Legal Writing

Legal Writing and DisciplinaryKnowledge-Building:A Comparative Study

Douglas M. Coulson*

I. IntroductionIn recent decades, many scholars have studied professional academic

writing in the disciplines to better understand how the textual practices ofdifferent disciplines reflect particular forms of knowledge-building activity.'Based on the work of philosophers in the Anglo-American and Continental

* Douglas M. Coulson 2009. Mr. Coulson is an Assistant Instructor in the RhetoricDepartment at the University of Texas at Austin, where he is also pursuing a Ph.D. in English.Before beginning his doctoral work at the Universit}' of Texas at Austin, Mr. Coulson receivedhis J.D. from Tulane Law School in 1999 and practiced business and commercial litigation inthe Houston Office of Kasowitz, Benson, Torres and Friedman LLP. This article arose out of aSpring 2008 graduate seminar in Reading, Writing, and Arguing in Academic Disciplines taughtby Davida Charney at the University of Texas at Austin. MJ:. Coulson would like to particularlythank Davida Charney for her generous support and thoughtful comments on this project bothduring and after the seminar, and would also like to thank Richard E. Coulson for his helpfulcomments and conversation regarding the article, Jamie P. Cooper for providing a helpfulcitation, and the two anonymous peer reviewers for their constructive comments on theoriginal publication manuscript.

^ See e.g. Charles Bazerman, Shaping Written Knowledge: The Genre and Activity of theExperimental Article in Sdence (U. Wis. Press 1988) [hereinafter Bazerman, Shaping WrittenKnowledge]; Tony Becher, Academic Tribes and Territories: Intellectual Enquiry and the Cultures ofDisciplines (Open U. Press 1989); Susan Peck MacDonald, Professional Academic Writing in theHumanities and Social Sences (S. 111. U. Press 1994); Richard Ohmann, English in America: A"Radical View ofthe Profession (Oxford U. Press 1976); Stephen Toulmin, Human Understanding: TheCollective Use and Evolution of Concepts (Princeton U. Press 1972) [hereinafter Toulmin, HumanUnderstanding; Charles Bazerman, What Written Knowledge Does: Three Examples of AcademicDiscourse, 11 Phil. Soc. Sei. 361 (1981) [hereinafter Bazerman, What Written Knowledge Does];Davida Charney, A Study in Rhetorical Reading, in Understanding Sentic Prose 0ack Selzer ed., U.of Wis. Press 1993); Jeanne Fahnestock, Rhetoric of Sence: Enriching the Disdpline, 14 TechnicalCommun. Q. 277 (2005); Jeanne Fahnestock & Marie Secor, The Rhetoric of Literary Critidsm, inTextual Dynamics ofthe Professions (Charles Bazerman & James Paradis eds., U. Wis. Press 1991);Christina Haas, Leaming to Read Biology: One Student's Rhetorical Development in College, 11 WrittenCommun. 43 (1994); David Kolb, Leaming Styles and Disdplinaty Differences, in The ModemAmerican College (Arthur W. Chickering ed., Jossey-Bass, Inc. 1981); Greg Myers, The SodalConstruction of Two Biologists' Proposals, 2 Written Commun. 219 (1985); Jane Rymer, SdentificComposing Processes: How Eminent Sdentists Write joumal Articles, in 2 Advances in Writing Research211 (David Jolliffe ed.. Greenwood Publg. Group 1988); Sharon Stockton, Writing in History:Narrating the Subject of Time, 12 Written Commun. 1 (1995); James E. Warren, IJterary ScholarsProcessing Poetry and Constructing Arguments, 23 Written Commun. 202 (2006); Laura Wilder, The"Rhetoric of Literary Critidsm" Revisited, 22 Written Commun. 76 (2005).

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hermeneutic traditions as well as the work of scholars studying howknowledge is generated in disciplinary communities, such studies have arrivedat a general consensus that the textual practices of professional academicwridng in the sciences and the humanities tend to occupy opposite ends of aknowledge-building continuum, the sciences more abstract and communal intheir knowledge-building activities, the humanities more particularistic andindividualistic, and the social sciences somewhere in the middle.^ This recentscholarship has not significandy studied legal writing, however, which hasreceived little rhetorical study from legal scholars themselves.^ During the last

2 See e.g. Bazerman, Shaping Written Knowledge, supra n. 1; Becher, supra n. 1; MacDonald,supra n. 1; Ohmann, supra n. 1; Toulmin, Human Understanding, supra n. 1; Bazerman, WhatWritten Knomtedge Does, supra n. 1; Kolb, supra n. 1.

3 See e.g. Peter Goodrich, Legat Discourse: Studies in Linguistics, Rhetoric and Legat Anatysis 1(Palgrave Macmillan 1987) ("Despite the glaringly obvious fact that both legal theory and legalpractice are, and have always been, heavily dependent upon the tools of rhetorical and Hnguisdcanalysis, no coherent or systemadc account of the relationship of law to language has ever beenachieved.") [hereinafter Goodrich, Legat Discourse]; Linda L. Berger, Applying New Rheioric to LegatDiscourse: The Ebb and Vlow of Reader and Writer, Text and Context, \')]. Leg. Educ. 155, 166 (1999)("Although legal reading processes have been studied, litde research has focused on legalwridng processes."); Chrisdne B. Feak, Susan M. Reinhart & Ann Sinsheimer, A PreliminaryAnatysis of Law Review Notes, 19 English for Specific Purposes 197, 198 (2000) (expressingsurprise to find "little relevant research" on the wridng of research or seminar papers in lawschools); Judge Alex Kozinski, Foreword, in Eugene Volokh, Academic Legat Writing: Law ReviewNotes, Seminar Papers, and Getting on Law Review 2 (2d ed.. Found. Press 2005) ("This book fills avoid in the legal literature . . . ."); Deborah L. Rhode, Legat Scholarship, 115 Harv. L. Rev. 1327,1327 (2002) ("On the reladvely infrequent occasions like this one, when we are explicidy invitedto discuss legal scholarship, . . .); Barbara J. Shapiro, Ctassicat Rhetoric and the Engtish luiw ofEvidence, in Rhetoric

