Part V - Law’s Power to Exclude Voices

11 Framing the War on Drugs Judith Butler and Legal Rhetorical Analysis

Erin Leigh Frymire

11.1 Introduction

Legal rhetorical study draws our attention to the constitutive power of legislation and judicial decisions. These documents not only establish legal precedent but mold our social and cultural realities via rhetorical and material means. Judith Butler’s work explores this interaction between the rhetorical and the material, the discursive and the bodily. Though Butler is most widely known for their theories on gender (which certainly have important legal applications), I focus on Butler’s later work on state power. In this work, Butler provides a theoretical framework for understanding law’s constitutive power and its role in human lives. This framework can reveal how law constitutes social norms and how those in power deploy the law to protect those norms.

In this chapter, I use Butler’s concepts of frames of war and precarious life to analyze the 1986 Anti-Drug Abuse Act (ADAA), which infamously mandated the same minimum sentence for the possession of 100 times as much powder cocaine as crack cocaine. The two forms of the drug are pharmacologically equivalent and yet, with this 100:1 ratio, they were (and still are) treated very differently by federal law. This difference is not chemical but social and rhetorical, as the two forms are associated with distinct socioeconomic and racial groups: powder cocaine with wealthy, white drug users and crack cocaine with poor, black drug users. Using Butler’s theories to examine the ADAA and the contemporary political discourse on the War on Drugs, we can see how this law reinforced racist structures in the United States and how it gained public support.

After a brief introduction to Butler’s body of work, particularly as it pertains to law, I turn to an overview of the ADAA, its features, and the legislative changes since it was passed in 1986. I then use Butler’s frames of war and precarious life to demonstrate how these concepts shed light on the rhetorical strategies used by the state, as well as how they are useful in legal criticism more broadly. These concepts highlight not only the rhetorical strategies used within the ADAA and the political discourse surrounding it but also illuminate how the ADAA is itself a rhetorical strategy for reproducing norms and maintaining a racist status quo. This case demonstrates how Butler’s work provides tools for legal criticism that can help us to understand law’s social and cultural power, as well as its revolutionary potential to challenge the entrenched norms of racism and division.

11.2 Butler’s Theoretical Framework

It is important first to elucidate central concepts in Butler’s work: the formation of the subject and the function of cultural norms. For Butler, there is no a priori subject. Charlotte Chadderton, who examines how Butler’s theories can be applied in the study of racism and education, explains that Butler sees the individual as “subjectivated, or rendered a subject, through norms and discourses. Identity is a normative ideal rather than a descriptive feature or experience” (Chadderton, 2018, p. 48). These “norms and discourses” come from the cultural, social, political – and legal – contexts surrounding the individual. As each person encounters these norms, they respond to them, and it is in this response that subjecthood forms.

Within their discussion of gender and identity formation, Butler explains how we act out gender and other aspects of identity as though acting out a play:

The act that one does, the act that one performs, is, in a sense, an act that has been going on before one arrived on the scene. Hence, gender is an act which has been rehearsed, much as a script survives the particular actors who make use of it, but which requires individual actors in order to be actualized and reproduced as reality once again.

(Butler, 1990, p. 272)

Thus, the “scripts” or norms of our cultural context constrain our performances and use us to maintain their power. It is by our acting out a “script” that the script lives on. Butler (2011, p. xxi) explains that “Performativity is thus not a singular ‘act,’ for it is always a reiteration of a norm or set of norms, and to the extent that it acquires an act-like status in the present, it conceals or dissimulates the conventions of which it is a repetition.” Performativity, then, not only reifies the cultural codes in which we live, but also obscures these codes behind a façade of individual action or choice. The play we are performing may seem and feel original, because we are unconscious of the codes to which we are responding.

As in the construction of gender as a performative act, in which individuals enact (or reject) the cultural codes prescribed to them, Butler sees the formation of all aspects of self or subject in the same way. They explain that “in the first instance, a subject only becomes discrete through excluding other possible subject formations, a host of ‘not-me’s’” (Butler, 2008, p. 141). The subject is then formed by defining itself in contrast to others – choosing which “scripts” to perform and which to reject. By creating and performing these identifications and disidentifications, subjects define themselves, their gender, their race, and so on. In this process, “subject-positions are produced in and through a logic of repudiation and abjection, the specificity of identity is purchased through the loss and degradation of connection” (Butler, 2011, p. 114). The creation of identity is thus performed by the continued navigation of possible scripts.

Law is a uniquely powerful source of such scripts and norms. Unlike with most texts we encounter, legal interpretation, in Robert Cover’s (1986, p. 1601) famous words, “takes place in a field of pain and death.” It is this power of law over human lives that most concerns Butler. In Elena Loizidou’s interpretation of Butler’s views on law, she writes: “[W]hen the law and norms become one, or at least are presented as one … then the possibility for survival as humans becomes delimited. A very small space for resistance remains” (Loizidou, 2007, p. 125). It is here in the human experience that Butler engages with the law. They write: “I am not interested in the rule of law per se, however, but rather in the place of law in the articulation of an international conception of rights and obligations that limit and condition claims of state sovereignty” (Butler, 2004, p. 98). This exploration of legal and state power and its limitation (or lack thereof) comprises much of Butler’s work in recent decades.

Butler’s work illuminates the broader function of discourse in determining the public’s reaction to and interpretation of violence enacted by the state. In Frames of War: When Is Life Grievable?, Butler (2008) decries the suspension of habeas corpus and the many humanitarian abuses at Guantanamo Bay and other detention sites. Here, Butler helps us better understand how attitudes about war and the people involved are shaped rhetorically by the state. Frames of War focuses on the counterterrorism policies of the United States post-9/11 and provides insight into how the idea of war functions rhetorically to gain public support. Generally, Butler uses frames to describe the social, cultural, and political norms that color our perspectives. It is the frame of war that leads us to interpret an act of violence in a state-sanctioned military action differently from how we might interpret or define the same act in another context – say two soldiers shooting at one another in battle versus two civilians shooting at one another in a personal conflict. We understand these two actions in different ways, use different terms to describe them, and apply different moral codes to evaluate them. The former, one might call battle, an act of patriotic duty; the latter, one might call murder, an act of evil criminality. Butler argues that “the frame works both to preclude certain kinds of questions, certain kinds of historical inquiries, and to function as a moral justification for retaliation” (Butler, 2008, p. 4). In essence, imposing the frame of war alters the moral and ethical rules by which we judge an event, policy, or action.

In a related work, Precarious Life: The Powers of Mourning and Violence, Butler (2004) focuses on the mechanism by which social hierarchies and divisions are established and maintained. One such mechanism, crucial to the frame of war, is the theory of precarious life. Butler (2008, p. 15) defines precariousness as the awareness of the fragility and value of life: “Precisely because a living being may die, it is necessary to care for that being so that it may live. Only under conditions in which the loss would matter does the value of the life appear.” All humans die, yet not all human lives are viewed as precarious or protected from that precarity. Lives that the cultural, social, and legal structures seek to protect from precarity are those considered grievable. Butler explains that the “apprehension of grievability precedes and makes possible the apprehension of precarious life. Grievability precedes and makes possible the apprehension of the living being as living, exposed to non-life from the start” (Butler, 2008, p. 15). So, a life is only truly considered a life if its death would be grieved. The mosquito you reflexively squash when it bites you is not considered (by most people) a grievable life. Yes, we recognize that it was alive and is now dead, but that death is not grieved – it may even be celebrated, as the mosquito’s life may be a threat to the human. However, cultures do not equate grievability with humanity. Cultural scripts, including and especially those in the law, enshrine the grievability of some human lives while denying the grievability of others, deeming them threats to the grievable population.

The lines separating the precarious lives from those not valued are created by establishing boundaries of disidentification. One draws these lines by choosing to recognize certain people or groups and by disavowing others. Butler (2011, p. 114) explains that the “repeated repudiation by which the subject installs its boundary … is not a buried identification that is left behind in a forgotten past, but an identification that must be leveled and buried again and again, the compulsive repudiation by which the subject incessantly sustains his/her boundary.” If we apply this view of individual subjecthood to our national identity, we can see how identifications and disidentifications have been continuously performed. This need for “repeated repudiation” has driven the various American institutions that have upheld the norms of race and racism (slavery, segregation, mass incarceration) and “sustained” traditional “boundaries.” Thus, Butler can help us understand how, despite social and legal progress, the racist disidentifications central to many of our cultural norms persist. Each time one form of dehumanization and segregation loses its legal status, another rises to take its place and maintain the boundaries of precarious, grievable life.

It is this reestablishment of boundaries that we see rhetorically enacted in the ADAA. This law did not solve our drug problem, but it did reestablish black Americans as an ungrievable population. In the dehumanizing political discourse surrounding the War on Drugs and in the mass incarceration of poor black and minority Americans, the ADAA is a new performance of a familiar script. The ADAA may be considered a failure in curbing drug use and related crime, but it was a rhetorical success in shoring up racial boundaries in the late twentieth century. After the gains of the 1960s, the ADAA redrew lines that had begun to blur, creating a revised system of division and disidentification. Butler can help us better understand this reestablishment of the racist norms expressed in (and imposed by) the ADAA as a performative, rhetorical act of federal law that defines national identity.

11.3 The ADAA

Butler’s concern for legal matters is ultimately a concern for the human beings on which the law operates. In Loizidou’s (2007, p. 89) reading, Butler “is asking foremost about its [law’s] place in relation to the question of life. Can it, in other words, promote and sustain a mode of life that is livable and viable?” As a powerful expression of cultural norms, law plays a role in the formation of us as individual subjects and of our national identity. In this way, the law – and the norms it expresses – can indeed help us create “a mode of life that is livable” for everyone, or one that continues to be “livable and viable” only for select groups. The 1986 ADAA is a clear example of legislation that has made life “livable and viable” for only some segments of the population. Legislation that was supposed to target high-level offenders instead became one of the engines driving mass incarceration.

For most of the twentieth century, prison rates were largely stable, at about 110 prisoners per every 100,000 people. However, from 1975 to 2005, incarceration rates in the United States more than quadrupled (Raphael & Stoll, 2009a, p. 3). Such a drastic increase in imprisonment would seem to indicate a significant increase in crime, yet the opposite is true. Crime rates were actually much higher in the early twentieth century than in later decades. Increased rates of incarceration were tied not to crime but to policy. Indeed, in “all but one crime category, the policy variables accounted for nearly 90 percent of the increase in incarceration rates” (Weiman & Weiss, 2009, p. 74). The policy changes that resulted in this drastic increase in incarceration included harsher drug laws and severe restrictions on judicial discretion. These tougher policies did coincide with other shifts, such as “changes in illicit drug markets, the deinstitutionalization of the mentally ill, [and] the declining labor-market opportunities for low-skilled men” (Raphael & Stoll, 2009b, p. 28). However, though they are significant, “the collective influence of these factors is minor relative to the impact of changes in sentencing and corrections policy choices” (p. 28).

The transformation of drug laws began in New York in the 1970s with the imposition of the Rockefeller laws, which ushered in similar measures across the country. Though the War on Drugs has been supported by both sides of the aisle, the 1981–1989 Reagan administration prioritized stricter federal drug laws, resulting in “mandatory prison sentences of five years for drug possession of shockingly small amounts (for example, 5 grams of crack cocaine)” (Clear, 2007, p. 51). Drug possession and small-scale distribution had previously been relatively minor crimes. For example, the sale of one ounce of cocaine or heroin used to be a class C felony offense. During the 1980s, these crimes were upgraded to a class A-1 drug felony, which is on the same level as “homicide, first-degree kidnapping, and arson” (Weiman & Weiss, 2009, p. 86). Therefore, individuals convicted of previously minor drug offenses began to be sentenced to lengthy prison terms, and drug crimes were implicitly likened to violent offenses such as murder and arson.

The ADAA is the legal centerpiece of the War on Drugs at the federal level. Its infamously harsh and uneven mandatory minimums continue to reverberate today. Prior to the late 1980s, the maximum sentence for any drug possession charge was one year (Alexander, 2012, p. 54). In fact, the Comprehensive Drug Abuse Prevention and Control Act of 1970 repealed mandatory minimums for most drug crimes (United States Sentencing Commission [USSC], 2011, p. 22), but this was reversed by a series of state and federal legislative changes following the Rockefeller laws. The ADAA reached new extremes that greatly expanded the carceral state by increasing the number of prisoners as well as the length of their sentences via mandatory minimums. Just prior to the ADAA, in 1984, Congress passed the Sentencing Reform Act. It eliminated parole in the federal system and established the United States Sentencing Commission (USSC), which is tasked with developing sentencing guidelines to counter bias in judicial discretion (Osler & Bennett, 2014, p. 121). The ADAA was partially the result of the USSC’s work. The intent of implementing mandatory minimums was to erase judicial bias and sentencing discrepancies (p. 121). However, rather than avoid bias, the ADAA mandated it. A salient feature of this law is the extreme disparity; there is a 100:1 ratio of powder to crack cocaine in the amounts that trigger the same mandatory prison sentence. This disparity falls conspicuously along racial lines; most of those convicted of crack cocaine crimes were (and are) black. Black crack offenders made up 91.4 percent of all crack offenders in 1992 and 87.4 percent in 2000 (USSC, 2002, p. 62).

The harsh punishments in the ADAA were increased in the subsequent Anti-Drug Abuse Act of 1988, which created a five-year mandatory minimum for simple possession of crack (Osler & Bennett, 2014, p. 134). In addition to further expanding the quantity and length of prison sentences, the 1988 Act is also significant for establishing crack as the only substance for which simple possession triggers a mandatory sentence. These minimum sentences in the ADAA were legally mandatory until 2005. In the landmark case United States v. Booker, the Supreme Court altered the guidelines from mandatory to advisory. Legislative action, however, did not come until the Fair Sentencing Act of 2010, which changed the powder-to-crack ratio to 18:1 and got rid of minimum sentences for simple possession of crack – though it also created twelve new enhancements (Osler & Bennett, 2014, p. 158). Since 1994, there has also been a safety valve that can result in a lesser sentence if a first-time offender meets a list of criteria, but for the most part, the ADAA mandatory minimums decide the defendant’s fate, not the judge. This is especially true for crack defendants, who “are less likely to receive the benefit of the safety valve than any other drug type” (Bennett, 2014, p. 882).

The problems in the ADAA have not gone unnoticed. The law that was supposed to target high-level traffickers has instead imprisoned everyday crack users. In 2002, the USSC reported that 79 percent of federal crack cocaine offenders had not performed the trafficking functions “described in the legislative history of the 1986 Act” (USSC, 2002, p. vii). Furthermore, the racial divide has been widely criticized. In its 1995 report, the USSC recommended that Congress reconsider the 100:1 ratio, and in its reports to Congress in 1997, 2002, and 2007, it explicitly called for a revised 1:1 powder-to-crack ratio. While the USSC declared in 1997 that “there is no evidence of racial bias” and in 2002 that “this assertion [of racist motives] cannot be scientifically evaluated,” the racial bias in the mechanized law is all too apparent if one considers the demographics associated with the two forms of cocaine. The reasoning for the distinction between crack and powder cocaine was the perception (or misperception) about the drugs and the contexts in which they circulated. In their 1997 report to Congress, the USSC explained that “crack cocaine is more often associated with systemic crime – crime related to its marketing and distribution – particularly the type of violent street crime so often connected with gangs, guns, serious injury, and death” (USSC, 1997, p. 4). These “associations,” however, have proven to be incorrect when examined. In 2000 (during which the 100:1 ratio was still mandatory), only a quarter of federal crack offenders had any weapon and just 2.3 percent actually fired a weapon (USSC, 2002, p. vii).

In their discussion of the ADAA, legal scholar Mark Osler and retired federal judge Mark W. Bennett explain that at the center of these sentencing policies is “the myth that most of the Guidelines, including the drug guidelines, are based on empirical historical data, alleged special expertise of the Sentencing Commission, and the Sentencing Commission’s exercise of its characteristic institutional role – when in fact they are not” (Osler & Bennett, 2014, p. 156). Racist attitudes permeate the construction and reviews of the ADAA, as well as its implementation. On top of the imbalanced regulations, black defendants “were indicted and convicted at much higher rates than whites … and they were more likely to receive longer sentences” (Weiman & Weiss, 2009, p. 84). Even traffickers are sentenced differently: Street-level crack dealers receive sentences 300 times more severe than higher-level powder importers (Bennett, 2014, p. 894). As the USSC wrote in its 2002 report to Congress, the “overwhelming majority of offenders subject to the heightened crack cocaine penalties are black, about 85 percent in 2000” (USSC, 2002, p. viii). The years following the ADAA saw an immense spike in the incarceration of black men that continues today – all enabled by a simple, seemingly innocuous list of weights.

11.4 Frames of War

The 1986 ADAA was a key weapon in the War on Drugs. This concept of a “war” on drugs and the use of explicitly militaristic discourse in discussions of drug policy may now seem so normal to us as to go unnoticed, but this ubiquity makes it all the more worthy of our consideration. Butler’s discussion of the frame of war is therefore especially relevant to our analysis of the ADAA, as it became the cornerstone of the federal War on Drugs. The very term War tells us how to understand the issue – which frame to use. Other possible frames – such as “drug-related crimes” or “public health crisis” – would create a very different set of norms through which to interpret and evaluate the phenomenon itself as well at the state’s reaction.

