ARGUMENTATION AND ADVOCACY
36 (Winter 2000): 151-160
TEACHING ADVANCED SEMINARS IN LEGAL AND
BUSINESS ARGUMENT: SHARPENING THE
CRITICAL EDGE
Kathleen Farrell and David Hingstman
Undergraduate communication studies
courses in which students encounter legal
and business argument are a staple of many
curricula, and perennial favorites of students
who believe such courses will make them
more effective professionals. Time con-
straints and disciplinary reading practices
often limit discussion of legal and business
argument to descriptions of judicial decisions
and legal “rules” derived from them or case
studies of business decision-making and
public relations campaigns. Instructors reas-
sure themselves that law and business school
training will fill in the rest.
We take issue with the belief that under-
graduate exposure to legal and business
argument must be limited in this way.
Argumentation happens because public life
is a struggle over meanings, actions, atti-
tudes, and resources. We are constantly
confronted with the question of what things
mean, and of what, if anything, we should do.
While this has traditionally been most
obvious in political campaigns and policy
disputes, it is just as significant in law and
business—two of the most important arenas in
which our students will conduct their public
lives.
As de Tocqueville noted early in the
Republic’s history, Americans have always
placed a unique trust in the ability of courts
to mediate apparently intractable disputes.
Increasing disenchantment with electoral
politics has led many Americans to focus
ever more intently on courts as the best
Kathleen Farrell is an Associate Professor of Communication
‘Studies a the University of lowa. Dacid Hingstman is Assistant
Profesor of Communication Studies atthe University of Towa.
forum for debating and resolving the most
urgent political and social questions. As a
result, in an increasingly specialized, techni-
cal, and fragmented political world, the
courts are called upon to resolve a growing
number of argumentative controversies that
fall outside the traditional legal context. For
example, how shall our society work out the
proper relations between the races or the
sexes? What form of genetic, child-rearing,
or caring relationship defines “motherhood”
or “fatherhood?” What responsibilities do
corporations have to pay for the damages
their goods and services may produce and
under what conditions? Such questions are
defined, debated, and negotiated through
arguments by participants in the community
of legal discourse. And the peculiar phras-
ings developed through such activities as the
talk of due process, equal protection, funda-
mental rights, informed consent, and con:
structive notice diffuse themselves through-
out our public vocabularies, available to do
new work in very different contexts.
Similarly, the modern corporation by now
permeates almost every corner of modern
life, including government, the media, educa-
tion, and everyday family life. Political
campaigns and policy deliberations cannot
escape corporate influence. Neither can
health care, retirement decisions, gender
roles, parenting, the impact of technology on
human interaction, the stability and prosper-
ity of communities or the dignity and
fulfillment of workers at home and abroad.
Many argument teachers have chosen to
study communication processes and public
decision-making outside what we considered
to be the tainted world of business. But as152
LEGAL AND BUSINESS ARGUMENT
Deetz’s (1992, 1995) work compels us to
recognize, democracy, representation, free-
dom of speech and personal identity are
negotiated every day within the work environ-
ment. And the words that accompany corpo-
rate argument, the invocations of entrepre-
neurial risk-taking, free-market competitive
imperatives, customer and public relations,
profit. maximization, and quality control
frequently travel across disputational bound-
aries to other sites. The global challenges we
face in an ever-shrinking world are increas-
ingly the result of the complicated inter-
twined practices of both corporations and
nation-states.
Argumentation pedagogy that pays special
attention to law and business in more special
ized seminars, therefore, seems more than
justified for a number of reasons. First, peda-
‘gogy adheres increasingly to a view of commu-
nication not as given, but as a project that
must be taken up by each new generation of
students as they confront ethical and political
choices. Argument pedagogy that engages
students in understanding how legal and busi-
ness discourse communities make effective
decisions in the context of active struggles,
prepares them to enter a world in which
actors are called upon to decide among
alternatives that all appear to be good ideas,
or, more likely, to choose when none of the
available choices seems adequate. Second,
students will learn the skills of analysis and
advocacy best in the context of actual legal
and corporate decision-making. Finally, argu-
mentation pedagogy should pay special
attention to the concerns and strategies of
cultural criticism, understanding full well
that the insular expert examinations of legal
and business controversies cannot substitute
for understanding them in their larger social
and political contexts (Goodnight 1991).