162 Journai of the Association of Legai Writing Directors Vol .6

half century, legal studies has embraced the work of numerous otherdisciplinesincluding economics, political science, moral philosophy, literarytheory, Marxism, gender studies, cultural studies, cultural anthropology,structuralism, and poststructuralism, among others. Because of thisdisciplinary inclusiveness, the knowledge-building activities reflected in thetextual practices of legal writers present a particularly interesting andpotentially challenging subject for comparison with other disciplines.'' Suchcomparative studies are not only likely to increase our understanding of thediscipline-specific rhetoric of law,^ but may also contribute to the study of therelationship between professional writing and disciplinarity generally.

In this article, I examine Susan Peck MacDonald's recent study ofdisciplinary knowledge-building in Professional Academic Writing in the Humanitiesand Social Sdences and apply the methods used in her study and other studies ofprofessional writing in the disciplines to analyze a sample of law review andjournal articles involving a discrete legal question that is currently emerging inthe United States and internationally, specifically, how and when arbitrationmay be compelled in disputes involving nonsignatories to an arbitradonagreement. The purpose of this study is to identify the knowledge-buildingactivities of a discrete legal discourse community and to compare theknowledge-building activities of that community to the knowledge-buildingactivities of professional writing in other disciplines in order to identify theposition the law review and journal articles occupy on the disciplinaryknowledge-building continuum.^ In my conclusion, I also offer reflections onthe flndings of the study and its implications for the application ofinterdisciplinary studies to legal writing.

I I . The Disciplinary Continuum and LegalStudiesSusan Peck MacDonald's Professional Academic Writing in the Humanities and

Social Sciences, which received the Conference on College Composition andCommunication's Best Book Award in 1995, provides a useful starting pointfor a comparative study of the relationship between the textual practices and

Press 1990) and Roger W. Shuy, Language Crimes: The Use and Abuse of Language Evidence in theCourtroom lackwell 1993)).

'^ See Richard A. Posner, Legal Scholarship Today, 115 Harv. L. Rev. 1314, 1316 (2002)[hereinafter Posner, Legal Scholarship Today].

^ As Gerald Wedaufer has recendy noted, this may provide insight into importantfeatures of the law itself, including the law's "urge to reducdon and certainty," "the sufficiencyand consequences of our narradve pracdces," "how we lawyers consdtute ourselves throughour rhetoric," "the idiosyncradc ways in which we privilege certain academic disciplines whileshunning others and the further ways in which we transform those disciplines to which wegrant our attendon," as well as "important quesdons about legal pedagogj'." Wedaufer, supra n.3, at 1552-53.

"^ See MacDonald, supra n. 1 ; Fahnestock & Secor, supra n. 1 ; Wilder, supra n. 1.

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knowledge-building activities of professional acadeniic wridng in thedisciplines.'' MacDonald builds on tbe work of Anglo-American pbilosophersin the bermeneutic tradition, sucb as Tbomas Kuhn, Stephen Toulmin, andRichard Rorty, and on prior disciplinary studies by Cbarles Bazerman, TonyBecber, David Kolb, and Richard Obmann, all of whom focus on process andcommunity in tbe social construcdon of disciplinary knowledge.^ Tbe work ofthese scholars emphasizes the process by which a community of pracddoners"gives reasons for its choices, carries on negodadon and persuasion within thecommunity, and selects some problems and soludons as superior to otbers onthe basis of sbared disciplinary understandings."^ MacDonald claims that thisfocus enables us to understand "situadonal variadons in academic wridngmore clearly," but "only if we idendfy cohesive discourse communides."'"Accordingly, MacDonald concludes that case studies of discrete disciplinarysubfields are pardcularly useful to understanding how disciplinary knowledgeis constructed because by allowing us to "isolate discourse communides ofwriters wbo read, cite, and are influenced by each other's work," such casestudies increase the possibility of idendfying a working discourse community"rather tban merely an abstract 'community' that may have no consistentpatterns of common communicadon."'' MacDonald proposes that a focus onthe textual pracdces of such discourse communides provides greaterdescripdve power to discourse analysts, easier access for novices trying toenter the discourse of a community, better pedagogical metbods forprofessionals trying to inidate novices into a discourse community, and bettermethods for professional writers to reflect on their wridng pracdces thanwould a focus on philosophies, interpretadons, or concepts alone.'^

^ See generally Ellen L. Barton, Empirical Studies in Composition, 59 College English 815(1997) (reviewing MacDonald, supra n. 1, and related works); Book Kevieiv, 47 CollegeComposidon & Commun. 439 (1996) (reviewing MacDonald, supra n. 1).