In the case of the ADAA, President Reagan and other officials have used the frame of war to gain public support for their efforts to maintain normative disidentifications. However, this frame is not merely a convenient metaphor to inspire public support. The frame of war not only sells the ADAA, it ideologically produces the ADAA and other legal manifestations of racial division. In other words, the strategic frame of war functions not only in the campaign to gain support for the legislation – it functions also in the mindset that created the ADAA and laws like it. These laws are themselves rhetorical tools for communicating ideologically and materially with the American people. The ideological motivation becomes clearer when we consider that the War on Drugs – presented as a response to a crisis – actually predates (and, some argue, created) that crisis. The notion of a “War on Drugs” began during the Nixon administration but hit its stride during Reagan’s presidency. Curiously, as Michelle Alexander explains, the timeline demonstrates that “President Ronald Reagan officially announced the current drug war in 1982, before crack became an issue in the media or a crisis in poor black neighborhoods … The Reagan administration hired staff to publicize the emergence of crack cocaine in 1985 as part of a strategic effort to build public and legislative support for the war” (Alexander, 2012, p. 5). The crack epidemic began in poor, urban neighborhoods after the announcement of the War on Drugs, which emphasizes the War itself as a strategic rhetorical move rather than a practical response.

We see Reagan deploying the frame of war in speeches given around the passing of the ADAA. On September 14, 1986, six weeks before the signing, President Reagan and Nancy Reagan addressed the nation from the White House. The speech proclaims the dire need for a “crusade against drugs.” Reagan declares that the “American people want their government to get tough and to go on the offensive. And that’s exactly what we intend, with more ferocity than ever before” (Reagan, 1986, para. 4). Here we see the militaristic diction expanding beyond the title of the war to describe going “on the offensive” with “ferocity.” Even moments that suggest another possible frame are quickly pulled back into war. Reagan says, “Today there’s a new epidemic: smokable cocaine, otherwise known as crack” (para. 6). Here, “epidemic” seems to gesture toward a public health frame, but he immediately returns to the military language by following with “It is an explosively destructive and often lethal substance which is crushing its users. It is an uncontrolled fire” (para. 6). The likening of crack to explosives here positions the drug itself as a weapon of war. If crack is a “crushing,” “lethal” weapon that has been deployed on American soil, a War on Drugs is the only possible recourse.

The frame of war is reinforced by the comparison of the War on Drugs to other conflicts in US history. In the 1986 address delivered with Nancy, Reagan explicitly links the War on Drugs to World War II and the Civil War. In calling for support, he says, “My generation will remember how America swung into action when we were attacked in World War II. … Well, now we’re in another war for our freedom, and it’s time for all of us to pull together again” (Reagan, 1986, para. 20). Later on, he comments that he’s just down the hall from the Lincoln Bedroom, which Lincoln used as his office during the Civil War. He muses, “Memory fills that room, and more than anything that memory drives us to see vividly what President Lincoln sought to save” (para. 28). Here, crack is figured not as an “epidemic” but as an enemy force. Crack is Nazi Germany or civil war, and we all must band together to support the state’s efforts toward victory.

If crack is an “explosive” deployed by the enemy, the ADAA is the defensive wall thrown up against it. The frame of war manifested quite literally in earlier versions of the bills that became the ADAA. The first version that passed in the House included “a death penalty provision, which would have applied to major drug dealers who committed murder” and “required deploying the military to stop drug smuggling at the borders” (Greenhouse, 1986, p. 1). These controversial elements were eliminated to secure Senate approval. Yet, even though these measures are not in the ADAA, we can see here how war is far more than convenient metaphor. The War on Drugs is imagined as an actual war, calling for military deployment and the killing of its enemies. Though these measures did not become part of the law, the majority of the House of Representatives supported them. In this frame of war, drugs (crack in particular) take on a level of danger that is beyond the risks to health and safety presented by any number of substances. In Butler’s discussion of the suspension of rights for detainees in Guantanamo, they explain that “what counts as ‘dangerous’ is what is deemed dangerous by the state” (Butler, 2004, p. 76). This declaration of danger is what the state uses, in the case of the War on Terror, “for its own preemption and usurpation of the law” (p. 76). In the War on Drugs, the state is not suspending or transgressing the law, but using danger to create the law.

When seen through this frame of war, mandatory minimums are a necessary defensive strategy. Mandatory sentences have existed in the United States since its beginnings as a nation. However, they were formerly reserved for the most extreme crimes. The 1790 Crimes Act listed twenty-three such federal crimes, including “treason, murder, three offenses relating to piracy, forgery of a public security of the United States, and the rescue of a person convicted of a capital crime” (USSC, 2011, p. 7). Throughout their history, mandatory minimums have applied to crimes related to the conflicts of that period. During the Civil War, for example, mandatory minimums against Confederate allies were enacted – and it is worth noting that the minimum penalty for colluding with Confederates was only six months in prison, far shorter than minimum penalties for possessing 5 grams of crack under the ADAA (USSC, 2011, p. 13). Perhaps more important to observe is the implication of adding drug crimes to a list that formerly consisted of treasonous offenses; even low-level drug offenders are put on par with traitors and spies. The mandatory minimums solidify the War on Drugs as a true war.

The discursive efforts in the law and the speeches backing it were successful in gaining public support for the War on Drugs. Crime became a key concern for voters. As political scientist Marie Gottschalk notes, in polls during the mid-1990s, the public listed crime as a high concern, despite the fact that actual crime rates had dropped significantly (Gottschalk, 2006, p. 27). Politically popular “tough on crime” policies led politicians from both parties to support these measures, regardless of actual crime rates. This disconnect between crime rates and incarceration rates resulted in public misperception of the reality of crime that dramatically impacted policy: More prisoners implied more crime and justified harsher laws – leading to more prisoners.

Some scholars argue that such misperceptions were intentionally constructed, and some evidence suggests that the Nixon administration, whose second campaign heralded the “tough on crime” refrain that continues today (Clear, 2007, p. 50), intentionally used drug legislation to target minority communities. In a 2016 article for CNN, Tom LoBianco writes about a twenty-two-year-old interview with previously unreleased quotations from John Erlichman. Erlichman, who worked on domestic policy for the Nixon administration, stated: “We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin. And then criminalizing both heavily, we could disrupt those communities” (LoBianco, 2016, para. 3). Though some contest this account, it is significant to see an insider so blatantly describe the use of drug policy as a means of social control.

The War on Drugs, foremost among so-called tough on crime efforts, was successful in maintaining this social control – provoking fear of crack users, as well as acceptance of the state’s policies and practices. Even around the time the ADAA was on the floor, news coverage largely focused on the debate over the inclusion of death penalty measures and the political maneuvering to get the bill through the Senate. New York Times headlines covering the ADAA in the fall of 1986 state: “Issue of Financing the Key Obstacle for Antidrug Plan” (Roberts, 1986, p. A1) and “Congress Approves Anti-Drug Bill As Senate Bars a Death Provision” (Greenhouse, 1986, p. 1). The glaring disparity between two forms of the same substance was not spotlighted, nor were there accusations of racism. This lack of attention is perhaps a testament to the strength of the frame of war. As Gottschalk (2006, p. 19) explains, “the carceral state has been a largely invisible feature of American political development, not a contested site of American politics.” I argue that it has not been a “contested site” because the frame of war has persuaded many to see incarcerated persons as the enemy. As cited above, Butler’s frame of war “works both to preclude certain kinds of questions, certain kinds of historical inquiries, and to function as a moral justification for retaliation” (Butler, 2004, p. 4). We accept, and even welcome, things in the context of war that would be unimaginable in any other frame. The wartime rhetoric persuaded the American public to accept and support the ADAA and similar measures as necessary in combat. Butler’s frame of war elucidates both the strategies used to garner support for the ADAA and how the ADAA is itself a rhetorical strategy seeking to persuade the American public how we ought to view drugs – and drug users.

11.5 Precarious Life

Using the frame of war has an important consequence that is crucial in understanding the ADAA and its rhetorical function. If the War on Drugs is indeed a war, then there must be an enemy. And that enemy is the drug user – especially the crack user. Alexander (2012, p. 105) explains that “although explicitly racial political appeals remained rare,” in public discourse “the calls for ‘war’ at a time when the media was saturated with images of black drug crime left little doubt about who the enemy was in the War on Drugs and exactly what he looked like.” The fear of drugs became an easy proxy for embedded cultural fears of racial minorities and black Americans in particular.

Here, Butler’s concepts of grievability and precarious life can illuminate the state’s rhetorical strategies. The question Butler poses is this: Which human lives are precarious? For not all are considered grievable according to cultural norms. To return to the frame of war, enemies in wartime are not grievable life. The fallen enemies are viewed not as precarious, grievable life but as a threat to such life. Thus, the frame of war divides “populations into those who are grievable and those who are not” (Butler, 2008, p. 38).

To kill an enemy while maintaining legal and moral authority, the state must transform the enemy into “ungrievable life.” The War on Drugs, therefore, insists that drug users (especially black crack users) are ungrievable. This frame then reinforces the racist hierarchy. The black crack user is not merely an evil or enemy subject; they are not a human subject at all. The ADAA and the discourse of the War on Drugs draw clear boundaries between grievable and ungrievable lives to uphold the racist status quo that had been threatened by the progress of the mid-twentieth century.

These questions of who “matters” ring familiar to those of us in the age of the Black Lives Matter movement. In a New York Times blog with George Yancy, Butler speaks directly to this issue:

If black lives do not matter, then they are not really regarded as lives, since a life is supposed to matter. So what we see is that some lives matter more than others, that some lives matter so much that they need to be protected at all costs, and that other lives matter less, or not at all. And when that becomes the situation, then the lives that do not matter so much, or do not matter at all, can be killed or lost, can be exposed to conditions of destitution, and there is no concern, or even worse, that is regarded as the way it is supposed to be.

(Yancy & Butler, 2015, para. 2)

The last line here can help us understand the way in which racist policies tap into notions of grievable and ungrievable life. The ADAA can protect the majority (white) population from the enemy (black) crack user; therefore it is a moral and ethical tool according to our cultural norms and in the frame of war – it’s “the way it is supposed to be.”

The ADAA and the warlike discourse surrounding it draw clear lines between grievable and ungrievable life. In his remarks upon signing the ADAA into law, Reagan professes his concern and compassion for the drug user:

We must be intolerant of drugs not because we want to punish drug users, but because we care about them and want to help them. This legislation is not intended as a means of filling our jails with drug users. What we must do as a society is identify those who use drugs, reach out to them, help them quit, and give them the support they need to live right.

(Reagan, 1986, para. 2)

This statement of concern and assurance that the goal is to offer “help” and “support” rather than “filling our jails with drug users” is belied by the fact that the latter is precisely what the ADAA did. As a result of the ADAA and similar policy changes at the state level, the incarceration rate skyrocketed as prisons became overpopulated with nonviolent drug offenders. The number of people imprisoned for drug crimes in 2001 was ten times greater than it was in 1980 (Clear, 2007, p. 54). Put another way, in 1980, drug offenders made up 9 percent of all inmates; by 1988, they comprised 25.4 percent of the total prison population and 37 percent of new prisoners (Weiman & Weiss, 2009, p. 89). Even recently, in 2019, people incarcerated for drug offenses made up 46 percent of the total incarcerated population (both state and federal) (The Sentencing Project, 2021, p. 9) and at the time of writing, 45.2 percent of people in federal prisons were incarcerated for drug offenses (Federal Bureau of Prisons, 2022, Chart 1). Despite Reagan’s assurances, the United States has indeed been “filling our jails with drug users” for decades.

Furthermore, Reagan’s assurance of sympathy for the drug user is at odds with the vilification in the rest of his remarks. He states: “I ask each American to be strong in your intolerance of illegal drug use and firm in your commitment to a drug-free America. United, together, we can see to it that there’s no sanctuary for the drug criminals who are pilfering human dignity and pandering despair” (Reagan, 1986, para. 5). The idea that drug criminals are “pilfering human dignity” implies that they are outside of this category of human – that they are a group apart. This image of criminals taking advantage of the “despair” of others implies that Reagan is directing his anger exclusively toward drug dealers – as the ADAA indeed promised to do. However, despite his claims that this new policy is aimed at high-level dealers, he makes no such distinction in stating, “Drug abuse is a repudiation of everything America is” (Reagan & Reagan, 1986, para. 23). Here, drug use itself – and by implication the drug user – is un-American. There is a “repudiation” here of the drug user (not only the dealer) as fundamentally not us, not American, and not a valued human person. Particularly in the late Cold War context during which these remarks were made, to be un-American was to be a wartime enemy – and a wartime enemy is not a grievable life.

Two years after the ADAA was passed, in a radio address on economic growth and the War on Drugs (perhaps a telling juxtaposition), Reagan uses even stronger dehumanizing language. Reagan (1988, para. 4) avows that “we will no longer tolerate those who sell drugs and those who buy drugs. All Americans of good will are determined to stamp out those parasites who survive and even prosper by feeding off the energy and vitality and humanity of others.” Here, not only drug sellers but also users are “parasites” who are “feeding off” of “humanity.” Quite explicitly, drug users are not human; furthermore, they are a danger to and enemy of humanity. In this way, drug users are crafted into what Butler (2008, p. 31) describes as “populations [that] are ‘lose-able’ … cast as threats to human life as we know it rather than as living populations in need of protection.” The ADAA itself may be less colorful in its language but is just as clear in establishing who this enemy, this “threat to human life,” is. The drug user, yes, but the most dangerous enemy is specifically the crack user. The ADAA’s most infamous provisions, the wildly disparate mandatory minimums for crack and powder cocaine, are stated thus:

1. 1. (A) In the case of a violation of subsection (a) of this section involving – …

      1. (ii) 5 kilograms or more of a mixture or substance containing a detectable amount of –

         1. (I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed …

      2. (iii) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base …

      such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life. (ADAA, 1986, p. 2)

The subsequent section is identical, except for the amounts: 500 grams of cocaine or 5 grams of cocaine base results in a prison sentence not less than five years (p. 3). The ADAA states that “such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life” (p. 2). The enemy, or “such person,” is defined primarily by the quantities and substances listed in the ADAA. Racial categories are, of course, absent from these descriptions. Yet we see how the drug user is framed as already violent, since the added penalty for “death or serious bodily injury” simply doubles the penalty attached to the substance alone. Imposing the severest penalties on crack users implies that they are the worst on the list, and the American public in 1986 and today knows who the implied crack user is.

These perceptions of crack as more dangerous and its trade more violent than its more expensive counterpart do not come from empirical data. Instead, they are directly indicative of racist attitudes toward the users of crack cocaine. Due to cost differences and relative availability, crack cocaine has been used more often by poor minorities, whereas powder cocaine has more often been used by wealthier whites (Alexander, 2012, p. 53). As this was the case prior to the ADAA, it is doubtful that Congress members could have been unaware of the demographic implications of their legislation. Therefore, the logical conclusion, as Clear (2007, p. 55) states, is that “the rules regarding drug-law enforcement were gerrymandered to show an even greater bias against poor minorities.” This is one of the many patterns of bias within the legal system, which Yancy and Butler (2015, para. 24) argue “is engaged in reproducing whiteness when it decides that the black person can and will be punished more severely than the white person who commits the same infraction.” A law that effectively allowed white drug offenders to have 100 times more of the same substance as black offenders to earn the same punishment draws a clear boundary between the lives that are precarious and grievable and those that are not.

As we consider the ADAA, we can see how it is this division, and not the purported efforts to target high-level players in the drug trade, that is its function. The ADAA does not allow consideration for one’s role in the drug trade but is based entirely on weight. Osler and Bennett (2014, p. 164) describe these mandatory minimums as “a foolishness based on a lie, that lie being that the weight of narcotics at issue serves as a valid proxy for the relative culpability of a defendant.” Foolishness indeed, if the goal is to dismantle the drug trade from the top. If, as Reagan says, the “legislation is not intended as a means of filling our jails with drug users,” it was a colossal failure. However, if the goal is to maintain a white supremacist status quo, then the ADAA has been a rousing success. Black crack users are rhetorically constructed as the enemies in a War on that is excusing the state’s policies. The ungrievable lives of “enemy” black drug users file into the prison system, maintaining the normative racial hierarchy that the ADAA reproduces.

11.6 Reproducing Norms

Thus, the ADAA is another script that defines who is cast as an American citizen and who is left off the list. It is yet another rhetorical mechanism for delineating grievability along color lines. As Butler (2008, p. 24) explains, “Forms of racism instituted and active at the level of perception tend to produce iconic versions of populations who are eminently grievable, and others whose loss is no loss, and who remain ungrievable.” Crowding the prison system with black drug users is “no loss” but instead necessary in the “war” to protect the grievable population. Sociologist Loïc Wacquant similarly argues that mass incarceration and other oppressive institutions are “instruments for the conjoint extraction of labor and social ostracization of an outcast group deemed unassimilable” (Wacquant, 2000, p. 379). The boom in imprisonment that began in the 1970s and hit its stride in the 1980s has overwhelmingly affected young black men from disadvantaged urban areas who have been targeted by the legal actions that created mass incarceration. Other racial minority groups and the urban poor more generally have also been impacted. Even with the subsequent changes to the ADAA, and the overall decrease in incarceration rates since they reached a peak in 2009, these disparities continue. The Bureau of Justice Statistics reports that 1,182,166 people were sentenced (in state or federal courts) to a prison term of more than one year in 2020. Of this group, 389,500 (30 percent) were black, 275,300 (23 percent) were Hispanic, and 358,900 (30 percent) were white (Carson, 2021, p. 10). We can better understand the significance of these ratios by comparing them to the United States as a whole. The 2020 US Census found that those identifying as black or African American (alone or in combination with other racial identities) make up 14.2 percent of the total population (Jones et al., 2021). Put another way, the imprisonment rates in the year 2020 were 223 per 100,000 white Americans and 1,234 per 100,000 black Americans (Carson, 2021, p. 14).

