The New York Sophist

Spoiler: I did not follow the Four Book Rule

A couple of posts ago I mentioned I’m prepping a course in legal argumentation to run in September 2021. I’ve made a lot of progress on the course and thought I’d update you all on what’s going on with it.

Books!

First and most importantly are books. I did not follow the much celebrated “Four Book Rule” that I wrote about previously. The reason why is that some of the books are not books for the course but are reference and research books for some of the things that we’ll do in the class.

The books will be peppered with a couple of readings here and there. I am considering starting with some Critical Race Theory readings as law is it’s starting place. Given the heated conversation the media is having about Critical Race Theory I think that starting there would be a nice way to communicate the importance of the law in larger discourses, and how the discourse of the law has been seriously challenged.

Another good place to start would be with a very particular legal case. I’m thinking of the challenge to President Trump’s so-called “Travel Ban” brought against the government by the ACLU and heard in the U.S. Fourth Circuit. These readings might be related to these two possible opening acts.

For the CRT opening act, Derrick Bell and Richard Delgado are top choices. For the 4th circuit case whatever I could find about the basis of the challenge and the reasons that they sued the government. Maybe even the transcript. Tempted to just jump right in.

Scope!

Since I’m a rhetorician and a sophist on top of that, I can’t help but find continuous unfolding multiple meanings in any phrase. “Legal Argumentation” has the obvious interpretation that the course should teach people how to argue within the law – how to argue like a lawyer would argue. But also just as interesting is the scope of how we argue about the law – the normative aspects of it, existence, it’s history, and all that. So that will be the other half of the course. That part of the course is following the (blessed) Four Book Rule. In that part we’ll take a look at the two shortest books and then engage Fiss and Chemerinsky together to create a vision of a law system that would respond to the critiques in some degree.

Stuff to Do!

The first part will be re-adjudicating some cases that are of some recent interest to the students or for whatever sorts of issues they care about the most. The second part is questioning the judicial system from the outside using argumentation. I think it’s a good combination.

My interest these days in in having students create arguments about things they feel and think about the texts. I’m trying to dismiss with reporting on the meaning of the text entirely, and using any semblance of that as a starting point for the generation of new texts that are in conversations and inspire new conversations about the readings.

Outcomes!

After the course is over I hope the students will be able to create some entry-level arguments the way lawyers would as well as gain a critical appreciation for listening to legal argument.

I also hope they are able to marshal arguments against our legal system as well as defend it using the practice and familiarity with the readings and the critiques of the law they are going to get in the books and other readings.

Winning Arguments Podcast – starting before it starts!

My latest project is helping to build a podcast on argumentation that seeks to offer analysis of arguments circulating in the public to give people better ways of thinking about them while also suggesting ways these arguments could be made better.

I’ve never done the “build in public” thing before and so far so good. I like the idea that there will be an archive of how we built the show up. I think that I sort of have already done this in the past with courses – typing about and talking about the various choices I’m trying to make and decisions that will make the course work properly.

Of course build in public is quite popular among coders and IT types. It hasn’t hit education yet and might never. Teachers are notoriously insecure in having open conversations about teaching. It’s not really their fault. Society and government have made teaching a very difficult and low-compensated task indeed. Before it can move that way, coming up with a discourse about teaching that encourages open conversation, doubt, and failure as normal parts of the job has to happen. But this is another post!

Looking forward to seeing how this podcast goes. So far it’s been great. Loving the conversation and the things it has me thinking about.

We just launched our “Episode 1” on the 28th, see what you think of it. All comments welcome here or on the YouTube channel.

And here’s the behind the scenes version for the build and public piece of the project:

The last time I went to vote I went with my friend David the Poet Who Lives Next Door.

This time now I live in his house with him so he’s the Poet Who Lives Upstairs.

We take these opportunities to go vote to chat a bit about our view of politics, voting, and other random stuff.

I like to think of the act of voting as rhetorical invention rather than the conclusion of an argument or the stopping point of a debate. The day, the act, the afterward are all generative of more discourse and in that way are far more democratic than the casting itself.

Oh also David really is a poet. Check out some of his work.

A Perspective on Class Creation

Years ago a conversation I had with a friend plunged into the question of what makes a college course memorable.

Our discussions were based on the following assumptions:

1. A course was good if we didn’t feel compelled to go to it but wanted to attend it and even looked forward to going to it.