8 See MacDonald, supra n. 1, at 13. For specific works studying the disciplinary continuumon which MacDonald bases her methodolog)', see Bazerman, Shaping Written Knowledge, supra n.1; Becher, supra n. 1; Toulmin, Human Understanding, supra n. 1, at 95 (discussing Oliver WendellHolmes, Jr.'s The Common l^w and Edward H. Levi's Introduction to I^gal Reasoning regarding thelegal reasoning of common law judges and noting that "we shall be characterizing the generalprocesses by which conceptual populations develop historically, in the same kind of way thatcommon-law historians have characterized the historical development o legal concepts"). TonyBecher builds on Charles Bazerman's work regarding universalism and particularism inacademic discourse, and both Bazerman and Becher build on Thomas Kuhn's conclusion in TheStructure of Scientific Revolutions that scientific knowledge is shaped by the interactions of membersof academic communities. See Bazerman, Shaping Written Knowledge, supra n. 1, at 4 n. 3; Becher,supra n. 1, at 10, 13-14; Thomas Kuhn, The Structure ofSdentific ^.evolutions ((U. Chi. Press 1962).

^ MacDonald, supra n. 1, at 13.low. at 13." Id at 13-14.2^ See id. at 7.

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To illustrate this approach to disciplinary knowledge-building,MacDonald analyzes the textual practices of professional academic wridng inthe disciplinary subfields of infant attachment psychology, colonial NewEngland social history, and Renaissance New Historical literary cridcisnn. Sheframes her analysis by initially posidng that the textual pracdces of academicdiscourse communides may be considered on a condnuum reflecdng thedegree to which the communities foreground their knowledge-building goalsand pracdces as reflected in the following text-level patterns of variadon:

variadons from disciplinary compactness to disciplinarydiffuseness,

variadons in explanatory versus interpredve goals, variadons from conceptually driven to text-driven in the reladon

between generalization and particular, and variadons in the degree of epistemic self-consciousness explicit in

the texts. 13According to MacDonald, these text-level patterns of variadon primarily

relate to the degree of pardcularism in the subject of inquiry, the humanidesbeing more concerned with pardculars and the sciences with abstractuniversals.i4 In the sciences, research areas are typically generated through asmall number of well-defined problems simultaneously pursued by a widearray of researchers with the goal of reaching a consensus, and MacDonaldcalls such problem-centered, communal inquiries of the sciences "compact,"compared with the "diffuse" disciplines of the humanides, in which scholarsmore often re-interpret and re-evaluate a reladvely discrete set of texts usingnew cridcal and historical lenses with the goal of reaching a wide range ofalternadve interpretadons.'^ According to MacDonald, researchers in thesciences also tend to provide general explanadons of phenomena comparedwith the more individualisdc interpretadons of the humanides."^ Further,because in the sciences researchers are generally guided by conceptual issuesrather than by phenomenal material such as texts, the sciences are more"conceptually driven" than the humanities, which tend "to be rooted inphenomena, data, or texts which are potentially worth knowing about for their

'3 M at 14, 21-22.^'^ See id nt 19, 25.1^ Id. at 22-27 ("Richard Ohmann has argued, for instance, that because science is

arranged in a hierarchy of theories linked to central questions, specialists may work upon verysmall parts of those problems for the sake of improving the generality and economy of theories.. . . Literar)' research, Ohmann argued, works on different principles because there is no systemof central principles by which to order and condense phenomenanor would literary scholarswant to do away with the complexit)' or uniqueness of literary works.") (citing Ohmann, supra n.1, at 9, 13); cf. Warren, supra n. 1, at 224 ("Rather than allowing the professional discourse todirect their research, these [literary] scholars said they jealously guard the originality of theirenquiries, only later considering how their results might fit into a body of existing knowledge.").

'^ i'ff MacDonald, supra n. 1, at 3236.


own sake."!'' Therefore, MacDonald proposes that the relationship betweenabstract conceptualizations and particular phenomena in the sciences and thehumanities may be diagrammed as, respectively, a triangle and an invertedtriangle, the sciences moving "down the ladder of abstraction from concept toparticular data" and the humanities moving from particulars "upward to abroadening set of abstract conceptualizations (the inverted triangle)."'^ Inaddition, the sciences reflect a high degree of what MacDonald calls"epistemic accounting," which refers to the use of language explicitly directedtoward the knowledge-building goals of a disciplinary community, by, forexample, explicitly idendfying the problem under study, prior research and thestate of the community's knowledge regarding the problem, and a sharedconceptual terminology compared to the more narrative or anecdotalapproach of the humanities.''

MacDonald first reviewed the articles in her study for these text-levelpatterns of variation, but also conducted an analysis of the relativeparticularism or abstraction of the nouns in the subject position of thesentences in the articles to compare with the text-level patterns of variation.^oBecause the text-level patterns of variation are created through language,MacDonald proposes that we should expect to find traces of these text-levelpatterns at the sentence level, and sentence-level differences havingconsequences at the text level, in a reciprocal relation.^' She argues that thecontinuum of particularism and abstract universalism in the knowledge-building activities of academic disciplines suggests forms of analysisparticularly suitable to the analysis of sentence subjects because the sentencesubject is "the syntactic element that creates a sense of agency; it is the mostimportant spot for determining what a writer is writing about and howquestions about epistemolog}', construction, or agency enter into the writer'sthinking," and decisions about how to represent agency become particularlycomplex in disciplinary contexts where there are numerous options for whoor what should be the focus of agency.22 Accordingly, MacDonaldquantitatively analyzed the appearance of sentence subjects containingphenomenal and epistemic referents and found that "taken together, thesesentence-level findings parallel the text-level tendencies: . . . the differingemphasis on negotiating knowledge claims within a research community andthe differing degrees of [generalization and] particularism." MacDonald claimsthis finding shows "some of the potential of this method for examining how

17 Id at 35-37.'^ Id. at 40, 45 ("[r]he particulars of literary texts are complex enough to enable divergent

abstractions to be built upon them," while infant attachment researchers "have been able toabstract 'attachment' from the complexity of phenomena in order to examine its role.").