As Alexander (2012) and many other scholars have discussed, mass incarceration is yet another policy in a long line of efforts to maintain white supremacy in the United States. Slavery, segregation, and incarceration have all been efforts to deny the precarity of black American lives. Alexander concludes that “what has changed since the collapse of Jim Crow has less to do with the basic structure of our society than with the language we use to justify it. … Rather than rely on race, we use our criminal justice systems to label people of color ‘criminals’ and then engage in all the practices we supposedly left behind” (Alexander, 2012, p. 2). They are performances of the same script of racial hierarchy, seeking to define American identity by disidentifying from black Americans. In their explanation of frames of war, Butler (2008, p. 24) explains that all “frames are subject to an iterable structure – they can only circulate by virtue of their reproducibility, and that very reproducibility introduces a structural risk for the identity of the frame itself. The frame breaks with itself in order to reproduce itself, and its reproduction becomes the site where a politically consequential break is possible.” Each norm that has been “broken” (slavery, segregation) has opened up a “politically consequential” moment, an opportunity to create new norms and frames. As Wacquant (2000, p. 384) observes, “by the end of the 1970s, then, as the racial and class backlash against the democratic advances won by the social movements of the preceding decade got into full swing, the prison abruptly returned to the forefront of American society and offered itself as the universal and simplex solution to all manners of social problems.” Mass incarceration resulting from the War on Drugs, in that it targets primarily nonviolent offenders, functions not to preserve public safety, but to remove huge percentages of black and other minority populations from free society. This removal reinforces norms of precarious life and the racist boundaries between those lives that are grievable and those that are not. Therefore, mass incarceration of black and other minority Americans following the ADAA and similar legislation is itself rhetorical. The incarceration and subsequent absence of those people from American families, neighborhoods, and towns or cities rhetorically shapes the nation and who comprises it.

11.7 Challenging Norms

Through the example of the ADAA and the surrounding discourse of the War on Drugs, we have seen how Butler’s concepts of frames of war and precarious life enable us to interpret the law and its role in reproducing cultural norms and boundaries. The frame of war denies the precariousness of black lives as the state works to shape our views of one another. However, Butler (2008, p. 5) also argues that “what we are able to apprehend is surely facilitated by norms of recognition, but it would be a mistake to say that we are utterly limited by existing norms of recognition when we apprehend a life.” We are deeply affected by the norms surrounding us, but we are not wholly determined by them. We can choose to challenge, adapt, or reject these norms. Indeed, this resistance is key to the formation of one’s self and one’s agency. The norms of racism supported by the ADAA seem insurmountable, because they have been so entrenched in our cultural, political, and social experiences. In their discussion of sex, Butler (2011, p. xix) explains that

As a sedimented effect of a reiterative or ritual practice, sex acquires a naturalized effect, and, yet, it is also by virtue of this reiteration that gaps and fissures are opened up as the constitutive instabilities in such constructions, as that which escapes or exceeds the norm, as that which cannot be wholly defined or fixed by the repetitive labor of that norm.

Other identity categories and cultural concepts, like race, have become similarly “sedimented.” What now appears to be solid stone is in fact the compressed layers of “ritual practice” performed over and over. Yet this sediment is not as stable as it may appear. As with the frame of war, these norms must be “reiterated” again and again, but these reiterations open “gaps and fissures” – opportunities for us to question these norms.

In this, I believe that Butler’s work is not only useful in social and legal critique, but also in developing a productive, critical optimism. They tell us that “the problem is not merely how to include more people within existing norms, but to consider how existing norms allocate recognition differentially. What new norms are possible, and how are they wrought?” (Butler, 2008, p. 6). If norms – including those enforced by law – are ultimately shaped by our own performative acts, then these norms are rhetorically constructed. This recognition is always an empowering one, as anything we have created through discourse can thus be amended, altered, or overturned by discourse. Despite their criticism of law, Butler also sees law’s discursive possibilities. Loizidou (2007, p. 125) explains that “law … becomes for Butler the only vehicle for resistance and, specifically through the practice of the trial, the only force for dissent.” Though I don’t see law as the only such vehicle, it is an undeniably powerful and far-reaching mechanism. Laws like the ADAA play a powerful role in shaping norms and performances as well as materially impacting our lives.

Just as Butler’s ideas can help us interpret our legal history, they can also shed light on our current moment. In the last few years, restrictions on voting rights, which once seemed like a pre-Civil Rights artifact, have made a significant resurgence. Butler can aid us in seeing this resurgence as yet another performance of the script of white supremacy and to understand these moves as ultimately rhetorical rather than a response to a practical problem. According to researchers with the Brennan Center for Justice at NYU School of Law, nearly 400 restrictive voting bills were introduced in legislatures across the United States in 2021 and early 2022. In an extensive study, they found that, while the majority of these bills are Republican-sponsored, not every Republican-controlled state has seen the introduction of restrictive voting laws; instead, restrictive voting laws are “most prevalent in states where they [Republicans] have control and where there are significant non-white populations.” Legislators who introduce such bills are “concentrated in the whitest parts of the most diverse states” (Morris, 2022, para. 32). In addition to this demographic analysis, the Brennan Center included data from the 2020 Cooperative Election Study, which found that these areas in which the restrictive voting bills were concentrated also had high racial resentment scores (Morris, 2022).

If we examine these recent legal trends through the lenses of precarious life and grievability, a familiar picture emerges. Much like the ADAA, these laws do not explicitly announce a racist agenda. Instead, they emphasize the need for measures to curb election fraud – despite the absence of evidence that such fraud is an actual problem. This absence calls into question the purpose of these bills and demonstrates how they are ultimately rhetorical tools rather than practical solutions. Instead of solving a fraud problem, these bills would disproportionally limit black and brown Americans’ ability to vote. Measures such as requiring ID, limiting voting hours, and limiting or eliminating early and mail-in voting all have a greater effect on voters of color than on white voters (Brennan Center for Justice, 2022). Just as the ADAA has done, these bills make a clear argument of division and disidentification. They tell us whose voices should be included in our democracy and whose voices should be silenced yet again – whose lives are precarious and whose are ungrievable.

While the very existence of such bigoted legislation is disheartening, Butler enables us to understand legal and cultural norms as sedimented practices, rather than the bedrock they seem to be. The idea of unstable ground can be unsettling, but instability also signals possibility. If law can reinscribe the norms that create division and limit the scope of grievable life, it can also challenge those norms and reshape a broad and inclusive view of precarious life. Butler’s work, then, can provide tools for analyzing our legal past and imagining our legal future.

12 Ensnared by Custom Mary Astell and the American Bar Association on Female Autonomy

Judy M. Cornett ^*

12.1 Introduction

Is it possible for women to thrive in a man’s world? Do we even want women to thrive in a man’s world? If we think that women should be able to thrive in a man’s world, and if they aren’t doing so, what should be done about it?

These are the questions addressed by two very different authors separated by almost four centuries. And although the two authors agree that women should be able to thrive in a man’s world but aren’t doing so, they use very different rhetorical strategies to reach very different conclusions about what should be done to remedy the problem. Ironically, the early feminist who wrote during the seventeenth century – when women could not vote, hold public office, or practice any of the learned professions – writes with greater confidence and authority than the twenty-first-century women who have risen to the top echelon of the legal profession. And the solution proposed by the early feminist relies on the empowerment of women, while the modern women lawyers appeal solely to the good graces of men to solve the problem of women’s failure to thrive as large-firm lawyers.

Mary Astell, one of the earliest English feminists, examined the issue of women’s intellectual and educational subordination in 1694 in A Serious Proposal to the Ladies (1970). She believed that women were not living up to their intellectual potential and were relegated to the realm of trivia and frivolity by the social norms of the period. In 2019, the American Bar Association (ABA) published a report entitled Walking Out the Door: The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice (the ABA Report) (Liebenberg & Scharf, 2019). Focusing on America’s 500 largest law firms,¹ the report found that women with more than fifteen years’ experience are leaving law firms in droves. Like Astell, the report attributed this failure to thrive to male-created cultural norms.

As Christine Mason Sutherland (2005) points out in The Eloquence of Mary Astell, one of Astell’s signal accomplishments was her move from sermo, private conversational discourse, to contentio, the discourse of public debate. This move marked a significant moment in the history of feminist discourse, since women lacked the traditional platforms of public debate: politics, the church, and the academy. Astell’s confidence in making the move from sermo to contentio resulted from a number of factors, including her own education, her successful dialogue with John Norris, and the Cartesian philosophy that liberated women’s intellect from the perceived weaknesses of their bodies. Astell’s transition from sermo to contentio can be seen in her sure-footed identification of her audience, her deft employment of metaphor and rhetorical questions, and her direct address to her critics. Unfortunately, these same characteristics are missing from the ABA Report. In addition to the report’s challenges with ethos, it vacillates uneasily between sermo and contentio. By using Astell’s rhetorical sophistication as a lens, we can view the rhetoric of the report more clearly, assessing its success or failure as a rhetorical document.

12.2 Background: A Seventeenth-Century Feminist and Twenty-First-Century Lawyers

Mary Astell (1666–1731) was a British philosopher, author, and early feminist whose influential² works challenged prevailing notions of a woman’s intellectual ability while promoting her conservative Anglican values (Sutherland, 2005). Born in Newcastle upon Tyne, she moved to London in 1684, where she gained the patronage and companionship of several aristocratic women, including Lady Catherine Jones, Lady Mary Chudleigh, Lady Elizabeth Hastings, and Lady Ann Coventry (Perry, 1986, pp. 39–40, 68; Sowaal, 2023). Her first major work, and her most influential, A Serious Proposal to the Ladies, was published in 1694, with a second part published in 1697. In A Serious Proposal, Astell argues that women are the intellectual equals of men but have been debarred from exercising their intellects by social custom, which denied women an education equal to men’s. This lack of education initiated a vicious circle, argues Astell: Because they are uneducated, they appear to be shallow and frivolous, lending support to the argument that they lacked the intellect necessary for a rigorous education. Because of the rhetorical sophistication of her works and her explicit attention to rhetoric, Astell has been recovered by contemporary scholars as an important rhetorical theorist.

To remedy this lack of education, Astell proposed the establishment of an “academical monastery,” the equivalent of an all-female college, a plan which she elaborated in the second part of A Serious Proposal. These works went through several editions into the early eighteenth century and, together with her second major work, Some Reflections upon Marriage (1700), influenced later feminists such as Lady Mary Wortley Montagu (Perry, 1986, pp. 108–109). Astell was a devout Anglican, and her works reflect her conventionally Christian worldview, but she drew upon medieval spiritual concepts that extol the equality of the soul despite the inequality of the sexes and the Cartesian idea that a formal education is not necessary to engage in philosophy (Sutherland, 2005, pp. 11, 27–28). A Serious Proposal reflected a commitment to the conversational theory of rhetoric (Sutherland, 2005, p. 53), and among the subjects to be taught at the academy was rhetoric.

The American Bar Association is a voluntary association of attorneys founded in 1878 in Saratoga Springs, New York. Consistent with the composition of the legal profession at the time of its founding, the ABA was originally made up exclusively of white men. Only in 1950 did the ABA gain its first African American member. The first woman became an ABA member in 1918. Despite its deeply conservative roots, the ABA sponsors some progressive initiatives, such as the Special Committee on Legal Aid Work, founded in 1920. A half-century later, in 1974, the ABA supported legislation creating the federal Legal Services Corporation, designed to provide legal services to indigent clients in civil cases. According to the ABA, in 2022, there were 1,327,010 lawyers in the United States; of this number, 242,500, or approximately 18 percent, were members of the ABA (D. Lopez, personal communication, January 20, 2022)

Walking Out the Door: The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice is the first report published as part of the Achieving Long-Term Careers for Women in Law initiative from the American Bar Association. This initiative is designed to study and understand the high attrition rate of female lawyers from large law firms. Former ABA president Hilarie Bass described this project as her greatest priority as president and commissioned this four-pronged research initiative to identify issues and provide solutions for firms (Liebenberg & Scharf, 2019, p. iii). The ABA used data collected by ALM Media regarding female attorneys’ partnership status and longevity in the nation’s 500 largest law firms as its metrics for success (p. iii). As of 2022, the ABA had published three reports (American Bar Association, n.d.-a). Following the first report, which discusses female representation and attrition broadly, the second report focuses on the experiences of women of color as represented by focus groups sponsored by the ABA. The third report reflects qualitative research, collecting the results of 12 focus groups and 12 individual interviews with 116 experienced female lawyers of all races practicing in a variety of settings in six large cities. The ABA made a concerted effort to market these reports on the internet with content branded with the tag “#WhyWomenLeave” and videos expressing concern that women are “leaving the profession” (American Bar Association, n.d.-b).

The solution, according to the ABA Report, is for the predominantly male power structure at firms to, first, use gendered data collection to measure key factors relating to promotion and, then, overhaul the training and best practices of the firm to make them more conducive to retaining female attorneys (Liebenberg & Scharf, 2019). The ABA Report appeals to the existing hierarchy and provides recommendations for working within it to advocate for cultural change in the individual firms.

12.3 Rhetorical Situation

12.3.1 The Paradox of Ethos

Both Mary Astell and the authors of the ABA Report³ are engaged in a persuasive endeavor. They both describe a problem, diagnose the problem, and offer a solution to the problem. Astell wanted to persuade her audience that women are intellectually equal to men and that they should be afforded an equal education. She also wanted to persuade her readers that the best way of providing that education was through a female-only institution where women could separate themselves from the world and concentrate on reading and study. The ABA Report wants to persuade those with power in large American law firms that women are failing to become equity partners in those firms because of gender-based issues. The report also wants to persuade its readers to implement gender-conscious policies and practices in order to retain the women lawyers they hire.

Any author engaged in persuasion must rely on ethos, that is, “[t]he speaker or writer must be seen to have authority to speak upon this particular subject to this particular audience” (Sutherland, 2005, p. 4). The author’s authority can derive from the power of the text itself – “intrinsic ethos” – or it can derive from the author’s “already-established reputation” – “extrinsic ethos” (p. 4). The author’s ethos engenders trust in their audience. A persuasive endeavor may founder if the author’s ethos is insufficient to gain and maintain the reader’s trust. Thus, it is imperative for an author to establish a stable ethos; a reader’s uncertainty about the author’s ethos raises doubts about the strength of the author’s argument. Ironically, because Astell explicitly theorizes and deploys ethos in A Serious Proposal, it is the seventeenth-century feminist, not the twenty-first century authors of the ABA Report, who gains and keeps the reader’s trust.

At first blush, it would seem that the ABA Report, backed by the authority of the nation’s largest voluntary bar association and its immediate past president, Hilarie Bass,⁴ would have no trouble establishing and maintaining extrinsic ethos. However, the report displays anxiety about its authority. First, its title page credits two individual authors, Roberta D. Liebenberg and Stephanie A. Scharf. But the title page also bears the imprint of three organizations: ALM Intelligence Legal Compass,⁵ ABA Presidential Initiative on Achieving Long-Term Careers for Women in Law,⁶ and the American Bar Association. A disclaimer on the title page warns: “The views expressed herein represent the opinions of the authors. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities.”⁷ Similarly, on the copyright page, the reader is warned: “The materials contained herein represent the opinions of the authors and should not be construed to be the views or opinions of the law firms or companies whom such persons are in partnership with, associated with, or employed by, nor of the American Bar Association or the Commission on Women in the Profession unless adopted pursuant to the bylaws of the Association.” Interestingly, a Google search for “Walking out the Door” brings up the text of the report as the fourth result, with the caption, “Walking out the Door – American Bar Association,”⁸ and the text is on the ABA’s website (American Bar Association, n.d.-a). The report is copyrighted by the American Bar Association.

This authorship and ownership issue is damaging for building extrinsic ethos for the report. In an attempt to invoke the credibility of the national organizations and initiatives that support the work, the report undermines its own ethos by mentioning that those same organizations do not unquestionably endorse their research and conclusions. The intrinsic ethos that the authors stood to gain from their research and reporting is blunted by the disclaimer that the organization publishing the report and the firms with which the individual authors are affiliated disclaim approval of its findings.

The report next attempts to bolster its ethos with fulsome framing documents. Three preliminary texts follow the title and copyright pages. First is “A Note from the Authors,” featuring photos of Stephanie A. Scharf and Roberta D. Liebenberg, who were appointed by Bass as Co-Chairs of the Presidential Initiative on Achieving Long-Term Careers for Women in Law (Liebenberg & Scharf, 2019, pp. i–ii). Next up is a foreword from Hilarie Bass, who by the time of publication was the past president of the ABA. According to Bass, Walking out the Door is the first of four research reports to be published as a result of the presidential initiative (Liebenberg & Scharf, 2019, p. iii). However, only two additional reports have been published: Left Out and Left Behind, published in 2020, examining the “experiences women lawyers of color have in the profession,” and In Their Own Words, published in 2021, subtitled “Experienced Women Lawyers Explain Why They Are Leaving Their Law Firms and the Profession” (American Bar Association, n.d.-a; Liebenberg & Scharf, 2019, p. 25).⁹ Finally, a foreword from Patrick Fuller, Vice President of ALM Intelligence, notes that the report is the result of a “joint study” conducted by ALM and the ABA. Fuller explains his credentials: “I gave my first speech on diversity in 2002 for the Minority Corporate Counsel Association. … As the only son of a single mother, I witnessed first-hand the struggles that women faced in professional environments, from behavioral double-standards to the lack of advancement and recognition for achievements” (Liebenberg & Scharf, 2019, p. iv). As a male writing about the oppression of women, Fuller is at pains to bolster his ethos (and that of the report as a whole) by proving that he is an ally to women.