The Legal Argument Seminar
Survey courses on law in which students
encounter legal argument are a perennial
WINTER 2000
favorite of undergraduates, whether offered
in classics, communication studies, history,
political science, sociology, or other disci-
plines. Such courses are offered under titles
like “Business Law,” “Constitutional Law
and Policy,” “English Constitutional His-
tory,” “Freedom of Expression,”
Criminology,” “Philosophy of Law,
man Law” and “Sociology of Law.” Time
constraints and disciplinary reading practices
often limit discussion of legal argument to
descriptions of famous legal controversies
and digests of judicial decisions and the legal
“rules” derived from them. The inclusion of
legal materials often serves merely as a
supplement to illustrate or exemplify the
interpretive principles or practical concerns
of an academic field. A line or series of
constitutional law decisions, for instance,
may be considered as a whole to illustrate
changes over time in the relationship among
the executive, legislative and judicial branches
of American government or the balance of
political forces between sovereign and sub-
ject. The judgments in a set of contract law
cases and a review of fair trade statutes might
be used to explain why an automobile dealer
must provide the customer with a written
description of the manufacturer's warranty
before transferring title of a new car.
Instructors in these courses are aware of a
problem that many students do not discover
until well after the term has ended. Students
often enroll in courses to discover how legal
arguments and judgments are made. But it is
unlikely that students will learn about “the
law” in the sense of a richer understanding of
how advocates and litigants argue within
legal institutions.
Many faculty in these survey courses do
not perceive this discrepancy between the
knowledge sought and the training given asa
problem. Those who have commented on
the issue offer at least two explanations. One
is that the survey course or seminar intro-
duces students to subject matters that will beARGUMENTATION AND ADVOCACY
taken up in more intellectually rigorous,
argument-sensitive ways in first-year law
school classes. The assumption is that those
students who truly want to learn about “the
law” will proceed to law school after finish-
ing their baccalaureate degrees. The under-
graduate courses thus contribute to legal
education by directing some students toward
further inquiry into legal issues who other-
wise might ignore legal matters and practices
as alien to their lives and interests.
A second view is that the survey course
instructor lacks competency to teach stu-
dents about legal argument. The assumption
here seems to be that competency in
argument is primarily a function of expertise
in the particular subject matter of the law. To
teach students how the advocates in hate
speech cases construct arguments about the
relationship between hate speech and free
expression, then, instructors must be able to
call upon an intimate familiarity with the
entire judicial conceptual repertoire. If the
teacher has not committed to near memory
the texts of decisions in cases like Chaplinsky,
Terminiello, Feiner, Cohen, and Gooding, as well
as the wealth of legal and philosophical
commentaries on these and other disputes,
how can she be sure that she is really
teaching students the right arguments? Better
to leave that task to the experts, the
constitutional law scholars who can bring
their long study of these issues to class
discussions in legal seminars.
We will take issue with these two perspec-
tives to the degree that they counsel that
undergraduate exposure to legal argumenta-
tion must be limited to the brief descriptions
of survey courses. We are concerned, ini-
tially, that these views tend to reinforce an
impoverished notion of argumentative prac-
tice that equates invention with discovery.
No matter when and where it occurs,
argumentation cannot “make do” with stan-
dardized products taken off the shelf and
repackaged for general consumption. Argu-
153
FARRELL AND HINGSTMAN
mentation cannot be separated from the
contexts of its occurrence without paying a
high interpretive price. For opponents often
challenge the very conventions of the forums
and sites in which they participate to expand
the scope of controversy. Such practices
generate new argumentative forms and strat-
egies which are carried along to other sites
and there blocked or further altered accord-
ing to the exigencies of those situations.
Nowhere is this more evident than in the
practices of legal argument. Richard Gas-
kins, for one, has studied patterns of advo-
cacy in the Warren Court cases associated
with expanding procedural due process
protections in the 1960s. Some have assumed
that these decisions simply created new sets
of constitutional rights that were modeled on
previously discovered protections, such as
freedom of speech or religion. But his
readings reveal that the due process revolu-
tion could not have occurred without persuad-
ing the Court to change the very procedures
by which those rights and interests were
considered in particular decisions. Gaskins
chronicles how liberals invented and de-
ployed arguments-from-ignorance about the
effects of arbitrary administrative decisions
on individuals to reverse the burdens of
proof and empower the Court to scrutinize
strictly federal and state agency rulings.
Furthermore, the burden-shifting strategy
was carried along into new contexts of
judicial action where it was made to serve
very different concerns and interests. In the
1970s and 1980s, conservatives appropriated
the argument-from-ignorance form to mask
judicial interest-balancing in the Burger
Court’s version of administrative agency
review (Gaskins).
To develop an understanding of argumen-
tation as process and procedure, students
must be exposed to oppositional strategies
that unfold within events or particular
controversies. A related concern produces
another response to those who would limit