19 ice ,V. at 12, 47-50.2 See id M 147.21 See id.22 Id. at 148-49,152 (emphasis in original).

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approaches to knowledge making may vary in ways that are parallel at text-and sentence-level."23

Since at least the late 1960s and early 1970s, if not before, legal studieshave embraced scholarship from both ends of the disciplinary continuumposited by scholars such as Toulmin, Bazerman, Becher, MacDonald, andothers, in a proliferation of "interdisciplinary" legal studies ranging from theapplication of literary theory to law by Law and Literature scholars, to theapplication of economics to law by Law and Economics scholars, to theapplication of the theories and methodologies of numerous other disciplines.^ '*Prior to this interdisciplinary trend, however, the task of "doctrinal" legalscholarship was, in the words of Richard Posner, simply to "extract a doctrinefrom the line of cases or from statutory text and history, restate it, perhapscriticize it or seek to extend it, all the while striving for 'sensible' results inlight of legal principles and common sense."^^ Although this form of legalscholarship, known as "doctrinal" to distinguish it from the "anti-doctrinal,"interdisciplinary variety, has significantly declined in prominence in the legalacademy in the wake of the interdisciplinary trend, it nonetheless remains aprevalent form of legal scholarship today in terms of the quantity ofpublication in articles, treatises, casebooks, and textbooks.^ Thus, in theleading law reviews more titles such as "The Constitutional Right to MakeMedical Treatment Decisions: A Tale of Two Doctrines," or "The KerrPrinciple, State Action, and Legal Rights," appear than titles such as "TheValue of Irony: Legal Orthodoxy and Henry James's Washington Square,"'^'^ andmany have claimed that interdisciplinary studies have even less influence on

23 Mat 169.2'* See Posner, Legat Scholarship Today, supra n. 4; see atso Richard A. Posner, Law and

Literature (rev. & enlarged ed., Harv. U. Press 1998) Piereinafter Posner, l^w and Literature].2^ Posner, Legat Scholarship Today, supra n. 4, at 1316; cf. Robert W. Gordon, Lawyers,

Schotars, and the "Middte Ground,"'iX Mich. L. Rev. 2075, 2080 (1993) ("Currently a good deal oflegal scholarship and teaching simply carries on the 'classical' project of trying to find a theorythat will effectively organize and rationalize the cases better than the official doctrine does.");Christopher D. Stone, From a Language Perspective, 90 Yale L.J. 1149, 1154 (1981) ("The baselevel [of legal scholarship], commanding the bulk of the energ)', aims at conventionalintellectual housekeeping: summarizing, unveiling common underlying elements, smoothingapparent inconsistencies and propounding advances and retreats, usually within modestbounds.").

2^ David A. Hollander, Interdisdptinaty Legat Scholarship: What Can We Leam From Princeton'sLong-Standing Tradition?, 99 Law Lib. J. 771, 774 (2007) ("Although the doctrinal method wasattacked as early as the 1880s (by Oliver Wendell Holmes, among others), it became thestandard of legal education and scholarship, and today remains, if no longer dominant, a largelyprevalent methodology."); Posner, LegalSchotarship Today, supra n. 4, at 1317, 1321; Rhode, supran. 3, at 1339.

27 Don Herzog, The Kerr Prindple, State Action, and Legat Rights, 105 Mich. L. Rev. 1(2006); Jessie Hill, The Constitutional Right to Make Medical Treatment Dedsions: A Tale of TwoDoctrines, 86 Tex. L. Rev. 277 (2007); Ticien Marie Sassoubre, The Vatue of Irony: Legal Orthodoxyand Henry James's Washington Square, 95 Cal. L. Rev. 1027 (2007).

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legal pracdce, so that Richard Posner is not alone in concluding that the long-term viability of interdisciplinary legal scholarship "depends on the ability ofthe practitioners of this scholarship to influence pracdce, rather than merelyto circulate their ideas within the sealed network of a purely academicdiscourse.''^

One example of such interdisciplinary legal scholarship, the Law andLiterature movement, began as a field of organized study in the 1970s, but didnot fully emerge as an interdisciplinary movement undl the 1980s.25 In 1973,James Boyd White invited his students "to see what the lawyer does as aliterary acdvity, as an enterprise of the imaginadon."30 The Law and Literaturemovement has since supported a wide range of scholarship on the importanceof narradve and oral forms of discourse, textual interpretadon, andcontextualizadon and empathy in law, leading "away from a view of law asformal, mechanized rule-making, and . . . instead toward all the possibilides,probabilides, ambiguides and doubts that life possesses."3' In addidon. Law