Like Astell, whose wealthy patrons supported her work, the ABA Report has its sponsors. The final page lists Platinum, Gold, and Silver Sponsors, along with Patrons. The Platinum Sponsors are the ABA Commission on Women, the Center for Women in Law, Teachers Insurance and Annuity Association of America, and Sheppard Mullin, described on its X.com (formerly Twitter) site as a “[f]ull-service AmLaw 50 firm with more than 1000 attorneys in 16 offices in the United States, Europe & Asia.” Of the additional fifty-plus sponsors and patrons, all are large national law firms, with the exception of the ABA Section of Litigation, John Hancock Financial, the Ark Group, Charles River Associates, VISA, Wal-Mart Stores, Inc., Hilarie Bass, and Roberta (Bobbi) Liebenberg.

Clearly, these adjuncts to the text are intended to provide extrinsic ethos for the report: The two identified female authors do not stand alone; they are supported by a former ABA president, a prominent national research firm, a male ally, and a plethora of the very organizations the report critiques. But, paradoxically, the effect of all this hedging is to incite skepticism. The disclaimers, which try to distance the text from the very organizations that appear to sponsor it, create tension. Is the text so dangerous or controversial that these groups cannot appear to approve of it? Yet the nature of the sponsoring organizations – the most powerful lawyers’ group in America, large corporations, and large multinational law firms – creates a halo of conservatism and convention around the text. Can a work supported by such groups say anything radical or revolutionary? The overall effect of these elaborate efforts to bolster the text’s extrinsic ethos is to destabilize the text, to raise questions in the reader’s mind at the outset, and to undermine the authors’ extrinsic and intrinsic ethos.

In contrast to the energetic ethos-building of the report’s authors, Astell does not see the need to bolster her authority in A Serious Proposal. The first edition was published anonymously by “A Lover of Her Sex,” clearly indicating that the author is a woman. The work “burst upon London in 1694 and was read and talked of from Pall Mall to Grub Street” (Perry, 1986, p. 99). Despite the anonymous publication, Astell’s authorship seems to have been an open secret, due perhaps to her network of aristocratic friends or the support of her publisher, well-known bookseller Rich Wilkin (Perry, 1986, pp. 68–69). Thus, while the author’s anonymity would seem to defeat any extrinsic ethos, her readers’ knowledge of her authorship would engender some extrinsic ethos. Of course, this knowledge was a two-edged sword: Respectable women of the period were relegated to the private sphere, meaning that only private genres, such as letters and diaries, were deemed appropriate. In seventeenth-century England, women were viewed as naturally deficient in intelligence, morality, and goodwill, the three elements of classical ethos (Sutherland, 2005, pp. 6–8). Once a woman entered the realm of commercial publication, her ethos was brought into question because she was engaged in an activity deemed inappropriate for women (Sutherland, 2005, p. 8). By publishing her theories publicly, Astell broke contemporary rules of decorum (Sutherland, 2005, p. 23). Perhaps recognizing that her authorship challenged contemporary norms, Astell attempts to identify her work as an acceptable genre: the letter. Without a dedication, foreword, or introduction, Astell begins her project with a straightforward salutation: “Ladies.” She embarks upon her discourse with confidence, taking advantage of the intrinsic ethos of her work – its logic and clear style – to gain the trust of her readers.

While A Serious Proposal was widely admired, in the second part of the Serious Proposal, published three years later, in 1697, Astell supplements her reliance on intrinsic ethos with some extrinsic ethos building. In the period between 1694 and 1697, Astell published her second work, her correspondence with John Norris, a well-known philosopher, entitled Letters Concerning the Love of God. This work, published in 1695, came in for harsh criticism. Indeed, another well-known woman intellectual, Damaris Masham, John Locke’s patron, published a pamphlet critical of Astell, Discourse Concerning the Love of God in 1696 (Perry, 1986, p. 87). These intervening events may explain why the second part of A Serious Proposal, published anonymously, again by Wilkin, opens with a dedication to “Her Royal Highness, the Princess Ann of Denmark,” signed only “Your Royal Highnesses Most Humble and most Obedient Servant.” By 1697, this anonymity was certainly unnecessary, since Astell was openly credited as the author. Indeed, A Serious Proposal was so popular that it went through five editions by 1701 (Perry, 1986, p. 103). However, the first part of A Serious Proposal had been criticized for offering no practical scheme for bringing its vision of a Protestant nunnery to fruition. In the second part, Astell offers a program of education for the women who undertake to educate themselves, and she believes that Princess Ann can further this project:

What was at first address’d to the Ladies in General, as seeming not considerable enough to appear in your Royal Highnesses Presence, not being ill receiv’d by them, and having got the Addition of a Second Part, now presumes on a more Particular Application to Her who is the Principal of them, and whose Countenance and Example may reduce to Practice, what it can only Advise and Wish.

(Astell, 1970, p. 47)

Thus, it seems that the dedication to Princess Ann was not intended to bolster Astell’s credibility as a form of extrinsic ethos so much as it served a more practical purpose: flattering a potential donor.

Following the dedication is a nine-page introduction, “containing a farther Perswasive to the Ladies to endeavor the Improvement of their Minds.” Here Astell is more self-conscious, noting that she is taking a risk in publishing the second part, since she could more safely “content her self with the favourable reception which the good natur’d part of the World were pleased to afford to her first Essay” (Astell, 1970, p. 51). She declares that she is “very indifferent what the Critics say, if the Ladies receive any Advantage by her attempts to serve them,” and asserts, “It were more to her Satisfaction to find her Project condemn’d as foolish and impertinent, than to find it receiv’d with some Approbation, and yet no body endeavoring to put it in Practice” (p. 51). The second part is neither a retraction, nor an explanation, nor an apology for the original. Instead, it is a further step along the path she marked out in the first part, which merely laid out her plan “in general,” with “the particular method of effecting it left to the Discretion of those who shou’d Govern and Manage the Seminary” (p. 59). In the second part, she hopes “to lay down in this second part some more minute Directions” for achieving her vision (p. 59).

While the addition of a dedication and introduction could be interpreted as props to her credibility by invoking aristocratic authority and addressing criticism of the original, Astell, far from backing down from the original, sees these additions as aids to achievement of her original vision. Rather than simply restate her suggestion for a protestant monastery for female education, she includes philosophical theory that her stated audience of upper-class and middle-class literate women would have little experience with (Astell, 1970, pp. 65, 66). Astell increases her intrinsic ethos by demonstrating her ability to engage in rhetorical logos, propounding philosophy and educational theory at the same level as influential thinkers of her time (pp. 66, 80). The confidence she exhibited in the first part of A Serious Proposal seems undiminished in the second part, in which she broadens her audience to include not just other women but also other philosophers. Astell’s refutation of her critics, including John Locke, signals a crucial step from the traditionally female and passive rhetorical style of sermo into the more confrontational and masculine contentio, which will be on display in her later works (Sutherland, 2005, p. 80).

12.3.2 Argument: Who Caused the Problem and Who Should Solve It?

12.3.2.1 Audience

Both Astell and the ABA Report address elite, conservative audiences. Astell expected her proposal to reach literate women, and literacy was far from universal among women in the seventeenth century. Certainly, her audience was limited to upper- and middle-class women. Similarly, the ABA Report is not directed to the general public, but to legal professionals. In fact, it is aimed at a particular set of lawyers – those in the 500 largest American firms. Even more particularly, it is aimed at the partners, especially the managing partners, of those law firms.

Thus, the two works have very different audiences: Astell addresses women, while the report addresses men. In fact, these differing audiences reflect the basic dichotomy that subsists throughout the two works. The most fundamental similarity between the two authors is their use of the dichotomy between men and women to describe the human experience. Omitted from this universe are non-binary or gender-nonconforming individuals. However valid the dichotomy may have been in 1694, by 2019, when the ABA Report was published, the dichotomy certainly was not an accurate description of the universe of lawyers (National Association for Law Placement, 2010). Moreover, Astell theorizes her audience, while the ABA Report does not. Throughout A Serious Proposal, Astell is conscious of her audience. She addresses women using the second person. She describes them, analyzes them, and exhorts them. In contrast, the ABA Report does not directly address its audience, nor does it explicitly theorize those at whom the report is aimed.

Accepting the dichotomy between men and women, the two authors are surprisingly congruent in the assumptions they make about both groups. For Astell, men are in charge politically, socially, and personally. They have excluded women from positions of power within society. Even within the family, men (with the complicity of women) have created a culture that has unfitted women for serious thought or discourse. Indeed, they are not even fit to educate their own children. Astell takes a Christian view of women, seeing them as created by God and – radically for her time – equal to men in intellect. However, women have been acculturated to value only the most superficial things – dress, flirtation, accomplishments such as needlework. Women are enthralled to “Tyrant Custom.”

Similarly, the ABA Report sees men as the source of power within large law firms. They are the ones who can make the changes advocated by the report. Emphasizing the number of managing partners who responded to their survey – only 28, a miniscule number given the number of law firms included in the survey (500) – the report speaks primarily to these few individuals. Although women make up a certain percentage of equity partners in large law firms, and may also serve as managing partners, the report does not explicitly recognize this fact. Congruent with its identification of its primary audience, the rhetoric of the report is male-centered. With the exception of a few passages, its discourse views women as victims of big firm culture and the sole caregivers within the family. Most importantly, however, the report depicts women as financial assets whose earning power can be exploited.

12.3.2.2 The Problem and Its Cause

Both Astell and the ABA Report maintain awareness of their respective audiences throughout their arguments, using rhetorical strategies, including figures of speech, that reflect their audiences’ viewpoints. In diagnosing the reasons why women have not prospered in their respective cultures – seventeenth-century England and twenty-first century American large law firms – both authors assign the blame to men. In proposing a solution, however, the two authors diverge. Astell sees women as the agents of their own improvement, while the ABA Report believes that men hold the key to improving women’s status. Consistent with her confidence in her own intellectual prowess, Astell moves eloquently from sermo to contentio in framing her argument. In contrast, the ABA lurches uncomfortably at times between sermo and contentio. At all times during her argument, Astell speaks to her audience as one of them, while the ABA Report mostly identifies with its male audience, but – perhaps reflecting the fact that its two named authors are female – at times takes a more adversarial stance.

Despite her assumption that men wield primary power within her society, Astell correctly assesses the needs of her audience by engaging in woman-centered discourse. Although her audience are women, Astell does not soft-pedal her views about her contemporaries. She begins her analysis by identifying the problem: the current state of Women, who are “cheap and contemptible” (Astell, 1970, p. 1). She deploys a variety of metaphors, many based upon natural phenomena, to describe her contemporaries. They are “useless and impertinent Animals” (p. 1). They are “Cyphers in the World, useless at the best, and in a little time a burden and nuisance to all about them” (p. 1). When women speak without education or understanding, “[p]rating like Parrots,” their words are meaningless (p. 101). And in Astell’s most famous simile, she asks her contemporaries, “How can you be content to be in the World like Tulips in a Garden, to make a fine shew and be good for nothing; have all your Glories set in the Grave, or perhaps much sooner?” (p. 3).

Set against this pessimistic vision of women’s current status is Astell’s assessment of women’s potential. Astell undertakes to “enquire what it is that … keeps you groveling here below, like Domitian catching Flies, when you should be busied in obtaining Empires” (Astell, 1970, p. 5). Thus, her argument begins in the sermo rhetorical style, using a conversational tone to instruct the reader that the current state of affairs for women is deleterious to women and the social order through its waste of God’s natural gift of reason to women (Sutherland, 2005, pp. 53–54). Astell appeals to the readers through pathos in these descriptions, using pessimism and pity to motivate her reader to seek the solution that she intends for women of her standing. She also appeals to her audience by using the very style she advocates for the pupils in her academy: a “plain and explicit” style which persuades “by putting every thing in its proper place with due Order and Connexion” (Astell, 1970, p. 118).

If women are to obtain empires, they must first overcome the causes of their current debased state. Here, Astell employs a series of dichotomies to explain why women have not obtained empires and to describe what must happen for women to becomes empresses. The most important dichotomies are Body versus Mind, Vice versus Virtue, Ignorance versus Knowledge, and Custom versus Reason, but these align with subsidiary dichotomies of Appearance versus Reality, Affections versus Judgment, Chat versus Conversation, and Wit versus Wisdom, among others (Astell, 1970, pp. 1, 9, 10–11, 13, 15, 16, 73, 129). Although the overuse of dichotomies can feel simplistic and lack texture, Astell’s copious use of more granular dichotomies largely avoids this danger. These dichotomies, in turn, align with Women as They Are and Women as They Might Be. Despite the scathing words Astell uses to describe her contemporaries, the overall effect of this constant dualism is optimistic: The present can be reformed; the future can be different from the past. Astell’s use of metaphor and dichotomy signals her foray into contentio style of rhetoric that was typically reserved for men in her time (Sutherland, 2005, p. 65).

With respect to the cause of the problem, Astell has no doubt:

[I]f our Nature is spoil’d, instead of being improv’d, at first; if from our infancy we are nursed up in Ignorance and Vanity; are taught to be Proud and Petulant, Delicate and Fantastick, Humorous and Inconstant, ’tis not strange that the ill effects of this Conduct appear in all the future Actions of our Lives.

(Astell, 1970, p. 7)

Although Astell elsewhere identifies women as the primary caretakers of children (p. 129), she lays the blame for women’s defective upbringing squarely at the door of men. It is clear to Astell that men are in charge. Metaphorically, men raise women as a crop or build women as a house:

The Soil is rich and would if well cultivated produce a noble Harvest, if then the Unskilful Managers, not only permit, but incourage noxious Weeds, tho’ we shall suffer by the Neglect, yet they ought not in justice to blame any but themselves, if they reap the Fruit of this their foolish Conduct. Women are from their very Infancy debar’d those Advantages, with the want of which they are afterwards reproached, and nursed up in those Vices which will hereafter be upbraided to them. So partial are Men as to expect Brick where they afford no Straw.

(Astell, 1970, p. 6)

According to Astell, men cannot see any problem with keeping women in ignorance because they believe that women “were made for nothing else but to Admire and do them Service, and to make provision for the low concerns of an Animal Life” (p. 158).

Although she identifies men as the cause of women’s current status, Astell broadens the circle of blame by personifying Custom as the ultimate force behind women’s subordination. While men may have been “Unskilful Managers” who neglect women’s education, Astell assigns a more active role to Custom: “Thus Ignorance and a narrow Education lay the Foundation of Vice, and Imitation and Custom rear it up” (Astell, 1970, p. 10). The nurturing role that should be played by virtuous women rearing virtuous children has been usurped by “Tyrant Custom,” as she calls it (p. 11). The dichotomy between Custom and Reason explains what Astell means by “Custom.” For her, it is received wisdom, the voice of authority, the socially accepted way of doing things (Broad, 2007, p. 168). Custom opposes Reason because it is collective rather than individual. Reason operates in the individual; placed within each individual soul by God, it empowers the individual to judge accurately between right and wrong. In contrast, Custom “reverses the proper relation between the understanding and the will” (Astell, 1970, p. 11). While the individual’s understanding, operating on the basis of Reason, makes an accurate judgment about right and wrong, the will conforms to Custom, “becom[ing] a ‘head-strong and Rebellious Subject’” (p. 84). Because, in Astell’s view, the will develops before the understanding, humans are not initially governed by Reason but by “Education, Example, or Custom” (p. 63). Thus the need for a proper childhood education becomes paramount.

For Astell, Custom is what anthropologists today might call “culture”; it pervades society, dictating gender roles and valuing vice over virtue. It is a “merciless torrent that carries all before it” (Astell, 1970, p. 63). Of course, a culture is not created by one sex alone, and Astell clearly sees that women have contributed to the authority of Custom. However, she argues, they are not to blame for following its dictates. Although she urges her readers to “dare to break the enchanted Circle that custom has plac’d us in” (p. 3), she also realizes the cost to women of trying to swim upstream against the torrent: “For Custom has usurpt such an unaccountable Authority, that she [who] would endeavor to put a stop to its Arbitrary Sway and reduce it to Reason, is in a fair way to render herself the Butt for all the Fops in Town to shoot their impertinent Censures at” (p. 29).

Like Astell, the authors of the ABA Report identify the problem as the current status of women. Specifically, women are not becoming equity partners at large law firms in the numbers that would be expected based upon their representation in law schools. Although women now account for more than 50 percent of law school graduates, and although almost 45 percent of new associates at large law firms are women, only 20 percent of equity partners in large law firms are women (Liebenberg & Scharf, 2019, pp. iv, i). Data from the National Association for Law Placement show that the gender representation gap increases relative to seniority in law firms (p. 2). Thus, the ABA Report clarifies that the problem is not the failure to hire women into entry-level associate positions. Instead, the problem is the failure to promote women into the powerful, profit-sharing upper echelon of large law firms.

As for the cause of this disproportionate attrition of women, the ABA Report blames men, or, more generally, the workplace culture cultivated by the majority-male power structure in the firms. Of course, the few women who are equity partners contribute to the firm culture, but the report does not explicitly remind the reader of this fact. Consistent with its identification of its audience as men, the report conceptualizes firm leadership as male. However, to the extent that culture is the culprit, women are complicit in both the seventeenth-century culture described by Astell and the law firm workplace culture identified in the ABA Report. But Astell seems to be more aware of this complicity than are the authors of the report. Astell’s reprimands to women show her awareness that the frivolity and triviality she abhors are partly created and maintained by women. On the other hand, the ABA Report does not exhibit any awareness that women contribute to the toxic culture in large law firms. Women are partners; they serve on compensation committees; they serve as managing partners. The conditions in large law firms that drive women away before they make partner are partly created and maintained by women who have achieved that status. Astell’s clarity about her audience – literate, largely upper-class women – enables her to take better account of their role in maintaining the dominant culture. While Astell accurately recognizes that men operate the power structures in seventeenth-century Britain (government, judicial system, church, and most of the wealth), the ABA Report glosses over the fact that senior women lawyers are just as responsible as senior male lawyers for creating law firm culture.