2. The course was still something we thought about even now, years and years after undergraduate was completed.

3. We felt the course had meaning – that is, we were not “in school” but doing something much more meaningful in that space and time, something that might literally seem to apply to a broad range of systems of thought.

After determining this, we thought for a bit and tried to come up with commonalities. The thing we determined that was the only common denominator in all these rare cases was that the course was built around four books or less, no textbooks, with a few other readings here and there along side it. The course asked us to come up with our own opinions about the books and with the books for the others in the course using the direct instruction or class discussion as well.

I’ve tried to hold onto this with some restriction. I’ve added the idea that perhaps books for a course should be seen as resources or reference material (Sort of like assigning the AP Stylebook in a journalism course, or the MLA Handbook in a writing course). But the fundamentals of this are still solid in my mind: The course should be about making something out of resources and other texts rather than responding to, or trying to compose oneself out of what the readings offer.

One of the best natural resources that we do not take advantage of is what students bring with them to the classroom in terms of life experience, perspective, feeling, and ambition. These can be used as resources to add to the class – to help make sense of the material in ways that will help it make even more sense for others who are listening to and responding to what their peers are creating.

Whenever there’s a controversy – gun violence, racism, sexism, or any of the things that occur in the United States with frightening regularity – there is always the call for vibrant national debate on the issues. I have always wondered what journalists mean when they call for “national debate” on a particular issue. Very much like the giant Fezzik in The Princess Bride, I usually think “that word you keep using, I don’t think it means what you think it means.”

The call for national debate is a call for engagement, for persuasion on the issues. That much seems clear. Where I lose the thread is the question of what debate can bring to a controversy that is immediate, hot, and problematic. The combination of those three things is the characteristic invitation to public discourse (somewhat connected to Kenneth Burke’s idea of the characteristic invitation to rhetoric: Identification so close to division that you cannot spot the difference). The call is a hopeful one; a call for clarity, a call for positions that will address the issue and address the need for there to be some action, some response, something to do to ensure some sort of prohibition on the event so it never happens again.

Additionally the rhetoric of such a proposal should explain and calcify the event so that audiences feel that they are safe, that there’s some sort of stability, and the event will never happen again (even though you careful readers have already noticed that I mentioned these events happen with regularity). Do you remember when your parental figure – dad or mom or whoever – would blow on your wounds, the one’s you’d get from falling, failing to ride your bike, or other crazy child activities? That blowing is medically unnecessary – probably even harmful given the bacterial count of the average human mouth – but it helped you feel like things were better. It was an important ritual of healing, and without it you just couldn’t feel better. That’s an essential part of that sort of rhetoric.

So half of the call is a call for clarity through discourse and healing through the act of public discourse. But we still haven’t figured out why there’s a call for national debate. What is it in particular about debate that captures the political imagination here? Why is debate the solution when things are hot, immediate, and frightening?

I think most people recognize in debate a power to provide clarity, or at least clear alternatives in a situation. People also recognize debate as a place where reasons are brought to the surface in a lot more detail than they are in other forms of discourse. It is this twin recognition that pushes people to call for “national debate” when something grabs our attention.

Even though I’m a huge supporter of debate, particularly around public policy questions, I think these calls are misguided. What journalists and others really want is national conversation about these issues, or even national argument. The reason why is that the positions are for our opponents to accept. One of the limits of debate as a discourse is that it is always for an audience who, through tacit agreement in attending the debate or listening to it, does not have an opinion during the course of the debate – or they suspend that view until the end where they will be forced to compare it to what transpired in the debate.

Whenever a trauma occurs in the national scene, we really need discussion or dialogue in order to sort the positions. Debate is only valuable to determine differences between refined positions. Debate does not work very well at refining the positions that could exist in a controversy. Discussion and dialogue do that well. Debate takes those possible positions to the extreme. A debater is obligated to provide the strongest case they can for their take on their side. This helps the audience see plain the motives being articulated and the resulting attitude. This will always invite reticulation in their own mind, or among friends or family, about the layers of the issue.

Whenever there’s a call for more national debate we should pause and consider what it is specifically that debate does for us. What is debate’s strength? What is its weakness? Most of the time we don’t really know the positions and we certainly don’t want corporate media or newsreaders establishing those for us. We need time and we need to wade through some words before we are ready to debate. And we know we are ready to debate when we are ironically certain that we are uncertain about the strength of opposed positions. Debate will very quickly help us sort them and bring other possibilities to the front of our minds.