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"Mootz, Francis J"
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The rhetoric of judging well : the conflicted legacy of Justice Anthony M. Kennedy
No detailed description available for \"The Rhetoric of Judging Well\".
eBook
Classical Rhetoric and Contemporary Law
Pairs passages from works of classical rhetoric with contemporary legal rulings to highlight and analyze their deep and abiding connections in matters of persuasion
Classical Rhetoric and Contemporary Law: A Critical Reader is a rich work that analyzes the interplay between ancient rhetorical traditions and modern legal practice, reestablishing the lost connections between law and classical rhetoric. From Isocrates’s Panegyricus in 380 BCE to the landmark US Supreme Court case Trump v. Hawaii in 2018, and from Antiphon’s fifth century BCE First Tetralogy to 1995’s O. J. Simpson trial, the volume draws on an array of sources to illuminate how ancient rhetorical insights may even today challenge and enrich our grasp of contemporary legal principles.
The collection opens with a brisk review of the historical development of rhetoric. The second part examines a pair of rhetorical theorists whose works frame the period across which classical rhetoric declined as a mode of thought. A contemporary appellate case contrasts with the work of Giambattista Vico, an eighteenth-century professor of rhetoric who warned of the separation of law from rhetoric. The analysis of the work of twentieth-century scholars Chaïm Perelman and Lucie Olbrects-Tyteca shows that where Cartesian rationality fails, the humanistic tradition of rhetoric allows the law to respond to the needs of justice. In the third part, ten case studies bring together a classical rhetorical theorist with a contemporary court case, demonstrating the abiding relevance of the classical tradition to contemporary jurisprudence.
With its cross-disciplinary appeal, Classical Rhetoric and Contemporary Law encompasses the work of legal, rhetorical, English, and communication scholars alike, catalyzing interactive exploration into the profound ways ancient rhetorical insights continue to shape our comprehension of today’s legal landscape.
CONTRIBUTORS
Vasileios Adamidis / Elizabeth C. Britt / Kirsten K. Davis / David A. Frank / Michael Gagarin / Eugene Garver / Mark A. Hannah / Catherine L. Langford / Brian N. Larson / Craig A. Meyer / Francis J. Mootz III / Susan E. Provenzano / Nick J. Sciullo / Kristen K. Tiscione / Laura A. Webb
eBook
Rhetorical knowledge in legal practice and critical legal theory
A clear summary of contemporary rhetorical philosophy and its intersections with hermeneutics and critical theory . This book describes the significance of rhetorical knowledge for law through detailed discussions of some of the most difficult legal issues facing courts today, including affirmative action, gay rights, and assisted suicide. Francis J. Mootz responds to both extremes, those who argue that law is merely a rhetorical mask for the exercise of power and those who demonstrate an ideological faith in law’s autonomy, and he breaks new ground by returning to modern classics in the fields of rhetoric and hermeneutics. Drawing from Chaim Perelman's "new rhetoric" and Hans-Georg Gadamer's "philosophical hermeneutics," Mootz argues that justice is a product of rhetorical knowledge. Drawing from Nietzsche, Mootz’s conception of rhetorical knowledge opens up the dynamic possibilities of critical legal theory.
eBook
The Persistence of Tort Duty
Tort Duty in the Restatements The American Law Institute produces restatements of the law that simultaneously reflect and advance the state of the common law. The overlapping use of foreseeability in each analysis should not lead courts to conflate duty and proximate cause into a generic inquiry into the foreseeability of harm suffered, leaving it to the jury to resolve as a question of fact. In 1968, the California Supreme Court in Rowland v. Christian rejected the baroque common law approach to special duty rules, declaring that all persons simply owe a general duty to others unless clear considerations of public policy dictate otherwise.\" A departure from this fundamental principle [of a general duty] involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.\"
Journal Article
Gadamer and Ricoeur
Hans-Georg Gadamer and Paul Ricoeur were two of the most important hermeneutical philosophers of the twentieth century. Gadamer single-handedly revived hermeneutics as a philosophical field with his many essays and his masterpiece, Truth and Method. Ricoeur famously mediated the Gadamer-Habermas debate and advanced his own hermeneutical philosophy through a number of books addressing social theory, religion, psychoanalysis and political philosophy. This book brings Gadamer and Ricoeur into a hermeneutical conversation with each other through some of their most important commentators. Twelve leading scholars deliver contemporary assessments of the history and promise of hermeneutical philosophy, providing focused discussion on the work of these two key hermeneutical thinkers. The book shows how the horizons of their thought at once support and question each other and how, in many ways, the work of these two pioneering philosophers defines the issues and agendas for the new century.
eBook
Law, Hermeneutics and Rhetoric
Mootz offers an antidote to the fragmentation of contemporary legal theory with a collection of essays arguing that legal practice is a hermeneutical and rhetorical event that can best be understood and theorized in those terms. This is not a modern insight that wipes away centuries of dogmatic confusion; rather, Mootz draws on insights as old as the Western tradition itself. However, the essays are not antiquarian or merely descriptive, because hermeneutical and rhetorical philosophy have undergone important changes over the millennia. To \"return\" to hermeneutics and rhetoric as touchstones for law is to embrace dynamic traditions that provide the resources for theorists who seek to foster persuasion and understanding as an antidote to the emerging global order and the trend toward bureaucratization in accordance with expert administration, violent suppression, or both.
eBook
Protecting victims from liability insurance companies that add gratuitous insult to grievous Injury
The Injustice of the Common Law Rule That Liability Insurers Owe No Duties to Third Party Claimants A long-standing common law rule provides that a liability insurer owes no duties in tort or contract to a third-party claimant who has been injured by its insured.2 This stands in sharp contrast to the heightened duty of good faith owed to its insured, a duty grounded in their contractual relationship, but which gives rise to tort liability in some states.3 The logic of distinguishing between the insured and the third-party claimant appears unassailable: the insurer has contracted only with the insured, and the primary purpose of the contract is to defend and indemnify the insured rather than to confer a benefit on a person suing the insured.4 Imposing a tort duty on the insurer to act in good faith toward the third-party claimant would create an insoluble conflict by ignoring the fact that the insurer steps into the shoes of the tortfeasor as the tort victim's litigation adversary.5 Thus, courts treat the liability insurer and the third-party claimant as opposed parties who may each seek to maximize their own welfare in the litigation without regard to the interests of the other party. [...]time, there will be too many cases where justice is denied through the strategy of harassment and delay.
Journal Article