Using survey results from 1,262 men and women lawyers with more than 15 years’ experience in the nation’s 500 largest law firms,¹⁰ the ABA Report focuses on two categories of information: the everyday experiences that contribute to the success of both men and women, and, specifically, what causes women in particular to stay or leave their firms (Liebenberg & Scharf, 2019, pp. 3, 9). Ironically, the report highlights that when firm leadership genuinely believes that their practices infallibly create a meritocracy, they are less likely to be aware of the various biases that inhibit female attorneys from achieving partnership status (p. 4). This lack of awareness manifests itself in everyday practices that contribute to the dissatisfaction of women with the firm’s status quo.

According to the survey results catalogued in the ABA Report, the cause of women’s attrition from large firms is not one definite issue; rather, it is “a death by a thousand cuts,” ranging from routine disrespect from all levels within the firm to overt violence in the forms of sexual misconduct and fear tactics (Liebenberg & Scharf, 2019, p. 4). Female attorneys are far more likely than their male counterparts to have negative workplace experiences, including being mistaken for a lower-level employee, being overlooked for advancement or salary increases, and missing out on desirable assignments (pp. 7–8). Additionally, the existing informal structure for compensation and recognition and the lack of female representation on compensation committees create a system that does not provide equitable treatment for female attorneys (p. 8).

Specifically, the survey presented women respondents with several reasons why they may choose to leave large private firms and asked women to report whether the reason was “a very or somewhat important reason for leaving.” Fifty-eight percent of women said that caretaking commitments fell into this category and 50 and 51 percent said that the number of billable hours and the emphasis on marketing or originating business were important reasons for leaving (Liebenberg & Scharf, 2019, p. 16). In another study by the ABA related to female attrition, the focus groups reiterated the claims in Walking Out the Door, citing undercompensation and unreasonable time demands as their least liked aspects of practicing law in large private firms (Sterling & Chanow, 2021). In addition to caretaking demands, overwork, and undercompensation, the survey reported that 50 percent of women were sexually harassed at work and that 25 percent of women decided not to report their sexual harassment out of fear of retaliation (Liebenberg & Scharf, 2019, p. 8). The report describes these conditions of sexual misconduct as “pervasive” in large firms (p. 9).

Thus, while the underlying cause of women’s failure to achieve and maintain equity partner status is big-firm culture, women’s attrition also results from their own decisions to leave, to “walk out the door” – their refusal to continue to endure the conditions outlined in the report. Women lawyers are not interested in being the Stepford wives of the legal profession, being passed over for tangible and intangible forms of recognition and yet expected to continue in the industry that does not respect them and actually harasses them. Although the report at several point equates leaving Big Law with leaving the profession, it is likely that many, if not most, women who depart large law firms find more attractive practice environments elsewhere, recognizing that their efforts will be better compensated, or they will find more professional satisfaction, in government work or as in-house counsel (Liebenberg & Scharf, 2019, p. 2).

Both Astell and the ABA Report see women as the problem. For Astell, women are poorly educated, resulting in a shallow and frivolous life, devoid of the intellectual and spiritual rewards that would result if their minds were nurtured. But women are not the cause of their own intellectual failings. They are poorly educated, shallow, and frivolous because men have engineered the social structure to exclude them from the benefits of education. Tyrant Custom has imprisoned women. For the ABA, women have come a long way: They are educated, professionally equal to men, and capable of achieving the greatest heights in the legal profession (large-firm partnerships). But they are stymied by large-firm culture, a culture created by existing firm leadership, which is overwhelmingly male. Like the Custom of Astell’s day, big-firm culture of twenty-first-century America creates an environment in which women cannot thrive. Treated with disrespect or active hostility, women lawyers exercise their power of choice by leaving large law firms behind.

12.3.3 Argument: The Appeal and the Solution

With the problem and its cause identified, both Astell and the ABA Report undertake to propose a solution. Here, perhaps, is their greatest challenge: They must ask their audiences to take action. While indicting those responsible for the problem, both authors must also appeal to the self-interest of their readers in order to motivate change. In meeting this challenge, Astell proves much more effective than the ABA Report. Her rhetoric skillfully appeals to her audience’s self-interest while admitting the difficulty of implementing her proposed solution. In doing so, she moves appropriately from sermo to contentio. The ABA Report, on the other hand, remains embedded in male-dominated large-firm culture, even while trying to ameliorate it. Unlike Astell, who proposed a radical solution that women themselves should enact, the ABA Report proposes conservative steps that reflect the view of women as victims and as primary caretakers. In doing so, the report appeals primarily to the financial interests of law firm leadership, depicting women as assets to be exploited.

The difficulty of breaking free of the culture in which one is immersed motivates Astell to propose her “Academical Institution” for women (1970, p. 157). For Astell, the first advantage of “Retirement” is that “it helps us to [check]mate Custom and delivers us from its Tyranny, which is the most considerable thing we have to do, it being nothing else but the habituating our selves to Folly that can reconcile us to it” (p. 157). Separated from the social whirl, women will be able to achieve what Astell terms “the one great end of this Institution”: “To expel that cloud of Ignorance which Custom has involv’d us in, to furnish our minds with a stock of solid and useful Knowledge, that the Souls of Women may no longer be the only unadorn’d and neglected things” (p. 17). Astell believes that women have the power to save themselves, to gain education and to put it to work once they return to the world. Her vision requires liberating women from the fetters of Custom by removing them to a safe haven where they can improve themselves through self-reflection. Although Astell envisions the women reading works of philosophy such as the works of Descartes and Malebranche, she also prescribes self-knowledge, reflecting her belief in the power of women’s minds (p. 20).

First, however, the process of gaining self-knowledge begins by stripping away the worldly trappings that distract women from their nobler quest. When the mind is constantly taken up with the sensations deriving from worldly trifles, it is impossible to focus the mind on itself.¹¹ Consistent with Astell’s (1970) high-church Anglican loyalties, in the secular monastery women will regularly take communion, will hear preaching, and will observe all the holy days of the Church (Astell, 1970, p. 21). Their food and clothing will be “plain and decent,” with no “superfluities” (p. 22). Their conversation will consist of “Friendly Admonitions,” as opposed to the “Scoffing and offensive Railleries” of the world (p. 22). In the monastery, there will be “no impertinent Visits, no foolish Amours, no idle Amusements,” and there will be very little time “spent in Dressing” (p. 25). Indeed, Astell’s austere vision of her monastery also paints a vivid picture of its opposite, the social world, which is peopled by flighty but conniving women and arrogant, lustful men. Astell herself recognizes the self-perpetuating nature of that world. Women who feast on “Plays and Romances” see themselves reflected there, and this in turn confirms them in their “greatest Follies” (p. 19). Thus, in the Academical Institution, it is vital to eliminate these useless, and indeed vicious, works because “[a] rational mind will be employ’d, and it will never be satisfy’d in doing nothing, and if you neglect to furnish it with good materials, ’tis like to take up with such as come to hand” (pp. 19–20).

Unlike Astell’s proposal of an entirely new institution with which to address the issue of women’s education, the ABA’s solution to the problem of female attrition in law firms is firmly grounded in existing Big Law structure. That structure is thoroughly capitalist, based on profits earned by equity partners by charging clients more than it costs the firm to pay associates and non-equity partners to staff the clients’ cases. The pool of clients is generated by the lawyers’ “rain-making” abilities, and it is primarily the firm’s senior lawyers who attract wealthy clients. Thus, the report appeals primarily to its audience’s self-interest in retaining senior female attorneys. Law firm managers are urged to “own the business case for diversity” (Liebenberg & Scharf, 2019, p. 19). Women’s departure from Big Law constitutes, not a loss of intellectual energy or human potential, but rather a loss of clients – the lawyers’ “books of business” – and a lost return on the firm’s investment in those lawyers (p. 1). The report points out that “[l]aw firms devote substantial resources to hiring and training their lawyers, and the attrition of senior women lawyers causes substantial losses, both tangible and intangible” (p. 2). Even more bluntly, the internet marketing materials for the report include the following observations on the loss of female partners by Guy N. Halgren, chairman of the Executive Committee at Sheppard Mullin: “[I]f you’re losing men or women during that time period, it’s just very tough on your business … [I]t’s not just that you’re going to miss out on business by not having folks around, but also that you’ve spent so much money getting them to that point” (American Bar Association, n.d.-b, 1:38, 1:38–2:07). Thus the ABA Report appeals to the self-interest of large firms by correlating attrition of female attorneys with financial loss and wasted investment:

When senior women lawyers leave firms, the firm’s relationship with those lawyers’ clients suffer, there is a reduced range of legal talent to offer clients, a narrower base for firms and businesses to develop robust client relationships, a diminished ability to recruit and retain skilled women lawyers at all levels, and, ultimately, serious challenges to the firm’s future growth and revenue.

(Liebenberg & Scharf, 2019, p. 2)

The authors of the report expect firm management to be galvanized into action to change their culture and practices to ameliorate the issue of the gender gap because it affects the firms’ ability to make a profit on their investment in hiring female attorneys.

Conversely, the ABA Report repeatedly notes that managers of large law firms often fail to properly recognize and compensate women for their success in rainmaking, bringing new clients into the firm (Liebenberg & Scharf, 2019, p. 7). The report is not the first to recognize this disparity. The legal research firm Major, Lindsey & Africa has been tracking the gendered difference between compensation and client origination credit for years. From 2010 to 2018 male partners made between 32 and 53 percent more than female partners, and 48 percent of that difference is related to differences in origination credit (Lowe, 2018, p. 53). To address this issue, the report suggests that law firms develop a written policy for origination credit and a system to settle disputes of origination credit (Liebenberg & Scharf, 2019, p. 19). While mistrust of law firms’ management echoes throughout the other solutions provided by the ABA Report, the suggested solution to this important problem is entrusted to the same managers who, according to the report, create the problem in the first place (p. 18).

Another of the primary causes of female attrition mentioned by women lawyers was the lack of time to fulfill their caretaking commitments (Liebenberg & Scharf, 2019, p. 12). The ABA Report recognizes that male attorneys in families that have children or elders requiring care do not carry the same burdens as female attorneys in similar family structures (p. 12). Firms often boast that female attorneys can still stay on the partner track while working part-time; however, even though nearly all large firms have this option, only 6–7 percent of attorneys make use of these policies (p. 13). The female attorneys realize that although this opportunity is afforded to them, actually using the part-time structure would likely ruin their timeline and goals of becoming partner (p. 13). The ABA Report notes with approval that some firms are implementing so-called concierge services to attract and keep female lawyers by hiring people to do the homemaking tasks that female attorneys typically would be forced to do on top of their work at the firm. Rather than encouraging men to do their fair share so that women don’t have to work the “second shift,” the ABA’s suggested solution is to hire people to do those tasks, which reinforces the gender hierarchy by shielding men from their caretaking duties. This solution, reiterated in the section describing what firms should do to decrease attrition, negates a worldview where people have valuable and meaningful work outside of the firm in favor of facilitating the same high working hours that the report identified, just a few pages earlier, as a cause of female attrition (p. 11).

Most seriously, the ABA Report notes that 50 percent of women reported receiving “unwanted sexual conduct at work” and 16 percent of women “have lost work opportunities as a result of rebuffing sexual advances” (Liebenberg & Scharf, 2019, p. 8). Weirdly, in light of this revelation of the pervasiveness of conduct that, in some cases, could be criminal, the ABA Report recommends merely the implementation of “sensible and enforceable policies that incentivize women to report sexual harassment, protect them from retaliation, and punish those who engage in such conduct” (p. 9). This is the only use of the word “sensible” in the entire report. While insisting that “[l]aw firms must send a strong message that sexual harassment simply will not be tolerated,” the policy that the ABA Report ultimately recommends as the remedy for sexual harassment at firms is to have more sexual harassment training (p. 19). The report fails to recommend firing lawyers who are guilty of sexual harassment, although such an example is provided in a footnote (p. 23 n.45).

This approach of identifying a serious and pervasive problem facing women in Big Law and then giving general advice in corporate-speak, touting strategy, targets, and metrics, is repeated throughout the solutions section of the report (Liebenberg & Scharf, 2019, p. 18). The logos of the report is sound, providing clear and specific evidence that points to a logical conclusion: The workplace culture and practices of large firms push women out before they are able to climb the hierarchy and become top billers for their firms. However, the lack of practical responses that firms or individuals can take harms the rhetorical strength of the authors’ argument that firm behavior is both the cause of and the solution to this problem.

In sum, the attrition of female attorneys from large law firms is the result of toxic firm culture, but rather than advocate changing the culture to be more amenable to female lawyers, the ABA Report provides solutions that attempt to allow women to exist in the culture as it presently exists. Hiring concierge services, hosting more awareness campaigns, and adopting “sensible” policies on sexual harassment do not strike at the problem of female dissatisfaction with the current law firm culture. Consistent with the ABA’s conservative history, and its donors’ mainstream presence, the report seeks to solve the problem of female attrition by encouraging just enough change to quiet the complaints of female attorneys while maintaining the firms’ basic capitalist structure. The report’s tacit acceptance of this structure weakens the rhetorical logos that it crafted by using empirical evidence of the problem and its causes. The fate of women lawyers in large firms is in the hands of the same actors – primarily men – who have created and maintained the system that generates the problem. There is nothing radical to see here.

Similarly, despite the radical nature of Astell’s proposal – creation of an entirely new institution for women’s education – her assumptions and goals are deeply conservative, befitting a devout middle-class Anglican woman writing in the 1690s. What is the ultimate goal of Astell’s proposal? She does not promote only one goal; instead, she elucidates a series of intermediate goals that will lead to what she sees as the ultimate good, expressed in a rhetorical question: “What End can Creatures have but their Creators Glory?” (Astell, 1970, p. 75). And along the way to this ultimate goal, women will achieve a number of concomitant goals that will benefit their families and society in general. Astell catalogues a number of ways in which the women’s sojourn in the Academical Institution will benefit others. Aiming her argument toward men, she points out that a good education will make a woman a “better Wife” who will reclaim the brutish instincts of men and will make his life so “comfortable” that he will remain faithful (pp. 36, 38). Astell also argues that an educated woman will be a better mother by exerting a good influence on the impressionable child (pp. 38, 129). Surprisingly, perhaps, Astell urges her readers – primarily literate middle- to upper-class women – to nurse their children: “And if Mothers had due regard to their Posterity, how Great soever they are, they would not think themselves too Good to perform what Nature requires, nor through Pride and Delicacy remit the poor little one to the care of a Foster Parent” (p. 7). On the other hand, her position is consistent with her conservative Anglican values, which consign women to the private sphere. Astell disclaims any argument for a public role for women: “Women have no business with the Pulpit, the Bar or St. Stephens Chapel [i.e., Parliament]” (p. 123). However, Astell does envision a role for women as teachers. Disclosing her view of her audience, Astell notes that women educated in the seminary can “give the best Education to the Children of Persons of Quality, who shall be attended and instructed in lesser Matters by meaner Persons deputed to that Office” (p. 35).

But in Astell’s view, the influence of educated women will extend beyond the family to a larger social circle. Women will not only educate children; they will educate one another. Although women have no place in the public pulpit, Astell insists that there can be no objection to women’s educating one another, presenting a biblical example of a female teacher:

I cannot imagine wherein the hurt lies, if … Women be enabled to inform and instruct those of their own Sex at least; the Holy Ghost having left it on record, that Priscilla as well as her Husband, catechiz’d the eloquent Apollos and the great Apostle found no fault with her.

(Astell, 1970, p. 20)

Thus the education provided in the seminary will “fit us to propagate Religion when we return into the World” and to “make[] Proselytes to heaven” (pp. 33, 34). An educated woman can “improve her Sex in Knowledge and true Religion”; she can “revive the ancient Spirit of Piety in the World” (p. 14).

However, more important than the benefit that women will bestow on others is the benefit women themselves will accrue. One of Astell’s most consequential positions is that women’s “Soul,” like men’s, is created in the image of God (Astell, 1970, p. 78). Likewise, women, like men, are endowed with Reason and are equally capable of using it to develop their understanding (p. 18). Astell asserts that using the power of Reason to develop the understanding will enable women to choose right actions and to appreciate divine revelation, but Astell also conceives women’s mental powers as being intrinsically valuable, not just instrumentally valuable (pp. 62, 98). She adopts, for women, the Cartesian model of man as a self-reflecting, self-knowing being. Astell explains to her readers that the retirement provided by the seminary will enable its residents to “know and reflect on our own minds” (p. 29). If women have done the difficult mental work necessary to clear their minds of prejudices, Astell assures her readers that Truth is easily accessible: “we have no more to do but to look attentively into our Minds” (p. 97). Education in the monastery will be valuable because it will enable her readers to “live up to the dignity of your Nature” (p. 4). Indeed, having chided her readers early on that they should be chasing empires instead of flies, Astell explains near the end of the Proposal what kind of dominions she hopes her readers will rule over. She hopes that by being “intimately acquainted with our own Hearts,” women will become “Monarchs in our own Bosoms” (p. 159).