28 Posner, I^gal Scholarship Today, supra n. 4, at 1317; cf. Peter Brooks, NarrativeTransactionsiDoes the Law Need a Narratologf? 18 Yale J.L. & Human. 1, 2, 28 (2006) ("1 am notaware that all this story talk has made any difference to legal actors. . . . What [the 'law andliterature' movement] might better do, I believe, is demonstrate to legal studies that it hasanalytic instruments in its toolkit that might actually be of some use with the legal plumbing.");Mark Tushnet, l^gal Scholarship in the United States: An Overview, 50 Modern L. Rev. 804, 814(1987) ("|W]hatever is the case in legal theor)', by far the bulk of a practising lawj'er's workproceeds on the assumption that the stated legal rules are clear enough to justify a firmprediction about what is likely to happen," which suggests that the allied disciplines "face noinsurmountable barriers to expanding their role in law schools," but have "marginal applicationto legal practice.").

25 See Posner, Law and ljterature, supra n. 24; James Boyd White, The Legal Imagination (U.Chi. Press 1973); Julie Stone Peters, Law, Jterature, and the Vanishing Real: On the Future of anInterdisciplinary Illusion, 120 Publications Modern Lang. Assn. 442, 443 (2005). Although inidallyan American phenomenon, the Law and Literature movement has expanded to includesignificant British and European scholarship. See e.g. Michael Freeman & Andrew Lewis, l^wand Literature (Oxford U. Press 1999); Ian Ward, Law and Literature: Possibilities and Perspectives(Cambridge U. Press 1995); Melanie Williams, Empty Justice: One Hundred Years of Law, Jteratureand Philosophy (Cavendish 2002); Anne Simonin, Eloge de l'clectisme: Penser le Champ "Droit etUterature" a partir des listes de "Ugal Novels" (1900-1987), 37 Textyles 12 (2007). The EuropeanNetwork for Law and Literature was recently founded by a judge and law professor in theNetherlands and a literary scholar in Germany, Erasmus University Rotterdam, EuropeanNetwork for uiw and Uterature, http://www.eurnll.org/ (last accessed June 19, 2009), and theUniversity of Bergen recently founded the Nordic Network for Law and Literature, withpardcipants from legal and literar}' insdtutions in Finland, Norway, Sweden, and Denmark,NordForsk, Kett og lJtteraturLaw and Uterature, http://littrett.uib.no/index.php?lD=Nyheter&lang=Eng (last accessed June 19, 2009). European academic journals havealso prominently featured Law and Literature scholarship in special editions such as that of thejournal Cycnos of the University of Nice Sophia Andpolis, which published a special edidon on"DrvitetUttrature" in 2002. 19 Cycnos (2002).

2'' White, supra n. 29, at xix.3' Robert L. Hayman & Nancy Levit, Jurisprudence: Contemporary ladings, Proble/ns, and


and Literature scholars have advocated that because law is inherently involvedin the creation and interpretation of texts, legal writing may benefit from astudy of the literary imagination and the methods of literarj' criticism.32Applications of storytelling to legal argument have coalesced in the AppliedLegal Storytelling movement, which held its first conference in July 2007,^ 3and the Law and Literature movement has recendy expanded into the broaderdisciplinary formation of Law, Culture, and the Humanities, as scholars haverecognized that humanistically oriented legal studies share common interests.^ "*

In contrast to the more humanistic approach to law recognized by theLaw, Culture, and the Humanities movement, for centuries formalist legalscholars have approached law as a science, advocating precisely the sort of"formal, mechanized rule-making" activity that Law and Literature scholarshave critiqued. The key concept of legal formalism is the belief that judgesdeduce legal decisions from statutes, rules, and precedents by using formallogic, particularly syllogistic reasoning.35 Hans Kelsen is particularlyemblematic of this view, describing his Pure Theory of Law as "objectivistand universalistic," its aim

to conceive each individual Pegal] phenomenon in its systematiccontext with all othersto conceive in each part of the law thefunction of the total law. . . . [TJhe law is an order, and therefore alllegal problems must be set and solved as order problems. In this

Narratives 267 (West 1994).32 See e.g. id. at 268 ("Stotytelling is not limited to depictions of law in fiction, but instead

incorporates stories into law. In law rcwew articles and essays, legal books and speechesmedia previously characterized by a formal, objective style and depersonalized technicaldiscourseauthors are telling stories . . . ."); ]od R. Cornwell, Languages of a Divided Kingdom:Logic and Literacy in the Writing Curriculum, 34 John Marshall L. Rev. 49, 51, 75 (2000) ("LegalWriting must contribute to a new interdisciplinar)' study of law by cultivating literar)'imagination and incorporating interpretive methods of literary criticism," and "Legal Writingcourses, if they are to be taught well, must contain a strong element of literarj' criticism.");Wendy Nicole Duong, Law Is Law and Art Is Art and Shall the Two Ever Meet'? I^iv and IJterature:The Comparative Creative Processes, 15 S. Cal. Interdise. L.J. 1, 2 (2005-06) ("Law can benefit fromthe craft of the literary art, and can borrow therefrom."); Walker Gibson, Uterary Minds andJudial Style, 36 N.Y.U. L. Rev. 915, 915 (1961) ("[Cjertain terms and attitudes famiHar tomodern students of literature and language can be of direct and practical use to writers of legalcompositions."); Posner, Law and Literature, supra n. 24, at 266 ("It might not be the worstmethod of teaching legal writing to assemble an anthology of descripdons of legal doctrinefound in works of imaginadve literature."); Richard A. Posner, I^w and Literature: A RelationReargued, 72 Va. L. Rev. 1351, 1392 (1986) ("[B]ecause . . . [law] is a technique ded to thecreation and interpretadon of texts, the practice of law can gain from sympathedc engagementwith Literature.").

