The Rhetorical Force of the Law: An Analysis of the Language, Genre and Structure of Legal Opinions

Author: Susan Tanner

Degree: Ph.D. in Rhetoric, Carnegie Mellon University, 2020

Rhetorical scholars have long advocated for the study of legal discourse because of the “centrality of language in the production, exercise and subversion of legal power.”[1] The law’s power comes from more than simply its force through proclamations, statutes and speech acts; it is inherent in its constitutive nature, through which courts shape and reflect individual realities and lived experiences. In this dissertation, I account for the force of legal discourse through an analysis of how courts use subtle rhetorical strategies in legal opinions to maintain legitimacy and authority and shape a common understanding of the law. Further, I seek to bring legal and rhetorical scholarship into closer concert by applying both a legal and a rhetorical analysis to multiple corpora, including an entire line of jurisprudence.

Through an analysis of thousands of texts, from across courts (including the US, UK and Navajo Supreme Courts) jurisdictions, and legal topics, I identify key genre features of legal opinions add to the rhetorical force of the discourse. Through a rhetorical analysis of appellate opinions, I examine the ways in which judges choose legal starting points, craft their arguments and anticipate counterarguments, and the effect these choices have on garnering acceptance of legal concepts within primary and secondary audiences. Further, I explore the promise of advocacy as a way to mediate access to the legal process. Finally, my research examines the constitutive nature of the law and attempts to explain how a body of law and its related concepts are shaped through legal discourse. To do this, I trace the inception of privacy law in the US from Warren and Brandeis' The Right to Privacy through to current legal conceptions of privacy. Among my findings are that the use of quasi-scientific reasoning and argument structures lend ethos and authority to legal arguments, and that courts use prior discourse in a highly sophisticated manner that deters discussion of legal alternatives. My research adds to an understanding of how the law is shaped by discourse and suggests a tool for non-legal experts to understand the role of prior text in contemporary decisions.