzer, supra note 27, at 6 (elements of any rhetorical situation are “the exigence, . . . the audience to be constrained in decision and action, and the constraints which influence the rhetor and can be brought to bear upon the audience”). For lawyers, one element of context that is crucial to effective advocacy is timing. That is, an advocate will serve her client well by acting on an unfavorable occurrence before one of the parties has “named” the occurrence as an injurious experience or—even worse—transformed the experience into an actual grievance or claim. See William L. F. Felstiner et al., The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . . , 15 Law & Soc’y Rev. 631, 633–37 (1980–81). If the advocate acts quickly enough, she might even stop the parties from perceiving the occurrence as a violation of their rights. Effective advocacy may reinforce the impression that the experience was simply a part of life for which it would not be necessary or appropriate to seek remedy or redress. Characterization can be instrumental in preventing a potential opponent from interpreting an unfortunate event as a “wrong” done to her. The characterization, however, best comes at an early time before the occurrence has transformed into a dispute.
63 Argument as Character, 40 Stan. L. Rev. 869, 881 (1988).
64 Id. at 926–27.
65 The “Art” of Rhetoric, trans. John Henry Freese, 99 (Cambridge, Mass., 1926). In the same passage, Aristotle provides an early recipe for achieving a positive “spin” on a given set of facts: We must also assume, for the purpose of praise or blame, that qualities which closely resemble the real qualities are identical with them; for instance, that the cautious man is cold and designing, the simpleton good-natured, and the emotionless gentle. And in each case we must adopt a term from qualities closely connected, always in the more favourable sense; for instance the choleric and passionate man may be spoken of as frank and open, the arrogant as magnificent and dignified; those in excess as possessing the corresponding virtue, the fool-hardy as courageous, the recklessly extravagant as liberal. Id. at 97, 99 (footnote omitted).
66 See Marcus Tullius Cicero, On the Character of the Orator, in Cicero on Oratory and Orators, trans. J. S. Watson, 5, 255 (Carbondale, 1970): [C]onsider who form the audience, whether the senate, or the people, or the judges; whether it is a large or small assembly, or a single person, and of what character; it ought to be taken into account, too, who the speakers themselves are, of what age, rank, and authority; and the time also, whether it be one of peace or war, of hurry or leisure.
67 Jerry Frug targeted the following (unusually accessible) quotation from the work of Kenneth Burke: The key term from the old rhetoric was persuasion and its stress was upon deliberate design. The key term for the “new” rhetoric would be “identification,” which can include a partially “unconscious” factor in appeal. “Identification” at its simplest is also a deliberate device, as when the politician seeks to identify himself with his audience . . . . But identification can also be an end, as when people earnestly yearn to identify themselves with some group or other. Here they are not necessarily being acted upon by a conscious external agent, but may be acting upon themselves to this end. Frug, supra note 63, at 872–73 n.13 (quoting Kenneth Burke, Rhetoric—Old and New, in New Rhetorics, ed. Martin Steinman, 62–63 (New York, 1967)); cf. Thomas B. Farrell, Knowledge, Consensus, and Rhetorical Theory, 62 Q.J. Speech 1, 13 (1976) (articulating a new rhetoric concept of identification: “Knowledge which is assumed to be held by other persons thus involves the rhetor with the complicity of other knowers, whose interests are now a factor for reasoned consideration.”). The joinder of rhetoric with the process of identification with a community is reflected in the work of other legal scholars. See, e.g., Sarat & Kearns, supra note 6, at 12; White, supra note 6, at 701.
68 Accord, Frug, supra note 63, at 873 n.13 (finding little use for the persuasion/identification distinction); see also Goodrich, supra note 6, at 117 (finding a place for both identification and persuasion in analyzing the intersection of law and the new rhetoric: “The rhetorician . . . is . . . in pursuit of the agreements as to value, the consensus and the identifications which will allow the law to be portrayed as non-arbitrary, persuasive and . . . desirable.”).