12.3.4 Sermo and Contentio

While Astell clearly moves from sermo to contentio – from her salutation to her audience as “Ladies,” to her exposition of a full-fledged theory of rhetoric – the report mixes elements of sermo and contentio (Liebenberg & Scharf, 2019, p. 1; see Sutherland, 2005, chs. 9–10). The framing materials establish a familiar tone, complete with smiling photographs and use of the first person to address the reader, redolent of sermo (Liebenberg & Scharf, 2019, pp. i–v). Yet the report begins with reference to “facts” and “figures,” invoking surveys and percentages and using distancing constructions such as “It is clear that” and “It is evident that” (p. 2). Instead of first-person pronouns, subjects of sentences become abstract nouns – for example, “implication,” “problems,” “satisfaction” (p. 7). This rhetoric of contentio comprises the majority of the twenty pages of the report. However, unlike Astell, who keeps her eye steadily on her female audience throughout the first part of the Serious Proposal, the authors of the report interrupt with first-person statements more suitable to sermo. In fact, these first-person statements, and the instability they inject into the discourse, reflect a bit of frustration with their audience. Although the report is clearly aimed at those in charge of Big Law firm culture, of the 1,292 respondents to their survey, only 28 were managing partners (p. 3). When the authors declare, “We also emphasize that there is no ‘one size fits all’ set of policies that suits all firms. We urge firms to tap into the creativity of their own lawyers” (p. 13), they are pleading with the minority of their respondents, the ones whom they are depending on to make the changes necessary to improve women’s positions in law firms.

This personal tone is more consistent with sermo than contentio, creating an uneasy slippage between the two discourses. Similarly, the contrast between Astell’s and the report’s style, especially their use of metaphor, shows the same slippage between sermo and contentio in the report. Astell’s metaphors refer almost exclusively to nature – women are tulips in a garden, they are soil to be cultivated, they are straw to be used as bricks. In contrast, the report’s metaphors are either competitive or mechanistic. According to the report, the goal of Big Law should be to “level the playing field” (Liebenberg & Scharf, 2019, p. ii). Currently, the report concludes, law firms are forcing women to “sidelin[e]” their careers by continuing to “move the goal posts” of equity partnership (pp. 1, 13). If equity partnership is a game to be won, it is also a vantage point to be achieved through utilizing “building blocks” and “climb[ing] up the ladder” (pp. 4, 7, 17). Thus, to Astell, the progress of women is a natural process; attention and conscious effort will yield fruit. True, women’s minds have to be tended, and the people best able to do that are men, given the social arrangements of seventeenth-century Britain, but in Astell’s Academical Retreat, women will be able to nurture themselves. In contrast, to the authors of the report, women in big law firms are competitors in a contest where those in charge of the game are men, who can move the goal posts and sideline women players at will. In the report, equity partnership is a prize to be won through competition or a position to be attained through the use of man-made (literally) tools such as building blocks and ladders. Metaphorically, big law firms must stop giving “lip service” to gender equality; instead, they must “give teeth” to the effort to promote women (pp. ii, 20).

But these metaphors, which support the contentio of the report, are belied by many of the emotion-laden adjectives deployed in the report, which are more appropriate to sermo and seem to deploy pathos in support of the report’s argument. For example, women’s lack of access to equity partnership is “undeniable and unfortunate” (Liebenberg & Scharf, 2019, p. 17). The gender differences revealed by the survey are “striking and alarming”; the results of the survey are “distressing” (pp. 8, 9). These overwrought adjectives might be appropriate in sermo – indeed, in his Foreword, Patrick Fuller of ALM calls the numbers “stunning” (p. iv) – but they create tension with the report’s overall sense of contentio. Just after the survey results have been called striking, alarming, and distressing, the authors speak from a position of undoubted authority in diagnosing the shortcomings in Big Law and prescribing a solution:

What is holding senior women lawyers back is not a lack of drive or commitment, a failure to promote themselves, or an unwillingness to work hard or to make substantial sacrifices. Simply put, women lawyers don’t need to “lean in” any more than they have already done. What needs fixing is the structure and culture of law firms, so firms can better address the needs of the many women they recruit and seek to retain.

(Liebenberg & Scharf, 2019, p. 17)

In their passion, sincerity, and declaratory power, these sentences echo Astell. But they stand out in their context because of the uneasy mix of sermo and contentio that exists throughout the report. In fact, while the report uses emotional adjectives to label the results of the survey, its treatment of sexual harassment demonstrates this instability. The report reveals the truly shocking statistic that “one of every two women [respondents] said they had experienced sexual harassment” (p. 8). But in suggesting a solution to this sorry state of affairs, the authors use the most neutral of adjectives and even resort to bureaucratese: “[F]irm leadership and management [should] implement sensible and enforceable policies that incentivize women to report sexual harassment, protect them from retaliation, and punish those who engage in such conduct” (p. 9). It would seem that if there ever was a time for strong adjectives, the description of a solution to sexual harassment suffered by 50 percent of experienced women lawyers would be it.

Ultimately, the refusal of the ABA Report to suggest radical solutions and to maintain its rhetorical tone may result from its origin. The two named authors of the report, Roberta D. Liebenberg and Stephanie A. Scharf, were assigned the project conceived by former ABA President Hilarie Bass. They were provided a private sector partner, ALM Intelligence, to carry out the mandated survey. They were limited to examining the status of women in a specialized sector of the legal profession. Although the website hosting the ABA Report declares that “‘Walking Out the Door’ is making headlines with its shocking statistics and valuable recommendations” (American Bar Association, n.d.-a), it’s easy to imagine the authors’ belief that their report will merely take its place in a long succession of diversity, equity, and inclusion initiatives resulting in little change. As the authors declare in their introductory note, “We are way past the point where mere lip service to the goal of gender equality in the profession will suffice.” Instead, they argue, the “market” for legal services is “increasingly demanding not only a professed commitment to diversity and inclusion, but actual proof of success in achieving that objective” (Liebenberg & Scharf, 2019, p. ii). Perhaps due to the conservative nature of the proposed solution, the women authors of the report occasionally lurch from sermo into contentio, revealing a certain level of frustration with attempting to motivate real change in large-firm culture.

In contrast, Astell chose her audience and her subject matter. Although she was constrained by the social mores of the time, her education and her network of friends and patrons gave her the confidence to advance her own views in her own voice. Her strong ethos, her explicit acknowledgement and direct address of her audience, and her plain, cogent style contrast with the insecure ethos, blindness to audience, and unstable style of the ABA Report.

12.4 Conclusion

Although Astell’s A Serious Proposal and the ABA report Walking Out the Door have many similarities, ultimately they are very different. Both works divide the world into two genders, men and women. Both perceive a problem with women’s status in the world – the social world, for Astell; the professional world, for the ABA Report. Both assign a gendered cause for the problem – Astell sees men as the culprit, although she acknowledges that men and women both create a culture that buttresses the problem; the ABA Report less perceptively blames (male) law-firm managers for creating a toxic work environment for women, while failing to explicitly recognize the role that women play in maintaining that environment.

Both works are deeply conservative. Astell writes from the perspective of a devout, middle-class Anglican. The ABA Report originates from the perspective of entrenched, well-established, moneyed law firms having traditional hierarchies of status and compensation. Both works are classist and elitist. Not only does Astell aim her proposal at literate, middle-class women, but she also asserts that human reasoning power is distributed on the basis of class. She asserts that some minds have a “larger Capacity” than others, and that “every one is placed in such a Station as they are fitted for” (Astell, 1970, pp. 90, 128). Because God has ordained every person’s social class, each person’s intellectual aspirations should align with their class; the “Plow-man” cannot be blamed for seeking less knowledge than the “Doctor” (p. 84).

Similarly, the thrust of the ABA Report is that equity partnership at a large law firm is the ultimate achievement for a woman lawyer. The report equates leaving large law firms with leaving the practice of law as a whole. The report seems blind to the fact that women who have spent the time and energy to go to law school, to get jobs at competitive firms, and to invest the time and energy to be successful at these firms might choose to work in a different legal setting. It is well documented that the onerous working conditions at large law firms have led women to disproportionately choose work in more hospitable settings such as in-house corporate counsel, government legal departments, or academia. Yet the ABA Report fails to acknowledge that these other roles might be as rewarding, or more rewarding, than equity partnership at Big Law. By walking out the door and voting with their feet, women lawyers might be sending a message to large law firms that exceeds a message about individual preferences.

Both works make conservative assumptions about their readers’ worldviews. For Astell, the Christian religion is the commonly held orthodoxy; she expects her readers to understand and accept her assertions about the role of divinity in human life and the value of established religion in her culture. Therefore, Astell can pepper her work with rhetorical questions. Sharing a common cultural foundation with her readers, she can expect them to approve Astell’s implicit or explicit answers. For example, when she asks the big question, “What did we come into the World for?,” she does not expect her reader to argue with her answer: “to Prepare our selves and be Candidates for Eternal Happiness in a better [world]” (Astell, 1970, p. 67). Likewise, the ABA Report assumes that its readers share the large firms’ capitalist worldview. Its readers are assumed to view law firms as businesses and women lawyers primarily as economic assets generating wealth for the members of the firms.

However, despite these many similarities between the two works, one overriding distinction separates the two. Astell empowers women to solve their own problem, to improve themselves and their lives. Even when she is scolding them, the women addressed by Astell always maintain their dignity. The ABA Report rejects a role for women lawyers in solving the problem of toxic big-firm culture, insisting that it is up to men to change the culture of Big Law. While this approach may seem salutary because it relieves oppressed women from responsibility and places blame on the true wrongdoers, in reality this approach patronizes women. When viewed through the lens of Astell’s rhetorical practice, the myopia of the ABA Report becomes more understandable. Unlike Astell, who theorizes her audience, the ABA Report fails to acknowledge its audience. Although the report is designed to further the interests of women, its rhetoric moves them from the center of the discourse. The ABA Report exhibits a strong distrust of Big Law, blaming the problem of attrition on firms’ work culture. In another report from this series, the ABA recognizes that the gender and diversity initiatives at most large firms do not effectively advocate for the needs of female lawyers of color (Peery et al., 2020, p. 24). However, in determining a solution for the problem, the ABA Report focuses only on solutions that are decided on by that same firm management. For example, the report urges law firms to redouble the efforts they have already undertaken: “The data lead us to conclude that firms need to look anew, from broader perspectives, at setting targets and implementing policies and practices that actually achieve meaningful progress and results” (Liebenberg & Scharf, 2019, p. 16). Yet the report’s only specific suggestion is adoption of the so-called Mansfield Rule, an aspirational goal of 30 percent representation of women or ethnic minorities on firm committees (p. 19), which only 42 percent of experienced lawyers said was very or somewhat effective (p. 16). As envisioned by the ABA Report, large law firms thus play a double role of the oppressor and the savior whereby they are called on to rescue female attorneys from the very culture that the law firms have created.

Just as Mary Astell urged seventeenth-century women to “break the enchanted Circle that custom has plac’d us in” (Astell, 1970, p. 3), so large law firms should break out of the vicious circle of data, goals, targets, and policies. Unlike Astell, who argues for “a new vision of who and what women truly are and what they should see as their destiny” (Sutherland, 2005, p. 162), the ABA Report argues for maintaining the status quo. Ironically, now that women have become educated and have entered the public sphere, with few formal barriers to achieving the same professional goals as men, the ABA Report seeks to keep women in their place as traditional equity partners in traditional large law firms. But women lawyers who are walking out the door have an important message for Big Law that will be heard only if the focus shifts back to the women themselves. Their message cannot be heard if no one is listening.

13 Dissoi Logoi, Rhetorical Listening, and Legal Education

Elizabeth C. Britt ^*

13.1 Introduction

Law schools should teach students not just to think like a lawyer but to listen like a sophist. The connection between these two rhetorical capacities was made clear by Anne-Marie Slaughter (2002), then a professor at Harvard Law School, when addressing students who had just completed their first year:

You are now all well on your way to that magical state that is the end-product of your first year in law school: thinking like a lawyer. So what have we taught you? Thinking like a lawyer … means that you can make arguments on any side of any question. Many of you resist that teaching, thinking that we are stripping you of your personal principles and convictions, transforming you into a hired gun. On the contrary, learning how to make arguments on different sides of a question is learning that there are arguments on both sides, and learning how to hear them.

Although not always recognized as such, these are ancient ideas and tensions. Teaching students to argue on either side of a question was common among sophists but decried by Plato for distracting speakers and listeners from truth and justice. Today, this practice is a given in legal pedagogy, embedded in the case method itself (Sullivan et al., 2007, p. 186). Less prominent in contemporary legal education is a focus on hearing. Yet for the ancient Greeks, listening was a rhetorical art (Johnstone, 2009).

This chapter explores the anonymous sophistic text Dissoi Logoi (written about 400 BCE) as a way of emphasizing the need to educate future lawyers not just to argue but to listen. Sophists were traveling intellectuals who in the fifth century BCE taught rhetoric, politics, and ethics in the newly emerging democracies of Greek city-states. Through their teachings, sophists equipped citizens (free, native-born men) to participate in civic life, especially to speak in law courts, as there were no professional lawyers. Although the sophists were not a monolithic group, the overarching purpose of their pedagogy was “to demonstrate that the world could always be recreated linguistically, restated in other words, and thus understood otherwise” (Poulakos, 1994, p. 25). The world could always be “understood otherwise” because truth for the sophists was not certain and timeless but probable and contingent, something they learned through exposure to different cultures through travel.

The Dissoi Logoi illustrates the concept of “dissoi logoi” (or twofold arguments), an idea widely credited to the sophist Protagoras, but it also contains evidence of the sources of sophistic invention, namely listening to others. Like historian of rhetoric John Poulakos in his writing about the sophists, I seek less to arrive at fixed meanings of the Dissoi Logoi than to approach it as an “elusive” text that “can stimulate readers to rethink the constitution of their own lives” (Poulakos, 1994, p. 3). In particular, I connect the Dissoi Logoi to the contemporary notion of rhetorical listening – as theorized by Krista Ratcliffe (2005) – using appellate and North Carolina Supreme Court opinions in State v. Norman (1988 and 1989, respectively), a case about a woman convicted of voluntary manslaughter in the death of her abusive husband. State v. Norman is included in a number of criminal law casebooks, the compilations of opinions that dominate contemporary legal education. In the popular casebook analyzed in this chapter, editorial decisions thwart the efforts of readers to hear arguments on either side of this case. I use my analysis of this casebook to consider the possibilities for rhetorical listening in legal education more broadly. I argue that legal education should encourage students to listen rhetorically to the variety of materials they encounter – in casebooks and elsewhere – to hear not only the multiple voices present (and missing) from cases but also the voices framing them. My goal is to show how rhetorical listening can help law students and lawyers learn to avoid jumping to conclusions based on stereotypes, a prerequisite of cultural competence.

13.2 Dissoi Logoi and Rhetorical Listening

Dissoi logoi is both a concept and the name of a text. The concept is thought to have originated with Protagoras, although we have no text on the subject from Protagoras himself. Instead, as rhetoric scholar Edward Schiappa notes, a number of ancient Greek writers credit Protagoras with the idea “that there are two logoi in opposition about every ‘thing’” (Schiappa, 2003, p. 89). According to Schiappa, many translations reduce the idea “to the proposition that a debate is possible on any topic” (p. 90). These translations, he says, misinterpret Protagoras to be speaking narrowly about argumentative skills rather than more broadly about the relationship between language and reality, which he understood to concern the unity of opposites (p. 92). Protagoras’s notion of dissoi logoi, he argues, is more accurately a claim that “there are two opposing ways (logoi) to describe, account for, or explain any given experience” (p. 92). As historian of rhetoric Susan Jarratt explains, Protagoras understood dissoi logoi as the foundation for seeing experience as the only source of knowledge (Jarratt, 1991, p. 50). Fellow rhetoric scholar Poulakos elaborates, explaining that “Protagoras’ notion of dissoi logoi provides a worldview with rhetoric at its center … [T]his worldview demands of the human subject a multiple awareness, an awareness at once cognizant of its own position and of those positions opposing it” (Poulakos, 1994, p. 58).

Legal scholar Francis J. Mootz sees in dissoi logoi the foundations of a rhetorical knowledge useful for law. The concept advances the idea that while knowledge is not absolute and eternal, neither is it completely relative. Instead, it “emerges in the creative refashioning of linguistically structured symbols of social cohesion by members of the public” (Mootz, 2006, p. 39). For law, the implications are “pragmatic, epistemic, and ethical,” beginning with the idea that lawyering is comprised primarily of counseling clients and negotiating with other professionals (pp. 128–129). Legal scholar Eileen Scallen, who calls herself “a cheerful, unrepentant, out and proud, latter-day Sophist” (Scallen, 2006, p. 923), also values the sophists for their “contingent, but practical kind of truth,” evidenced by the Dissoi Logoi (Scallen, 2003, p. 819). She considers their pragmatic approach to conflict particularly useful for teaching advocacy, procedure, and evidence.

The text known as Dissoi Logoi, which appears incomplete, has no title in the original but is so named because of its opening words: “Two-fold arguments [dissoi logoi] concerning the good and the bad are put forward in Greece by those who philosophize” (Sprague, 1968, p. 155). Many scholars estimate its date at 400 BCE, about a decade or two after the death of Protagoras. The text was found appended to the manuscripts of Sextus Empiricus, first published in 1570, and compiled with other pre-Socratic fragments into a critical edition (published in Greek and German by Hermann Diels) in 1903. It has only relatively recently been available in English. It was first translated into English by Rosamond Kent Sprague in 1968, and the first extended scholarly discussion of the text appeared in the introduction and notes to T. M. Robinson’s English translation in 1979. As translated by Sprague, the text is about 5,400 words long.¹

The first four sections of the Dissoi Logoi are arguments about pairs of terms (good/bad, seemly/disgraceful, just/unjust, and truth/falsehood). For each pair of terms, the author first argues that their meaning depends on context (e.g., “death is bad for those who die, but good for the undertakers and gravediggers”) and then that their meaning is universal (e.g., “the good is one thing and the bad another, and … as the name differs, so does the thing named”). The fifth section concerns whether all things are the same or different. The final four sections address the teachability of virtue, the assigning of public offices by lot, the qualities of a good speaker, and the training of memory. Although scholars disagree on whether the text has a unified theme, Robinson (1979, p. 79) argues that all the topics cohere under the theme of participation in public life.

