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ARGUMENTATION AND ADVOCACY 36 (Winter 2000): 151-160 TEACHING ADVANCED SEMINARS IN LEGAL AND BUSINESS ARGUMENT: SHARPENING THE CRITICAL EDGE Kathleen Farrell and David Hingstman Undergraduate communication studies courses in which students encounter legal and business argument are a staple of many curricula, and perennial favorites of students who believe such courses will make them more effective professionals. Time con- straints and disciplinary reading practices often limit discussion of legal and business argument to descriptions of judicial decisions and legal “rules” derived from them or case studies of business decision-making and public relations campaigns. Instructors reas- sure themselves that law and business school training will fill in the rest. We take issue with the belief that under- graduate exposure to legal and business argument must be limited in this way. Argumentation happens because public life is a struggle over meanings, actions, atti- tudes, and resources. We are constantly confronted with the question of what things mean, and of what, if anything, we should do. While this has traditionally been most obvious in political campaigns and policy disputes, it is just as significant in law and business—two of the most important arenas in which our students will conduct their public lives. As de Tocqueville noted early in the Republic’s history, Americans have always placed a unique trust in the ability of courts to mediate apparently intractable disputes. Increasing disenchantment with electoral politics has led many Americans to focus ever more intently on courts as the best Kathleen Farrell is an Associate Professor of Communication ‘Studies a the University of lowa. Dacid Hingstman is Assistant Profesor of Communication Studies atthe University of Towa. forum for debating and resolving the most urgent political and social questions. As a result, in an increasingly specialized, techni- cal, and fragmented political world, the courts are called upon to resolve a growing number of argumentative controversies that fall outside the traditional legal context. For example, how shall our society work out the proper relations between the races or the sexes? What form of genetic, child-rearing, or caring relationship defines “motherhood” or “fatherhood?” What responsibilities do corporations have to pay for the damages their goods and services may produce and under what conditions? Such questions are defined, debated, and negotiated through arguments by participants in the community of legal discourse. And the peculiar phras- ings developed through such activities as the talk of due process, equal protection, funda- mental rights, informed consent, and con: structive notice diffuse themselves through- out our public vocabularies, available to do new work in very different contexts. Similarly, the modern corporation by now permeates almost every corner of modern life, including government, the media, educa- tion, and everyday family life. Political campaigns and policy deliberations cannot escape corporate influence. Neither can health care, retirement decisions, gender roles, parenting, the impact of technology on human interaction, the stability and prosper- ity of communities or the dignity and fulfillment of workers at home and abroad. Many argument teachers have chosen to study communication processes and public decision-making outside what we considered to be the tainted world of business. But as 152 LEGAL AND BUSINESS ARGUMENT Deetz’s (1992, 1995) work compels us to recognize, democracy, representation, free- dom of speech and personal identity are negotiated every day within the work environ- ment. And the words that accompany corpo- rate argument, the invocations of entrepre- neurial risk-taking, free-market competitive imperatives, customer and public relations, profit. maximization, and quality control frequently travel across disputational bound- aries to other sites. The global challenges we face in an ever-shrinking world are increas- ingly the result of the complicated inter- twined practices of both corporations and nation-states. Argumentation pedagogy that pays special attention to law and business in more special ized seminars, therefore, seems more than justified for a number of reasons. First, peda- ‘gogy adheres increasingly to a view of commu- nication not as given, but as a project that must be taken up by each new generation of students as they confront ethical and political choices. Argument pedagogy that engages students in understanding how legal and busi- ness discourse communities make effective decisions in the context of active struggles, prepares them to enter a world in which actors are called upon to decide among alternatives that all appear to be good ideas, or, more likely, to choose when none of the available choices seems adequate. Second, students will learn the skills of analysis and advocacy best in the context of actual legal and corporate decision-making. Finally, argu- mentation pedagogy should pay special attention to the concerns and strategies of cultural criticism, understanding full well that the insular expert examinations of legal and business controversies cannot substitute for understanding them in their larger social and political contexts (Goodnight 1991). The Legal Argument Seminar Survey courses on law in which students encounter legal argument are a perennial WINTER 2000 favorite of undergraduates, whether offered in classics, communication studies, history, political science, sociology, or other disci- plines. Such courses are offered under titles like “Business Law,” “Constitutional