69 Talking Voices: Repetition, Dialogue, and Imagery in Conversational Discourse 12 (New York, 1989).
70 To illustrate this point, Tannen draws from the tenet that students understand information best “if they have discovered it for themselves rather than being told it.” Id. at 17.
71 Listening and Speaking, in Languages and Linguistics: The Interdependence of Theory, Data, and Application, eds. Deborah Tannen & James E. Alatis, 294, 316 (Washington, 1986). For reference to the importance of audience in related disciplines, see Andrews, supra note 62, at 28 (“The audience for any message is one of the most important constituents of the rhetorical act with which a critic must deal.”); Karl Llewellyn, On What Is Wrong with So- Called Legal Education, 35 Colum. L. Rev. 651, 658 (1935) ( “[T]o fight wolves, you have to know wolves. And that wolf-study is a proper part of legal training.”).
72 The limitations of universal principles in rhetorical wordplay are illustrated by the abortion debate. Standing alone, “life” and “choice” are values that most citizens support. Yet the terms pro-life and pro-choice do almost nothing to resolve the clash of the two values. See Alon Harel, Bigotry, Pornography, and the First Amendment: A Theory of Unprotected Speech, 65 S. Cal. L. Rev. 1887, 1926 (1992); Francis J. Mootz III, Rethinking the Rule of Law: A Demonstration That the Obvious Is Plausible, 61 Tenn. L. Rev. 69, 183 (1993); cf. Michael R. Hagan, Roe v. Wade: The Rhetoric of Fetal Life, 27 Cent. States Speech J. 192, 197–99 (1976) (noting Roe Court’s evasive treatment of the term life). Another example of a conversation-halting truism that does little to advance or resolve debate is “We must support our troops”—a principle sometimes invoked in discussions whether a country’s involvement in military conflict is advisable.
73 Bird by Bird: Some Instructions on Writing and Life 178 (New York, 1994).
74 In evaluating the accuracy of this description, consider its source.
75 See, e.g., Haig A. Bosmajian, Metaphor and Reason in Judicial Opinions (Carbondale, 1992) (law); Lakoff & Johnson, supra note 43 (linguistics and philosophy); Mark Johnson, Moral Imagination: Implications of Cognitive Science for Ethics (Chicago, 1993) (ethics); Thomas Ross, Metaphor and Paradox, 23 Ga. L. Rev. 1053 (1989) (jurisprudence); Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371 (1988) (jurisprudence). Although much writing has focused on metaphor, other tropes—such as metonymy, simile, and synecdoche—are also an important part of this scholarly effort. Corbett defines these major tropes as follows: Metaphor—an implied comparison between two things of unlike nature that yet have something in common Simile—an explicit comparison between two things of unlike nature that yet have something in common Synecdoche—a figure of speech in which a part stands for the whole Metonymy—substitution of some attributive or suggestive word for what is actually meant Corbett, supra note 20, at 479–81.
76 Cf. Lakoff & Johnson, supra note 43, at 6 (“[T]he human conceptual system is metaphorically structured and defined.”).
77 Goodrich, supra note 6, at 106.
78 Harris, supra note 49, at 1226.
79 Cf. Aristotle, supra note 65, at 355 (“It is metaphor above all that gives perspicuity, pleasure, and a foreign air . . . ; but we must make use of metaphors and epithets that are appropriate. This will be secured by observing due proportion; otherwise there will be a lack of propriety.” (footnote omitted)).
80 See id. at 169 (“The speaker should show himself to be of a certain character and should know how to put the judge into a certain frame of mind.”); Paul D. Erickson, Reagan Speaks: The Making of an American Myth 1 (New York, 1989) (stating that communication is not only the transfer of information, but also a unifying process of commitment to values and beliefs presented by the communicator).
81 Friedrich Nietzsche, Thus Spoke Zarathustra, in The Portable Nietzsche, ed. & trans. Walter Kaufmann, 103, 307 (New York, 1954). Nietzsche explains “the way—that does not exist.” Id.
82 Frug, supra note 63, at 927.
83 Hauser, supra note 5, at 121.
84 See id. (arguing that mannerism movement in art created a method of characterization that depends on the inconsistency of character).