Because of its association with sophistic ideas, most scholars see the text as a pedagogical artifact, a compilation of lecture notes created by a speaker or listener (Kerford, 1981). Although the writer was dismissed by Diels in 1903 as untalented because of inconsistencies in the arguments and argument structures, Robinson (1996) argues that the text demonstrates full awareness of contemporaneous philosophical discussion. For this reason, Robinson sees the Dissoi Logoi as a “genuine teaching manual for sophists” (p. 32) that compels those reading or listening to assess the arguments for themselves.

What can the Dissoi Logoi teach contemporary lawyers and legal educators? To be sure, the text illustrates how to argue on both sides of a question, linking contemporary legal education and practice with the rhetorical tradition. What classicist Michael Gagarin writes about the practice of dissoi logoi for the sophists – that it helped students “to explore new ways of thinking about ethical, legal, and political issues” (Gagarin, 2002, p. 22) – is equally applicable today. More significantly, though, it demonstrates the contingency and cultural specificity of knowledge and helps us recuperate the neglected rhetorical art of listening to recognize that knowledge, a capacity sorely needed by practicing attorneys.

Many scholars in rhetoric have focused on the multicultural perspective evidenced by the text, particularly in a passage on the “seemly and disgraceful.” In this passage, the writer compares how pairs of cultures view the same practices, as in these two examples: “To the Spartans it is seemly that young girls should do athletics and go about with bare arms and no tunics, but to the Ionians this is disgraceful … The Massagetes cut up their parents and eat them, and they think that to be buried in their children is the most beautiful grave imaginable, but in Greece, if anyone did such a thing, he would be driven out of the country and would die an ignominious death for having committed such disgraceful and terrible deeds” (Sprague, 1968, p. 158). For rhetoric scholars Patricia Bizzell and Bruce Herzberg, the passage reflects the pan-Hellenism of the sophists, the idea that communities could unite “on grounds of a common recognition that humanity could express itself in many ways and was not subject to an absolute standard that could mark some ways for annihilation” (Bizzell & Herzberg, 2001, p. 25).

Although speaking more broadly about sophistic rhetoric rather than the Dissoi Logoi text in particular, Mootz emphasizes the value of the sophists for thinking about our own multicultural challenges in a 1998 book review of Beyond All Reason: The Radical Assault on Truth in American Law by Daniel Farber and Suzanna Sherry. Farber and Sherry critique the relativism of radical multiculturalism in the legal academy and argue for the possibility of finding objective truth. Although the authors do not explicitly reference ancient philosophy, Mootz (1998, p. 637) sees their argument as a reenactment of Plato’s attacks on the sophists, especially given their role as “professional provocateurs” in a society dealing with its own multicultural challenges. The radicals that Farber and Sherry critique (including critical race scholars, feminists, and queer theorists) are like the sophists, Mootz argues, in that they position rhetoric as a pragmatic alternative to philosophic discourse. Like Protagoras, these radicals do not embrace the idea that truth is chaotically and unpredictably relative but that it is created communally in discourse. Rather than “claiming that law is hopelessly irrational,” then, Mootz (1998, p. 639) maintains “that law often requires a reasonable judgment as between two or more logically acceptable resolutions of a given issue,” a lesson taught by the sophists through dissoi logoi.

The applicability of this multicultural perspective to our own moment seems clear. But how does one acquire it? The excerpt on “the seemly and the disgraceful” draws on cultural knowledge made available to the sophists through travel. In their search for students, the sophists were known for moving from city to city. Through encounters with potential students and others, they learned not only about various cultural practices but also the worldviews behind these practices. The sophists brought this knowledge along with them to each new city, using it to challenge the worldviews of students there. Like today’s ethnographers, the sophists probably learned through observing and listening to others. Speaking methodologically, then, one strategy of invention (the practice of coming up with arguments) evidenced by the Dissoi Logoi is listening. Its arguments are grounded in cultural knowledge only available through this practice. As Poulakos (1994, p. 58) explains, “in order to understand an issue, one must be prepared to listen to at least two contrary sides; and in order to decide how to act, one must espouse one of the two sides or come up with a third.”

Rhetorical theorist Krista Ratcliffe has recuperated listening as a practice rooted in the rhetorical tradition. Listening, she explains, was central to rhetorical training for 2,000 years but now runs a “poor, poor fourth” to reading, writing, and speaking, and is seen as “something that everyone does but no one needs study” (Ratcliffe, 2005, p. 18). By adding the term “rhetorical” to the word “listening,” Ratcliffe emphasizes two things: First, listening, like other rhetorical practices, must be learned and can be taught. Second, listening, like other rhetorical practices, helps us decide how to conduct ourselves in relations with others. She defines rhetorical listening as a “stance of openness that a person may choose to assume in relation to any person, text, or culture” (p. 1). Rhetorical listening isn’t something done just with the ears, although a person can take a rhetorical listening stance when encountering an aural text. Instead, it’s an attitude that functions primarily to foster communication across difference. Ratcliffe defines four “moves” of rhetorical listening that can be modeled, taught, and practiced. The first, which I focus on in this chapter, is “promoting an understanding of self and other” (p. 26).

To explain this move, Ratcliffe (2005, p. 28) inverts “understanding” to “standing under” our own and others’ discourses, or strands of thought that are at once individual, social, and cultural. When attempting to understand myself in this way, for example, I would identify the various discourses that I bring to encounters with other people or with texts. When attempting to understand others, I would listen not only for more legible discourses but also for “(un)conscious presences, absences, unknowns” (p. 29). In both cases, the idea is to let these discourses “wash over, through, and around us and then [let] them lie there to inform our politics and ethics” (p. 28). To see this move in action, consider this line from the section of the Dissoi Logoi on the seemly and disgraceful: “Egyptians do not think the same things seemly as other people do: in our country we regard it as seemly that the women should weave and work <in wool> but in theirs they think it seemly for the men to do so and for the women to do what the men do in ours” (Sprague, 1968, p. 158). As in other examples from the text, the listener has identified a strand of thought (here, what is seemly) in their own lives and in the lives of others. By identifying cultural assumptions about gender and work that often go unspoken, the listener is better prepared to engage ethically with others.

Similar moves to foster cross-cultural competence are receiving increasing attention in law schools, especially from faculty in clinical legal education. Most influential may be the five habits for cross-cultural lawyering developed by Susan Bryant and Jean Koh Peters (2005). The habits are designed to foster a nonjudgmental attitude and an ability to look “through the eyes and cultural lens” of another (Bryant et al., 2014, p. 350). “Attentive listening” is a component of the habits, aimed at helping students focus on the client’s interpretation of a problem (Bryant, 2001, p. 73). For Bryant and Peters, this work is done in skills-training classes, when students are working with real clients or in hypothetical client scenarios. But is there a way to move this work earlier, into doctrinal classes that form the core of legal education? After all, as Elizabeth Mertz explains in her 2007 anthropological study of legal education, the first year is hugely influential in shaping how lawyers learn to think. In particular, the method of reading taught in the first year emphasizes “layers of textual authority as neutral sources for legal decision making” (Mertz, 2007, p. 5) rather than ideologically freighted selections of reality. Because casebooks dominate legal curricula, students learn this method of reading primarily in their encounters with this genre.

13.3 Listening Rhetorically to State v. Norman

In the remainder of this chapter, I explore how students might gain cultural competence through learning to listen rhetorically to how a casebook presents the case of Judy Ann Laws Norman, a woman who had suffered decades of severe abuse and forced prostitution at the hands of John Thomas (“J.T.”) Norman. After a particularly brutal two-day period, Judy had shot her husband as he napped. Indicted for first-degree murder, Judy Norman was convicted of voluntary manslaughter and sentenced to six years in prison. The trial judge had admitted evidence pertaining to self-defense but denied Norman’s request to instruct the jury on that charge, instructing instead on first-degree murder, second-degree murder, and manslaughter. Judy Norman appealed based on that denial, and the North Carolina Court of Appeals found in her favor and remanded the case for a new trial (State v. Norman, 1988). The North Carolina Supreme Court disagreed, reinstating her conviction (State v. Norman, 1989). After serving two months and three days, Judy Norman was granted clemency by the governor and released (Ruffin, 1989).

At issue in the case was the definition of imminence: Only if Judy Norman reasonably believed she was in imminent danger at the time of J.T.’s death would she be entitled to an instruction on self-defense. In dissoi logoi terms, the Court of Appeals and North Carolina Supreme Court argued on both sides of this question: Did Judy Norman reasonably believe that J.T. Norman posed an imminent threat when she shot him? The Court of Appeals said yes. The North Carolina Supreme Court said no, despite recounting in their own opinion ample evidence of J.T.’s imminent threat to Judy, including testimony from expert witnesses and eyewitnesses to his abuse. The lone dissenter revisited this testimonial evidence, arguing forcefully that a reasonable juror would share Judy’s belief that danger was imminent. All three opinions are included in Joshua Dressler and Stephen P. Garvey’s popular casebook, Criminal Law: Cases and Materials (currently in its ninth edition, published in 2022), along with discussion questions and notes that frame them for the reader.²

Casebooks are the central genre of legal education, part of the case method developed at Harvard Law School in the late nineteenth century. Christopher Columbus Langdell, who is often credited as the originator of the case method and who created the first casebook, saw law as a science comprised of principles that could be extracted from appellate opinions (Stevens, 1983, p. 52). In the case method, professors focus on the language of these opinions in intense dialogue with students. To prepare students for these classroom discussions, faculty predominantly have students read opinions in casebooks, which usually compile them on a particular topic such as criminal law or contracts. For his own casebooks, Langdell chose cases based on how they contributed to the development of legal principles, while later authors chose cases that would help students understand legal process (Stevens, 1983, p. 56). The genre has evolved to include not only cases but also headnotes, discussion and study questions, and other materials designed to teach legal doctrine and procedure. Opinions themselves are often edited to narrow the reader’s focus on the concepts central to the pedagogical purpose.

Although not necessarily obvious to their readers, opinions and casebooks demonstrate the sophistic principle that the world can be “recreated linguistically.” In other words, the materials contained in them are not the actual world of conflict and resolution but representations of it embodied in language. These representations necessarily reflect and select certain realities while deflecting others.³ The opinions themselves are not trial transcripts; they are instead “highly edited and abstracted versions of events” (Sullivan et al., 2007, p. 55). (And, of course, trial transcripts are themselves removed from the real events the proceedings adjudicate.) Once included in casebooks, as Mertz (2007, pp. 52–53) points out, opinions are “recontextualized”; they are removed from their original contexts (bound reporters and online services) and placed into a new context “formed by other case excerpts, notes on cases, occasional excerpts from articles or books, and the casebook author’s commentary, typically bound together in a heavy book devoted to one area of law.” Listening rhetorically to casebooks can give readers a window onto how events in the world are being recreated and how they could have been otherwise. Using Ratcliffe’s first move, a reader can listen rhetorically to legal materials by “acknowledging the existence” of the various discourses as well as the “(un)conscious presences, absences, unknowns” (Ratcliffe, 2005, p. 29).

I offer the following focal points for using Ratcliffe’s first move of rhetorical listening with Dressler and Garvey’s treatment of Norman. First, we can pay attention to the multiplicity of voices within the text. We can listen to the Justices (including the dissenter), the trial court judge, and the casebook editors. We can listen to Judy Norman, to the police who testified, and to eyewitnesses who spoke about Judy’s life and her husband’s treatment of her. We can listen to the expert witness testimony and the psychotherapeutic discourses they represent. We can ask whose voices are missing. Second, we can pay attention to how we hear these voices. Which voices are included in some texts and not included in others? At what points are Norman’s words taken literally from the transcript of the trial? From the accounts of police officers? From her family members? What is the effect of these mediations? In the casebook, how do discussion questions or headnotes direct the attention to some things rather than others? How do these questions frame what we see? What has been edited out of the opinions (as indicated by ellipses or asterisks)? In which chapter is the case placed? Under what heading? What other cases sit before and after? How do these placements prime us to understand the case in a particular way? Third, we can pay attention to how different voices select facts and explain the same facts or concepts. For example, how does each characterize J.T.’s act of sleeping? Which of Judy’s acts are emphasized and which downplayed? How do the various legal experts explain “imminent” in relation to threat? How do they explain “reasonable” belief? Finally, we can pay attention to how discourses embodied within ourselves affect what we hear. What have I heard or seen about intimate partner violence? What explanations of intimate partner violence do I believe? How have my education and experiences taught me what to believe and value?

My analysis of Dressler and Garvey’s casebook in the following pages shows that their editorial decisions thwart the ability of readers to ask many of these questions about the opinions in Norman. However, I also demonstrate that readers can ask them about the casebook itself. To establish the context within which Dressler and Garvey are writing, I first turn to how legal scholars have consistently misunderstood Norman, drawing upon the work of legal scholar Martha R. Mahoney.⁴

13.3.1 Scholarly Misunderstanding and Misrepresentation of State v. Norman

Norman is widely cited in law review articles on criminal law and intimate partner violence.⁵ In a detailed analysis of this scholarship, Mahoney (2019, p. 677) argues that despite Norman being “one of the best-known cases in criminal law,” scholars have almost uniformly misunderstood and misrepresented the case in regard to intimate partner violence. Through their work, these scholars have accepted and perpetuated stereotypes of intimate partner violence rather than listening to the variety of voices in the opinions, including those of Judy Norman herself and expert witnesses who testified at her trial. In particular, Mahoney (2019, p. 705) argues that scholars have misunderstood the use of expert witness testimony on the psychological effects of abuse, seeing this testimony as providing evidence that a victim’s behavior cannot be understood as objectively reasonable. This misunderstanding stems from two quarters. First is confusion about the concept of “learned helplessness,” a term of art used in psychologist Lenore Walker’s theory of “battered woman syndrome.” Scholars have often taken the term to mean that victims of abuse become completely passive and submissive, essentially “learning to be helpless” (Mahoney, 2019, p. 705). Walker (2000, p. 116) has written that she intended the concept, borrowed from psychologist Martin Seligman, to mean that victims lose “the ability to predict that what [they] do will make a particular outcome occur.”⁶ Second is that Walker’s work (simplified and misunderstood as it is) has become entrenched in legal circles, even though current social scientific theories emphasize instead the coercive control of the abuser and the strategies that victims actively employ to mitigate abuse (Hamberger et al., 2017). As Mahoney (2019, p. 671) argues, “battered woman syndrome” in its most simplistic form has become a generic and widely accepted shorthand for expert evidence about intimate partner violence in legal practice and scholarship, with pathologizing results. When a woman who kills her abuser is seen as suffering from an abnormal psychological condition that makes her passive and unable to accurately perceive reality, scholars immersed in this framework thus overlook evidence of her active responses to ongoing violence, the actual threat posed by the abuser, and the possibility that reasonable observers would share her sense of imminent danger.

Mahoney focuses primarily on how scholars have evaluated Judy Norman’s perception of risk from her husband at the moment she killed him. If Norman had faced an imminent threat of death or great bodily harm, the judge should have instructed the jury on self-defense. Norman’s perception of the imminence of the threat matters; her perception could be deemed to be either reasonable or unreasonable. Mahoney (2019, p. 711) found that many scholars evaluated Norman’s perception through the lens of abnormal psychology because of the battered woman syndrome framework.

Yet, as Mahoney notes, the opinions themselves contain ample evidence that Norman’s perceptions were reasonable. The majority opinion from the North Carolina Supreme Court, which reinstated her conviction, explains that under the imminence requirement, deadly force can be used only as a “last resort” (State v. Norman, 1989, p. 261). Judy Norman, they write, “had ample time and opportunity to resort to other means of preventing further abuse” (pp. 261–262). Yet their own narrative recounts the multiple ways that Judy Norman had exhausted these means: She had left numerous times in the past and had always been found and beaten by J.T. as a result; she called the police the day before the shooting, but the police advised her to file a complaint, told her that they couldn’t arrest J.T. without a warrant, and left;⁷ she attempted suicide after the police left that same day, and as the paramedics attended to her, J.T. cursed her and told them to let her die; and she sought help from a mental health center and a welfare benefits office the day of the shooting, only to have J.T. threaten to kill her (pp. 256–258).

Furthermore, although the majority declared that J.T. had done nothing “immediately prior to his falling asleep” (State v. Norman, 1989, p. 262) that would show an imminent deadly threat from him, they describe him earlier in the day “threatening to kill and to maim her, slapping her, kicking her, … throwing objects at her” (p. 257), and putting out a cigarette on her torso. Judy Norman’s own testimony, included in their narrative, provides evidence of what she knew would happen when he awoke: “Asked why she killed her husband, the defendant replied: ‘Because I was scared of him and I knowed when he woke up, it was going to be the same thing, and I was scared when he took me to the truck stop that night it was going to be worse than he had ever been’” (p. 257). As related earlier in the opinion, J.T. had for years forced her into prostitution at the truck stop, beating her if she resisted. She was expecting him to traffic her after he woke up, as he always did,⁸ and the increased violence of the previous two days provided evidence that “it was going to be worse.”