33 See e.g. Brian J. Foley, Applied Legal S toty telling, Politics, and Factual Realism, 14 Leg.Wridng 17 (2008).

3'' See Peters, supra n. 29, at 451.35 See Hayman & Levit, supra n. 31, at 11; Chaim Perelman, Law, Logic, and Epistemologf, in

Justice, luiw, and Argument (William Kluback trans., D. Reidel 1980).


way legal theory becomes an exact structural analysis of posidvelaw, free of all ethical-poUdcal value judgments.'"'

Similarly, many English and American jurists have approached law as ascience, including Edward Coke, Francis Bacon, William Blackstone, JamesKent, Joseph Story, John Ausdn, and Christopher Columbus Langdell.^''Indeed, formalism has been a perennial impulse in legal history, leading tosuch grand systemadc statements of the law as Jusdnian's Institute.! andBlackstone's Commentaries, influencing generadons of jurists.3**

Accordingly, for purposes of studying the disciplinary knowledge-building acdvides of legal discourse, it may be useful to consider the Law,Culture, and the Humanities movement as representadve of the humanidesand to consider legal formalism as representadve of the sciences on thedisciplinary knowledge-building condnuum proposed by scholars such asToulmin, Bazerman, Becher, MacDonald, and others. In proposing thiscomparison, however, it is important to recognize that important disdncdonsexist between the formalist approach to law as a science and the empirical andlogical sciences.^' A jurist does not observe physical phenomena like anempirical scientist or verify the truth of normative propositions through

36 Hans Kelsen, Pure Theory of Law 191-92 (Max Knight trans., U. Cal. Press 1989); see alsolain Stewart, The Critical Ugal Science of Hans Kelsen, 17 J. L. & Socy. 273 (1990).

37 See Stephen M. Feldman, American I^gal Thought From Premodemism to Postmodernism: AnIntellectual Voyage 52 (Oxford U. Press 2000); Hayman & Levit, supra n. 31, at 12; Richard T.Bowser & J. Stanley McQuade, Austin's Intentions: A Critical Reconstruction of His Concept of l^galScience, 29 Campbell L. Rev. 47, 82 (2006); Howard Schweber, The "Sence" of Ljigal Science: TheModel of the Natural Sences in Nineteenth-Century American I^gal Education, 17 L. & F-Iist. Rev. 421,421-22,426-28(1999) .

38 See Daniel J. Boorstin, The Mysterious Sence of the Law: An Essay on Blackstone'sCommentaries Showing How Blackstone, Employing Eighteenth-Century Ideas of Sence, Religion, History,Aesthetics, and Philosophy, Made of the Law at Once a Conservative and a Mysterious Sence 3 (BeaconPress 1941) ("In the fourteen centuries since Jusdnian's Institutes, Blackstone's Commentaries arethe most important attempt in western civilization to reduce to short and rational form thecomplex legal institudons of an endre society. And Jusdnian's role in the recepdon of the civillaw in western Europe was Blackstone's in the recepdon of the common law in America."); seealso Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of lagalOrthodoxy 10 (Oxford U. Press 1992) ("Ever)' complex legal system presents a structure ofclassificadon and categorizadon that reveals many of its dominant concerns and points oftension and contradicdon."); Mattila, supra n. 3, at 7 ("Legal research science goes back to Romeand, as to research methods, to ancient Greece. This involved creadng a conceptual system oflaw, which presupposes clarifying connecdons between concepts."); cf. Bowser & McQuade,supra n. 37, at 82 ("Legal scholars should assist the legal enterprise in shaping a genuine legalscience, the order of nodons of the law using forms apt for law itself.").

39 See Norberto Bobbio, The Sence of Law and the Analysis of language, in La' and language:The Italian Analytical School 22, 35 (Zenon Bankowski, Simona Sdrling & Anne Pirrie trans.,Deborah Charles Publicadons 1997) (noting "the long standing disquiet jurists have always feltin comparing their own inquiry' with what, at different dmes, has been acknowledged asscience").

170 Journal ofthe Association ofLegal Writing Directors Vol. 6

experience. Instead, according to legal formalists, the truth value of legalpropositions lies in their correspondence to "certain ethical principlesaccepted as criteria to regulate acdon in a particular society."'"' Unlike theempirical and logical sciences, legal scholars "are not attempting to describean allegedly objective reality, and most of them are not even attempting todiscover real meanings embedded in authoritative texts," but instead their goalis "to address prescriptions to public decision-makers.""*' What formalistjurisprudence has in common with the sciences is not empirical methods orformal logic, but the critical function of constructing a rigorous language ofwell-defined terminology and rules for the use of language, such thatjurisprudence becomes "essentially an analysis of language, more precisely ofthe language through which the legislator expresses himself throughnormative propositions."''^ For this reason, many legal scholars havecompared legal theory to linguistics, a "system of norms conceived as agrammar of legal validity,"'*^ and Peter Goodrich has even argued that modernformalist jurisprudence parallels the development of formalism in modernlinguistics.'*'* Bearing these distinctions in mind, however, these posidons

'*l Edward L. Rubin, The Practice and Discourse of Legal Scholarship, 86 Mich. L. Rev. 1835,1854 (1988); cf. Lloyd L. Weinreb, Legal Reason: The Use of Analoga i" Legal Argument 141(Cambridge U. Press 2005) ("There are a number of reasons to reject so doctrinaire (if not,indeed, mechanical) a view of the judicial function, not least its tendency to treat theprescriptive content of the law and the descriptive statements of science as equivalent.");Bobbio, supra n. 39, at 35 ("It is precisely because these propositions are normative, that is, theyregulate future behavior and do not represent something that has already happened, that theyhave a purely ideal rather than an actual truth.").

