Appellate court opinions are often criticized for establishing difficult precedent as a result of imperfect reasoning.This chapter, inspired by Giambattista Vico, explores the role that prerational judgment, embodied in the sensus communis, plays in the authoring of what will become unintentionally difficult precedent, using Schuette v. BAMN (2014) and its relevant precedent as an example. In Schuette the Court ruled that a voter-approved constitutional amendment that removed the power to implement affirmative action plans was not an Equal Protection violation. The chapter argues that in the opinions that preceded Schuette, the Court was accustomed to the evils the majority could undertake to preserve white dominance and maintain the status quo. Those Courts could not have anticipated the extent to which the future Court would understand that dynamic as a problem of another time. Further, it demonstrates how critics of that precedent similarly fail to account for the role of sensus communis in those earlier cases (and in their own appraisal of them) through their insistence that those opinions should have anticipated the controversies and the shifts in language that accompanied them.

At the core of corrective surveillance lies the excessive deficit procedure. This chapter employs theories of bargaining to explain the opening and continuation of this oversight and political economy theories of public spending to explain its consequences for national public finances. Whether a procedure is launched or concluded is shaped mostly by factors related to compliance, bargaining, and national pressures, such as past and expected fiscal performance, ideological positions of governments and commissioners, and public opinion in the surveilled country. As for the consequences of oversight, surveillance has significantly shaped national budgetary processes, counterbalancing the national pressures governments face when they set their fiscal policies. The impact of corrective surveillance offsets that of a two-year shortening of expected government duration, the addition of one party to a government coalition when debt is high, or a leftward shift in government ideology when the risk of replacement is low. Moreover, estimates from exact matching on treatment histories indicate that these effects peak after four to five years.

The introduction explains the notion of translation used in the book, distinguishing it from other uses of the term in disciplines such as geometry, biology, social sciences, philosophy of language and the performing arts. It suggests that rather than dwelling on translation problems, the activity should be considered as an opportunity to excel cognitively and creatively.

Introduces and elaborates a distinction between the ‘classic’ and ‘romantic’ perspectives. Contextualises the terms using Goethe’s idea of ‘world literature’. Draws out qualities such as the ‘Olympian detachment’ of the classic perspective and the temporality, self-awareness and will to action of the romantic perspective with right and left political hues. Explores prototypes both in and out of psychiatry and outlines how the perspectives will be used in the book.

This chapter explores the transformative power of learning on the brain, particularly focusing on musical engagement. Research demonstrates that music training influences both brain function and anatomy. Studies reveal pianists exhibiting enhanced brain responses to piano tones, musicians outperforming non-musicians in perceiving subtle pitch variations, and even short-term music lessons improving children’s reading skills. The chapter also highlights the impact of practice on brain structure. Professional musicians, for instance, show anatomical differences in auditory and motor cortices, with more pronounced changes linked to early musical training. These changes, primarily attributed to the formation of new neural connections, underscore the brain’s remarkable plasticity. The author proposes that exceptional skills arise from a combination of genetics, environment, and epigenetic changes. He emphasizes the importance of adopting a mindset of unconditional self-acceptance, as negative self-judgment can hinder the therapeutic benefits of music.

This chapter describes the traditional understanding of the nature of lawmaking by appellate courts in America. Often labeled as formalism, this conception of appellate court lawmaking is understood as being largely objective, highly logical, and fixed in nature. From this perspective, appellate judges were thought, while resolving specific disputes, to be also striving to develop and to refine the existing common law in a given jurisdiction so that it more and more came, over time, to accurately reflect a presumed ideal version of legal regulation. This activity was thought to be very similar in nature to the work of natural sciences when they seek to reconcile specific experimental results with current understandings and thereby move a field of science ever closer to an objectively correct account of the natural world. Accordingly, the ideal version of legal doctrine toward which formalist common law lawmaking aspired was commonly known as the natural law.

Integrating tradition in legal arguments remains an effective persuasive strategy, serving as a source of legitimacy and appeal, fostering the establishment of a shared identity between the speaker and the audience, and cultivating a sense of belonging to a distinct group with defined notions of its identity. This chapter examines the strategic utilization of the concept of tradition in forensic rhetoric. It investigates how communicators shape and influence discourse within forensic settings by leveraging enduring cultural norms, purported intentions and beliefs of esteemed historical figures, and narratives concerning a people’s historical trajectory. By examining cases from the popular courts of classical Athens and drawing parallels in contemporary American legal arguments, the chapter identifies instances where tradition serves as both a stabilizing force and a catalyst for innovation, and sheds light on the importance of tradition as a cornerstone of the rhetorical strategies of advocates on all sides of an issue, including those challenging the status quo. Consequently, the chapter contributes to a deeper understanding of the rhetorical functioning of tradition, offering insights into the intricate interplay between the construction of persuasive narratives grounded in tradition and legal concepts such as precedent, original intent, and legal interpretation.

This chapter investigates the policy’s ideational foundations by perusing economic theories and determining which would recommend its provisions. According to some scholars, austerity theories, based on Ricardian equivalence, rational expectations, and perfect capital markets, have inspired its design. For other scholars, these rules reflect neoliberal ideas in support of small government and rejection of Keynesian demand management. The chapter argues that these claims are unconvincing. Austerity theories suggest a diminished effectiveness of expansionary fiscal policies and would recommend looser oversight. Since 2005, policy provisions have accommodated business cycle fluctuations, major structural reforms, and public investments. There are no provisions about the size of governments. The chapter shows that these rules are designed to prevent negative cross-country externalities arising from expansionary fiscal policies adopted by authorities with short-term incentives to boost output at the expense of inflation. This reasoning is based on standard macroeconomic theories and the more realistic assumptions of fiscally illuded voters and policy- and office-seeking politicians.

We began this volume by describing it as a mosaic of theories and texts contributing tesserae – the small pebbles, stones, and glass that make up mosaics – to a larger picture of legal rhetoric. We are proud of the ways that this volume fills in a segment of this picture. First, the volume points to the richness of ancient texts. While much contemporary American legal thought relies on Aristotle, his work is often mischaracterized or simplified. The chapters by Mark Hannah and Jay Mootz on ethos (Chapter 2) and by Susan Tanner on the enthymeme (Chapter 5) challenge and complicate these received understandings. Other contributors illustrate the continued relevance of other figures of Greece and Rome – Brian Larson’s chapter on Cicero (Chapter 4), Vasileios Adamidis and Laura Webb’s chapter on the Attic orators (Chapter 3), and Beth Britt’s chapter on a text by an anonymous sophist (Chapter 13) – while Rasha Diab rereads early Arab-Islamic discourses on women’s rights (Chapter 9).

This chapter examines the role of enthymemes in legal argumentation, focusing on the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. It argues that while legal reasoning is often presented as syllogistic, it should instead be understood as operating through enthymemes, which allow for the strategic omission of premises and the incorporation of implicit assumptions. The chapter analyzes the enthymematic structure of the Dobbs decision, revealing how Justice Alito’s opinion employs unstated premises and narrowly defined categories to overturn Roe v. Wade while maintaining a veneer of logical consistency. The chapter concludes that acknowledging the rhetorical nature of legal argumentation is crucial for understanding the complexities and nuances of judicial decision-making and the interplay between logic, persuasion, and societal values in shaping legal outcomes.