Of Deism and Douglas Firs

Jessie Hill, Case Western Reserve School of Law, has published Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning over Time, in volume 59 of Duke Law Journal (2010). Here is the abstract.

Although the Supreme Court turned away an Establishment Clause challenge to the words “under God” in the Pledge of Allegiance in Elk Grove Unified School District v. Newdow, the issues raised by that case are not going away anytime soon. Legal controversies over facially religious government speech have become one of the most regular and prominent features of Establishment Clause jurisprudence – and indeed, a second-round challenge to the Pledge of Allegiance is currently percolating, which is likely to result in resolution by the Supreme Court.

That resolution will depend on an understanding of the social meaning of the practice at issue. This Article therefore addresses the constitutional analysis of “ceremonial deism” – brief official religious references such as the words “under God” in the Pledge of Allegiance, the national motto “In God We Trust,” and the city names Corpus Christi and St. Louis. Courts have generally stated in holdings and dicta that ceremonial deism is constitutional because such phrases have lost their religious meaning through passage of time or rote repetition. To examine this claim, this Article draws on one particular branch of linguistic theory, known as speech act theory, as it applies to the problem of change in meaning over time. Because speech act theory is particularly useful for analysis of social meaning, I argue that some insights about the problem of ceremonial deism may be found there, lending depth to a problem that has gone almost entirely untheorized by those who have espoused it so far. Finally, I consider the implications of this analysis for the constitutionality of such official religious references. Ultimately, while recognizing that meaning can change over time in some instances, I argue that courts should be skeptical of this claim and should instead adopt a rebuttable presumption of enduring religious meaning when confronted with constitutional challenges to instances of ceremonial deism.

Download the Article from SSRN here.

Law and Linguistics

Andrei Marmor, USC Gould School of Law, has published "What Does the Law Say? Semantics and Pragmatics in Statutory Language," forthcoming in Analisi e Diritto. Here is the abstract.

The content of communication in a given speech situation often goes beyond what the speaker has explicitly said. The main purpose of this essay is to explore this aspect of linguistic communication in the legal context. The paper begins with a general outline of the dividing lines between semantics and pragmatics, laying out the main distinctions that need to be employed. Next, the paper suggests that the pragmatic aspects of statutory language differ in some important ways from the pragmatics of an ordinary conversation. The paper explains some of these differences which make the understanding of legal language somewhat problematic. Finally, the paper points toward some solutions, based on the distinction between content that is semantically implicated by an utterance and content that is implicated conversationally.

Download the paper from SSRN here.

Rhetoric in Child Custody Decision Making

Linda L. Berger, Mercer University School of Law, has published "How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis of Metaphor, Narrative, and Imagination in Child Custody Disputes." Here is the abstract.

We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing "a sea-change," family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income.

This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, the article's aim is to help advocates make room for difference and diversity in the lives of families.

The rhetorical analysis indicates that the best interests of the child standard fails to explain child custody outcomes, and it suggests that the cognitive setting for custody disputes - cluttered with outmoded metaphors, simplistic images, and unexamined narratives - interferes with the ability of judges to attend to complex and radical transformations of parent and child relationships. The article proposes that practicing lawyers and scholars use rhetorical analysis first to uncover the symbols and stories that affect judicial decision making and then to construct arguments that may overcome deeply rooted constraints, help individual clients, and persuade policy makers.

Download the paper from SSRN here.