''^ Bobbio, supra n. 39, at 35, 37-38 ("We can see how it is possible to move from aconception of science as a means of getting at the truth to one which aims at a systematic andrigorous reordering of concepts for practical ends. Legal research on property can be describedas rigorous when all the rules which we consider necessary in order to be able to use the wordhave been established."); cf. Feldman, supra n. 37, at 53 ("To American jurisprudents, law was ascience because, most important, it was a rational system of principles."); Comwell, supra n. 32,at 70 ("Legal language . . . maintains a comparatively high level of abstraction, and connotes ascientific method.").

'^ ^ Goodrich, Legal Discourse, supra n. 3, at 39; see also Bobbio, supra n. 39, at 36, 41, 43("|L]egal analysis is conducted within the narrowly circumscribed limits of a particular language.The rules of transformation are determined in advance, independently of the jurist's will. This is.what we mean when we say that legal language is a closed language."); Cornwell, supra n. 32, at70 ("To the formalist, the objective quality of the rule of law depends upon the propertranslation of a human conflict into legal concepts which then determine judgments as a matterof formal relations within a larger system of concepts, all represented, however imperfectly, inhuman language."); George P. Fletcher, The Grammar of Criminal I^w: American, Comparative, andIntemationaNol I, 8 (Oxford U. Press 2007).

'*'' See Goodrich, Legal Discourse, supra n. 3, at 35; but cf. Bernard S. Jackson, Making Sense inJurisprudence 127 (Deborah Charles Publications 1996) (noting that Jean Piaget's interpretation ofKelsen emphasizes dynamic features of Kelsen's thought in contrast to Goodrich's emphasis ofstatic features and concluding that both interpretations are "eminently debatable").


within legal studies provide useful analogues for purposes of comparingvarious forms of legal wridng to other forms of academic wridng on theknowledge-building condnuum posited by scholars such as Toulmin,Bazerman, Becher, MacDonald, and others in their studies of the disciplines.''^

I I I . The Articles StudiedFourteen rdeles published between 1995 and 2007 in various law

reviews and law journals in the United States were selected for this study andare listed in Appendix A. I selected the rdeles because they consdtute adiscrete disciplinary subfield of legal scholars addressing a newly emerginglegal quesdon, specifically, how and when arbitradon may be compelled indisputes involving nonsignatories to an arbitradon agreement, including issuesrelated to muldpartj' and class arbitradons. Because the rdeles all examine thesame newly emerging legal quesdon, they are pardcularly well suited tocomparing the disciplinary knowledge-building acdvides of a discrete legaldiscourse community with the knowledge-building acdvides of variousdisciplines studied previously. Most of the rdeles in the sample providebiographical informadon on their authors, who are primarily acdve legalpractitioners employed in law firms, government agencies, or legalindustry organizations,''^ but also include two law professors,'''' two law

''^ Cf. Hayman & Levit, supra n. 31, at 267 ("At one end of the spectrum are textualists,who suggest that legal texts have stable meanings, which afford litde or no room for theinfusion of any personal values of the interpreter. Texts, according to this view, are capable ofonly a narrow range of possible legidmate interpretadons. At the other extreme are those whoargue that texts, and perhaps all utterances, are subject to various indeterminacies of meaning.Some of these theorists contend that no objecdve meaning resides within texts, but thatmeaning is manufactured significandy or exclusively by the interpreter. In the middle are thosewho maintain that there are some social, contextual, and linguistic constraints oninterpretadon."); Paul W. Kahn, The Cutturat Study of Law: Keconstnicting -.egal Schotarship 23 (U.Chi. Press 1999) (discussing the "dialecdc of the abstract and the pardcular" in legalscholarship).

'"' See Michael H. Bagot, Jr., & Dana A. Henderson, Not a Party, Not Bound? NotNecessarily: Rinding Third Parties to Maritime Arbitration, 26 Tul. Mar. L.J. 413 (2002); Michael F.Hoellering, Consotidated Arbitration: Witt It Resutt in Increased Effidency or an Affront to PartyAutonomy, 52 Dis. Res. J. 41 Qan. 1997); James M. Hosking, Non-Signatories and IntemationatArbitration in the United States, 20 Arb. Ind. 289 (2004) [hereinafter Hosking, Non-Signatories andInternational Arbitration]; James M. Hosking, The Third Party Non-Signatory's Abitity to CompetIntemationat Commerdat Arbitration: Doing justice Without Destroying Consent, 4 Pepp. Dis. Res. L.J.469 (2004) [hereinafter Hosking, The Third Party Non-Signatory's Abitity to Compel)-, Carolyn B.Lamm & Joceyln A. Aqua, Defining the PartyWho Is a Proper Party in an International ArbitrationBefore the American Arbitration Assodation and Other International Institutions, 34 Geo. Wash. Intl. L.Rev. 711 (2002-03); Jan Vmhson, Arbitration Without Privity, 10 ICSID Rev. 232 (1995); John M.Townsend, Nonsignatories and Arbitration: Agency, Atter Ego, and Other Identity Issues, 3 ADRCurrents 19 (Sept. 1998); Dwayne E. Williams, Binding Nonsignatories to Arbitration Agreements, 25Fran. LJ. 175 (2006).