Mahoney pays considerable attention to the discrepancies in how the various opinions and subsequent commentaries characterize the time of day that J.T. was asleep. She argues that although the Court of Appeals accurately portrayed his sleep as a “nap” in the late afternoon, with the police arriving to find him dead at 7:30 pm, the North Carolina Supreme Court and scholars have characterized J.T. as asleep at night, with one scholar even portraying the event as a “midnight shooting” (Mahoney, 2019, p. 681). Mahoney argues that these errors “reveal stereotypes about impaired perception in battered women” and highlight the stubbornness of scholarly interpretation: “How else,” she writes, “could ‘afternoon’ turn into ‘midnight’ without anyone noticing the change?” (p. 682).

The scholar who portrays Judy Norman’s killing of her husband as a “midnight shooting” is Joshua Dressler (2006, p. 468 n. 27), who not only included Norman in his casebook with Garvey but has written several articles on women who have killed abusers. Dressler is outwardly sympathetic to Judy Norman; in an article in which he devotes extensive discussion to her case, he argues that he would defend her using an autonomy theory, writing that she “possesses a moral – if you will, natural – right of autonomy, a right that J.T. Norman violated on a daily basis by his physically injurious conduct, which right entitled Judy to kill him to protect her autonomy” (p. 466). Dressler embraces this theory because he claims that “there is simply no basis” to believe that J.T. Norman presented an imminent threat either in reality or in the mind of Judy Norman (pp. 463–464). Yet Justice Martin, who dissented from the North Carolina Supreme Court’s decision, provides the basis that Dressler claims does not exist. Arguing that the doctrine of self-defense requires that imminence must “be grasped from the defendant’s point of view,” Justice Martin writes that testimony not only from Judy Norman but from other witnesses “could have led a juror to conclude that defendant reasonably perceived a threat to her life as ‘imminent,’ even while her husband slept” (State v. Norman, 1989, p. 271). To proclaim that “there is no basis” for arguments on one side of this question, as Dressler does, relies on stereotypes of intimate partner violence.

13.3.2 Thwarting Rhetorical Listening through Editorial Decisions

Stereotypes of any sort are harmful enough in scholarly articles. Unfortunately, Dressler and Garvey’s (2022a) editorial choices in Criminal Law: Cases and Materials reinforce these stereotypes and hinder the reader’s ability to listen rhetorically to the opinions so that they can come to a different understanding of Judy Norman’s reasonableness. Readers can, however, listen rhetorically to the casebook itself by paying attention to what the editors cut from the opinions and how they framed them through headnotes, discussion questions, and placement.

Dressler and Garvey include excerpted versions of all three Norman opinions (the appellate opinion, as well as the majority and dissenting opinion from the North Carolina Supreme Court). Dressler and Garvey’s edits make it difficult for students to assess Judy Norman’s reasonableness for themselves. Although opinions included in casebooks must be shortened by necessity, casebook authors must be aware of how their choices affect readers. Importantly, Dressler and Garvey’s choices direct students away from the actual question at issue between the appeals court and the North Carolina Supreme Court. Consider that the unedited opinion for the appeals court, which found in Judy Norman’s favor, begins the legal analysis with a summary of self-defense law in North Carolina (State v. Norman, 1988, p. 390):

In North Carolina a defendant is entitled to an instruction on perfect self-defense as justification for homicide where, viewed in the light most favorable to the defendant, there is evidence tending to show that at the time of the killing:

1. (1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and

2. (2) defendant’s belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and

3. (3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and

4. (4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.

Under this standard, the reasonableness of defendant’s belief in the necessity to kill decedent and non-aggression on defendant’s part are two essential elements of the defense.

Dressler and Garvey omit this material, starting instead with a sentence that appears a page later: “The question * * * arising on the facts in this case is whether the victim’s passiveness at the moment the [homicidal] act occurred precludes defendant from asserting * * * self-defense” (Dressler & Garvey, 2022a, p. 561). Coming at the beginning of their analysis, the court’s summary of the relevant self-defense law prepares the reader of the opinion to understand Judy Norman’s actions from her point of view. Omitting this summary, as Dressler and Garvey do, emphasizes instead J.T. Norman’s passiveness. The edited version also replaces the word “unlawful” with “homicidal,” a choice that seems unnecessary at best, given that the reader has just read an extensive description of the facts of J.T.’s death and so knows the nature of the act. At worst, it characterizes Judy Norman’s act in the most culpable terms possible, conflicting with the court’s ultimate decision to grant Judy Norman a new trial.

In another edit to the appellate opinion, Dressler and Garvey thwart readers from questioning different representations of J.T.’s act of sleeping. Although they retain the appellate opinion’s statement that “in the late afternoon, Norman wanted to take a nap,” Dressler and Garvey eliminate the time of day (7:30 pm) that the police had arrived at the Norman residence to find J.T. dead, reducing the possibility for students to question for themselves whether J.T. was asleep for the night.⁹ In the unedited version, the time of day was especially prominent, coming in the first lines of the fact statement, while the description of J.T. deciding to take a nap comes three pages later. Notably, the teacher’s manual also says that J.T. was “fast asleep” when Judy shot him (Dressler & Garvey, 2002b, p. 184), further influencing how instructors might frame the material for students. In the casebook, Dressler and Garvey also omit a crucial piece of the dissent. When explaining the evidence presented by the defense regarding whether Judy Norman believed she could escape J.T., the dissent had included the following testimony from a court-appointed forensic psychologist:

Mrs. Norman didn’t leave because she believed, fully believed that escape was totally impossible. There was no place to go. He, she had left before; he had come and gotten her. She had gone to the Department of Social Services. He had come and gotten her. The law, she believed the law could not protect her; no one could protect her, and I must admit, looking over the records, that there was nothing done that would contradict that belief.

(State v. Norman, 1989, p. 269 [emphasis added])

Not only does this expert highlight what Judy had actively done to leave, he also declares that he found nothing that she had overlooked. By omitting this part of the dissent, Dressler and Garvey (2022a) prevent students from seeing that the trial court’s own appointed expert had independently validated the reasonableness of her fear.

Dressler and Garvey’s (2022a) choices in framing the case reinforce stereotypes about intimate partner violence. The case appears in Chapter 9 General Defenses to Crimes, in a section on the “reasonable belief” requirement for self-defense. Dressler and Garvey’s recontextualization of the case relative to others prepares students to see Judy Norman through the syndrome framework: The case is given its own section called “Battered Women, Battered Woman Syndrome and Beyond” that follows a section about the reasonable belief requirement “in general” and the “reasonable person.” To be sure, all three opinions discuss Judy Norman’s situation in terms of the syndrome testimony presented at trial. However, both the appellate opinion and the North Carolina Supreme Court dissent see no contradiction between this syndrome testimony and the possibility that Judy Norman acted reasonably. Placing Norman into its own section primes readers to see Judy Norman’s behavior as outside the realm of reasonable.

Dressler and Garvey’s headnote to Norman reinforces this perception. Headnotes in the chapter are inconsistent; most cases have no headnotes, a few briefly explain a legal concept the case is meant to demonstrate, one directs students to an interview with the controversial defendant,¹⁰ and one (regarding a woman who killed her four children) contains just a short warning that it “is an emotionally difficult case to read” (Dressler & Garvey, 2022a, p. 678). The headnote for Norman jumps out in comparison. It features two items. First is a four-paragraph summary of the case of Francine Hughes, whose story was the basis of the book and TV film The Burning Bed. The summary describes the abuse that Hughes endured at the hands of her husband, as well as how she killed him by dousing him with gasoline while he was asleep and lighting the bed on fire. Hughes was acquitted after she pleaded “temporary insanity” (Dressler & Garvey, 2022a, p. 556). The second item in the headnote is a two-sentence summary of Lenore Walker’s book The Battered Woman, which names “battered woman syndrome” but does not define, contextualize, or historicize it (p. 556). This introduction simultaneously sensationalizes both cases and prepares the law student reader to understand Norman as being primarily about abnormal psychology. In the notes following the opinions, the only explanation of battered woman syndrome is taken from a 2004 judicial opinion (State v. Smullen, 2004) that misrepresents learned helplessness as “when, after repeated abuse, women come to believe that they cannot control the situation and thus become passive and submissive” (as cited in Dressler and Garvey 2022a, p. 571). The opinion also claims that battered woman syndrome explains “why the defendant, having been previously subjected to abuse, simply did not leave the home or take some other action against her abuser” (as cited in Dressler and Garvey 2022a, p. 571), an assertion at odds with research available at the time explaining both substantial obstacles to leaving as well as how often victims do leave only to be pursued and punished, often killed.¹¹ This description certainly does not accord with the facts of Norman; even the North Carolina Supreme Court majority opinion details how many actions Judy Norman took to keep herself safe, including leaving on multiple occasions only to be found, brought home, and beaten, and later attempting what legal scholar Marina Angel (2008, p. 70) calls the “ultimate exit, suicide.”

Dressler and Garvey’s discussion notes regarding imminence further shape the student’s perception of the case, leaving no room for considering the possibility that Judy Norman did face an imminent threat, even though arguments on both sides of this question frame all of the opinions. At the North Carolina Supreme Court level, the question of imminence is the primary question, with the majority arguing that because J.T. was asleep when he was shot, “there was no action underway by decedent from which the jury could have found that the defendant had reasonable grounds to believe … that a felonious assault was imminent” (State v. Norman, 1989, p. 262). In response, Justice Martin argues in his dissent that “‘imminent’ is a term the meaning of which must be grasped from the defendant’s point of view,” assuming that this belief “was reasonable in the mind of a person of ordinary firmness” (p. 271). He continues, writing that Judy Norman’s “intense fear” of grievous bodily harm or death, supported not just by her own testimony but by that of witnesses, “could have led a juror to conclude that defendant reasonably perceived a threat to her life as ‘imminent,’ even while her husband slept” (p. 271). Although the appeals court does not use the term “imminent,” they write that “a jury, in our view, could find that decedent’s sleep was but a momentary hiatus in a continuous reign of terror by the decedent [and] that defendant merely took advantage of her first opportunity to protect herself” (State v. Norman, 1988, p. 392). Despite the centrality of the issue of imminent threat to all of the opinions, Dressler and Garvey treat the question as settled. Rather than asking students to think through whether Judy Norman faced an imminent threat, they ask whether the imminence requirement should be abandoned. This omission reinforces the idea that Judy Norman’s perception can be understood only through the lens of abnormal psychology.

The teacher’s manual for the casebook reinforces this idea. Providing Dressler as a model for how to teach the case, the manual describes him starting his own class discussions with the question of whether the trial jury should have been instructed on self-defense without testimony on battered woman syndrome. The answer he provides for other instructors is short and clear: “Not under traditional standards, in which ‘imminent’ means (as defined here) ‘immediate danger, such as must be instantly met’” (Dressler & Garvey, 2022b, p. 183). In his own classes, he then asks students to consider whether Judy Norman would be entitled to this defense under the Model Penal Code (§3.04), which allows for the use of force when the defendant “believes that such force is immediately necessary.” For Dressler, these discussions should make it “clear that Judy Norman is not entitled to a self-defense instruction” without testimony about battered woman syndrome (Dressler & Garvey, 2022b, pp. 182–183). Dressler then turns to whether this testimony would help Judy Norman’s defense, directing instructors to a summary in the casebook itself of how courts currently treat expert testimony about battering. Although the trend in this testimony, according to Mahoney (2019, p. 572), is away from the pathologizing syndrome framework, the casebook inaccurately refers to this testimony as “BWS testimony” and “syndrome evidence.” The casebook explains that although courts routinely admit this testimony in “confrontational homicides,” they are divided about whether to admit them in “nonconfrontational” ones such as Norman. Labeling Norman a case of nonconfrontational homicide further reinforces the idea that Judy Norman’s assessment of the threat from J.T. was unreasonable.

My critique of Dressler and Garvey’s casebook has focused on the effects of their treatment of this case on readers’ understanding of Judy Norman’s reasonableness and, by extension, of intimate partner violence. After all, Judy Norman’s reasonableness is at the heart of the question of imminence about which contrasting arguments are made in the opinions. Yet Dressler and Garvey treat the question of imminence as settled, perhaps because the North Carolina Supreme Court settled it legally in this case. Understanding the law in this way is integral to the case method. Once decided, a case becomes part of the body of law from which principles can be deduced. Given the casebook’s focus on criminal law, the question of imminence in self-defense is a principle that Dressler and Garvey probably wanted to highlight. Seeing the question of imminence as legally settled by Norman, Dressler and Garvey might have imagined instructors using the North Carolina Supreme Court opinion to apply the principle of imminence to various hypothetical situations to determine, for example, whether imminence was definitely present, arguably present, or not present. Unfortunately, such a conversation would further reify the North Carolina Supreme Court’s definition of imminence rather than helping readers see this definition as the result of contested viewpoints, of dissoi logoi.

13.4 Implications for Intimate Partner Violence and Beyond

Stereotypes of intimate partner violence likely informed the North Carolina Supreme Court’s decision in State v. Norman. Although their opinion recounts facts that strongly support a conclusion that Judy Norman’s behavior was reasonable, the majority reached the opposite conclusion by relying on stereotypes of victims of intimate partner violence as passive and damaged. Through their editorial choices, Dressler and Garvey reinforce these stereotypes. These stereotypes are potentially hugely influential on future practice, especially considering that the vast majority of law students are exposed to legal treatment of intimate partner violence only through this casebook. Most of the students who encounter Norman in their criminal law classes will never take a seminar devoted to intimate partner violence or have other opportunities to think about how this widespread social problem might affect their clients. And because intimate partner violence affects a victim’s family life, employment, and financial affairs, lawyers in all areas of practice are likely to work with victims. At the very least, law students should not be misguided by outdated approaches that they are led to believe are current.

But the problem presented by casebooks goes beyond intimate partner violence. Although I have focused on the treatment of a single case in a single casebook, the casebook genre by definition recontextualizes its materials. All readers, students included, need to be aware of how this recontextualizing can frame their understanding. Readers can use rhetorical listening, especially its first move, to help recognize this framing. “Standing under” the discourses of a casebook means listening for both “(un)conscious presences, absences, unknowns” and legible discourses (Ratcliffe, 2005, p. 29). Becoming aware of asterisks (sometimes used in legal writing, as in Dressler and Garvey’s casebook) or ellipses can draw attention to absences, even if the reader does not compare the edited version in the casebook to the original, as I have done here.

To hear legible discourses in a casebook, readers can listen for the categories that a case has been placed into. At the broadest level, we hear the area of law covered by the casebook. For example, reading Norman in a criminal law casebook forces us to understand it in a different context than if we had read it in one on intimate partner violence. The case is framed by different questions and surrounded by different cases and commentary. As readers, we can also hear the placement of the case within the casebook. Listening to how Dressler and Garvey place Norman in their casebook, for example, makes psychotherapeutic discourse even more prominent than it is in the opinions themselves. Readers might not initially know what to make of this discourse, but Ratcliffe advises also listening to the discourses embodied within ourselves, with the goal of understanding how these discourses influence how we perceive the discourses of others. What are my assumptions about intimate partner violence, and where did they come from? What psychotherapeutic explanations for intimate partner violence have I heard before, and what do I think of them? Letting these discourses “wash over, through, and around us and then letting them lie there to inform our politics and ethics” (Ratcliffe, 2005, p. 28), we can come to see how Judy Norman’s actions have been further pathologized, as well as our own participation in (or resistance to) this pathologizing.

Readers of any casebook can listen for dissoi logoi. If the casebook presents only one opinion for a case, we can listen for how the opinion, as well as the headnotes and discussion notes, presents the central question and the answers to it. If the casebook contains dissents or lower court opinions that were reversed, we can ask ourselves the following: About what central question do the opinions disagree, and what arguments do they offer? Although the concept of dissoi logoi assumes a binary argumentative framework, we can also imagine other possible positions on the question by listening for “(un)conscious presences, absences, unknowns” (Ratcliffe, 2005, p. 29). For example, in Norman the opinions argue on both sides of the question of whether Judy Norman reasonably believed that J.T. Norman posed an imminent threat when she shot him. A third position on this question is that imminence should not be a universal requirement for self-defense. This position has been taken up by a number of feminist legal theorists who argue that the law of self-defense has been universalized from male experience, presuming the kinds of situations in which men typically use deadly force rather than those in which women do.¹²

13.5 Conclusion

The predominant lesson of the Dissoi Logoi – that rhetors should learn to argue on both sides of a question – is alive and well in contemporary legal education. This practice helps law students in an adversarial system develop the skills necessary to advocate successfully, such as identifying the strengths and weaknesses on each side and anticipating an opponent’s argument. But, as this chapter argues, the Dissoi Logoi offers other lessons, most importantly an awareness of the subjectivity of our own perspectives. If law students can learn that any issue can be seen from (at least) two sides, they can begin to see that there is no neutral position from which to observe and arrive at the truth. This recognition does not mean that truth does not exist. Instead, law students can learn that truth is created communally through the clash of discourse. They can recognize that rhetoric isn’t just a tool to be deployed but the means by which our world is created.

In this chapter, I have offered rhetorical listening as a way of hearing differing perspectives. As an attitude that one can take toward any discourse, rhetorical listening provides a foundation for challenging stereotypes and communicating across cultural divides. I have focused here on casebooks because they are the dominant genre in the first-year curriculum in American law schools. But law students need to learn to listen rhetorically to all of the materials they encounter throughout the curriculum to prevent jumping to conclusions, whether based on stereotypes, insufficient information, or the desire to solve problems quickly. Rhetorical listening, like other rhetorical skills, can be learned and taught. Law students need to learn not just to argue on both sides of a question but to listen for what they do not expect to hear.