University at Buffalo School of Law smashing silos building bridges Doing (And Teaching) Scholarship Outside The Disciplinary Boxes STEPHEN PASKEY University at Buffalo School of Law

Defining “discipline” noun [1] the practice of training people to obey rules or a code of behavior, using punishment to correct disobedience. [2] a branch of knowledge, typically one studied in higher education.

Why define ourselves at all? “Establishing common ground is the basis of a discipline.” Scholarly publications are the way “we establish a consensus … about what we are studying as well as the sense that we have shared beliefs and methods, common ancestors, and some agreement on canonical components.” Linda Berger, Linda Edwards, & Terri Pollman, The Past, Presence, and Future of Legal Writing Scholarship: Rhetoric, Voice, & Community (2010)

Another definition? SILO: noun. a system, process, department, etc. that operates in isolation from others. If we define ourselves, do we risk: Missing important insights about law and legal communication? Isolating ourselves from each other and scholars in other fields? Creating new hierarchies with our community?

should we define what we do as rhetoric?

“Law as Rhetoric”? The core of our work “is rhetoric, and in particular the rhetorical concept that meaning is constructed out of the interaction of reader and writer, text and context. … The study and practice of ‘law as rhetoric’ is a thread that can run through the fabric of a professional life, weaving together the legal writing professor's work in scholarship, teaching, and professional service.” Berger, Edwards, & Pollman

the legal EFFECTS of texts?

More than Creating Meaning? “[A] work of rhetoric is pragmatic; it comes into existence for the sake of something beyond itself; it functions ultimately to produce action or change in the world…. In short, rhetoric is a mode of altering reality …” Lloyd Bitzer

A Mode of Altering Reality? “[T]here are three constituents of any rhetorical situation: … the exigence, … the audience to be constrained in decision and action, and the constraints which influence the rhetor and can be brought to bear on the audience.” Lloyd Bitzer

The limits of storytelling… The “storytelling mode,” in itself, “gives no guidance or suggestion about which stories to tell.” Martha Minnow

… are the limits of rhetoric Just as the storytelling mode cannot tell us which stories to tell, rhetoric cannot tell us what should count as an exigence. Nor can it help us fully understand the constraints in a given situation, or assess whether the change we seek could be better achieved by acting outside the law.

Other Limits? James Phelan & Peter Rabinowitz suggest that no definition of “story” is “best,” because any definition will “highlight[] certain characteristics of individual narratives while obscuring and even effacing others.” The same is true for any attempt to define what we do – as rhetoric or otherwise.

“What if we understood literary texts not as unified but as inevitably plural in their forms – bringing together multiple ordering principles, both social and literary, in ways that do not cannot repress their differences. From this perspective, could one formal element of a text ever manage to contain and control the others?” Carolyn Levine, Forms

Rhetoric Cannot Contain Story The structure of legal rules demands that legal rhetoric take the shape of a story. And yet every act of legal rhetoric is a story in itself. In law, there is always the client’s story, and the story of a lawyer’s efforts to change the client’s story. And this is true for EVERY ACT OF RHETORIC

A simplified model? NARRATIVE RHETORIC LOGIC

Legal Thought & Communication? What we do is more than a branch of rhetoric. It is not a separate “discipline” unto itself. Rather, our work involves the application of varied ordering principles – not just rhetoric, but other frames, other forms, other disciplines – to a particular and remarkably complex set of circumstances.

BUILD bridges not silos

BUILDING BRIDGES / 1 Think in terms of law and … … and rhetoric … and narrative … and cognitive linguistics … and sociology and psychology and economics and political theory and learning theory … … and whatever is useful

One Example Stephen Paskey, Telling Refugee Stories: Trauma, Credibility, and the Adversarial Adjudication of Claims for Asylum

BUILDING BRIDGES / 2 Read and engage with scholarship outside the legal academy as appropriate

A Common Language? Narrative theorists speak in terms of story and discourse; with the addition of reference for non-fiction narratives. Tzvetan Todorov, An Introduction to Verisimilitude, in The Poetics of Prose (Cornell 1977).

BUILDING BRIDGES / 3 Engage with scholars outside this community and the legal academy Develop contacts & mentors Present at conferences Publish in non-law journals

Presenting Rhetoric or Narrative Rhetorical Society of America (RSA) International Society for the Study of Narrative (ISSN) Modern Language Association (MLA)

Interdisciplinary Publishing Law & Society Review Law & Social Inquiry Empirical Legal Studies Southern Cal. Interdisciplinary Law J. Yale Journal of Law & Humanities Law & History Review American Journal of Legal History Critical Analysis of Law Philosophy & Public Affairs Legal Theory

BUILDING BRIDGES / 4 Resist efforts to define what we do as a “branch” of “anything,” & celebrate the intellectual diversity of our community.

BUILDING BRIDGES / 5 Resist any suggestion that every member of our community should engage in “scholarship.”

*discipline? a community without DISCIPLINE. Noun. [1] the practice of training people to obey rules or a code of behavior, using punishment to correct disobedience.

Creating Hierarchies? Will defining ourselves as a “discipline” mean that … Some scholarship is more valued than others? People who do scholarship are more valued than people who don’t? Some schools are ranked higher than others based on criteria that do not relate directly to teaching?

Questions for Discussion Should our work be defined as a “discipline”? If so, what and why? What’s the role of rhetoric? Of narrative? Of logic? How can we encourage truly inter- or cross-disciplinary scholarship? How can we avoid creating silos? How can we avoid creating hierarchies?

Thank you. STEPHEN PASKEY University at Buffalo School of Law sjpaskey@buffalo.edu