Law and Policy,” “English Constitutional His- tory,” “Freedom of Expression,” Criminology,” “Philosophy of Law, man Law” and “Sociology of Law.” Time constraints and disciplinary reading practices often limit discussion of legal argument to descriptions of famous legal controversies and digests of judicial decisions and the legal “rules” derived from them. The inclusion of legal materials often serves merely as a supplement to illustrate or exemplify the interpretive principles or practical concerns of an academic field. A line or series of constitutional law decisions, for instance, may be considered as a whole to illustrate changes over time in the relationship among the executive, legislative and judicial branches of American government or the balance of political forces between sovereign and sub- ject. The judgments in a set of contract law cases and a review of fair trade statutes might be used to explain why an automobile dealer must provide the customer with a written description of the manufacturer's warranty before transferring title of a new car. Instructors in these courses are aware of a problem that many students do not discover until well after the term has ended. Students often enroll in courses to discover how legal arguments and judgments are made. But it is unlikely that students will learn about “the law” in the sense of a richer understanding of how advocates and litigants argue within legal institutions. Many faculty in these survey courses do not perceive this discrepancy between the knowledge sought and the training given asa problem. Those who have commented on the issue offer at least two explanations. One is that the survey course or seminar intro- duces students to subject matters that will be ARGUMENTATION AND ADVOCACY taken up in more intellectually rigorous, argument-sensitive ways in first-year law school classes. The assumption is that those students who truly want to learn about “the law” will proceed to law school after finish- ing their baccalaureate degrees. The under- graduate courses thus contribute to legal education by directing some students toward further inquiry into legal issues who other- wise might ignore legal matters and practices as alien to their lives and interests. A second view is that the survey course instructor lacks competency to teach stu- dents about legal argument. The assumption here seems to be that competency in argument is primarily a function of expertise in the particular subject matter of the law. To teach students how the advocates in hate speech cases construct arguments about the relationship between hate speech and free expression, then, instructors must be able to call upon an intimate familiarity with the entire judicial conceptual repertoire. If the teacher has not committed to near memory the texts of decisions in cases like Chaplinsky, Terminiello, Feiner, Cohen, and Gooding, as well as the wealth of legal and philosophical commentaries on these and other disputes, how can she be sure that she is really teaching students the right arguments? Better to leave that task to the experts, the constitutional law scholars who can bring their long study of these issues to class discussions in legal seminars. We will take issue with these two perspec- tives to the degree that they counsel that undergraduate exposure to legal argumenta- tion must be limited to the brief descriptions of survey courses. We are concerned, ini- tially, that these views tend to reinforce an impoverished notion of argumentative prac- tice that equates invention with discovery. No matter when and where it occurs, argumentation cannot “make do” with stan- dardized products taken off the shelf and repackaged for general consumption. Argu- 153 FARRELL AND HINGSTMAN mentation cannot be separated from the contexts of its occurrence without paying a high interpretive price. For opponents often challenge the very conventions of the forums and sites in which they participate to expand the scope of controversy. Such practices generate new argumentative forms and strat- egies which are carried along to other sites and there blocked or further altered accord- ing to the exigencies of those situations. Nowhere is this more evident than in the practices of legal argument. Richard Gas- kins, for one, has studied patterns of advo- cacy in the Warren Court cases associated with expanding procedural due process protections in the 1960s. Some have assumed that these decisions simply created new sets of constitutional rights that were modeled on previously discovered protections, such as freedom of speech or religion. But his readings reveal that the due process revolu- tion could not have occurred without persuad- ing the Court to change the very procedures by which those rights and interests were considered in particular decisions. Gaskins chronicles how liberals invented and de- ployed arguments-from-ignorance about the effects of arbitrary administrative decisions on individuals to reverse the burdens of proof and empower the Court to scrutinize strictly federal and state agency rulings. Furthermore, the burden-shifting strategy was carried along into new contexts of judicial action where it was made to serve very different concerns and interests. In the 1970s and 1980s, conservatives appropriated the argument-from-ignorance form to mask judicial interest-balancing in the Burger Court’s version of administrative agency review (Gaskins). To develop an understanding of argumen- tation as process and procedure, students must be exposed to oppositional strategies that unfold within events or particular controversies. A related concern produces another response to those who would limit