''^ See Anthony M. DiLeo, The Enforceability of Arbitration Agreements By and AgainstNonsignatories, 2J . Am. Arb. 31 (2003); Bernard Hanodau, Probtems Raised by Complex Arbitrations

172 Journai of the Association of Legai Writing Directors Vol. 6

and one Ph.D. candidate with a prior J.D.'*^ The articles varywidely in length, with the shortest a nnere four pages^ ^ and the longest a book-length 159 pages.5' I also selected five of the articles as a representativesubsample for purposes of conducting a quantitative analysis of their sentencesubjects according to the methodology used by Susan Peck MacDonald inProfessional Academic Writing in the Humanities and Sodal Sdences.^'^ The fivearticles in the subsample not only cover a range of dates and authorsrepresentative of the sample as a whole, but a comparison of their text- andsentence-level features with those of the other articles in the sample indicatessufficient similarity for purposes of the study.

IV. Methods of AnalysisI began the study by reviewing the entire sample for the text-level

patterns of variation in disciplinary knowledge-building that Susan PeckMacDonald identified in Professional Academic Writing in the Humanities and SodalS dences based on the earlier work of Thomas Kuhn, Stephen Toulmin, CharlesBazerman, Tony Becher, and others. I then analyzed the nouns in the subjectposition of all of the sentences in the subsample following MacDonald'smethod of analyzing sentence subjects for purposes of comparison with thetext-level patterns. MacDonald classifies sentence subjects into two generalcategories: phenomenal subjects, which consist of "the material that theresearcher studies," and epistemic subjects, which consist of "the methods,conceptual tools, and previous research that the researcher brings to bear onthat material."^ -^ She further subdivides the phenomenal category into

Class 1 ("Particulars"), referring to specific people, places, orobjects, usually named individuals;

Class 2 ("Groups"), referring to generalized or grouped nouns;and

Class 3 ("Attributes"), referring to the attributes, properties,action, behavior, or motivations and thoughts of the nouns inClasses 1 and 2.

Involving Multiple ContractsPartiesIssues, 18 J. Intl. Arb. 251 (2001).^^ See Michael P. Daly, Student Author, Come One, Come All: The New and Developing World

of Nonsignatory Arbitration and Class Arbitration, 62 U. Miami L. Rev. 95 (2007); Jeff DeArman,Student Author, Resolving Arbitration's Nonsignatoty Issue: A Critical Analysis of the Application ofEquitable Estoppel in Alabama Courts, 29 Cumb. L. Rev. 645 (1998-99).

'''' See Matteo M. Winkler, Arbitration Without Privity and Russian Oil: The Yukos Case Beforethe Houston Court, 27 U. Pa.J. Ind. Econ. L. 115 (2006).

^^ See Charles l^ee Eisen, What Arbitration Agreement? Compelling Non-Signatories to Arbitrate,56DS. Res.J.40(|uly2001).

^' See Hanodau, supra n. 47.2^ The subsample includes Daly, supra n. 48; DiLeo, supra n. 47; Townsend, supra n. 46;

Williams, supra n. 46; and Winkler, supra n. 49.53 MacDonald, supra n. 1, at 157.

Fall 2009 Discipiinary Knowiedge-Building 173

She further subdivides the epistemic category into Class 4 ("Reasons"), referring to "all-purpose abstractions and

words used in reasoning such as 'reasons,' 'argument,' 'evidence,''significance,' or 'findings' ";

Class 5 ("Research"), referring to scholars in the field, whethergeneralized or named;

Class 6 ("Isms"), referring to schools of thought such as Marxismor Historicism; and

Class 7 ("Audience"), referring to subjects like the generalized"we" and "one" or "you."54

I applied MacDonald's classifications to my analysis of the sentence subjectsin the subsample. As MacDonald herself is careful to point out, theseclassifications are not intended to be evaluative, nor are they intended to beends in themselves, or self-explanatory, but instead serve as "points ofdeparture for identifying and then interpreting patterns that would otherwisebe obscured by differences in content or similarities in syntax," for identifying"representational choices rather than underlying truths."^^

In order to compare the conclusions reached by using MacDonald'smethodology with the conclusions that might be reached using the methodsof other studies of professional academic writing in the disciplines, I alsocompared the articles in the sample to studies published by Jeanne Fahnestockand Marie Secor in 1991 and Laura Wilder in 2005, which identified the formsof argument that most frequently appeared in literary criticism.56 In theclassical rhetoric tradition, commonly used lines of argument, or "structurallypredictable elements" used in argument, are referred to as topot, and thoseapplicable to unique rhetorical situations, known as "special lopoi" refer tospecific lines of argument that both invoke the shared assumptions of adiscrete discourse community and simultaneously create that community.^ ^Based on this theory of the special topoi of discrete discourse communities.

See id at 158.

^^ Fahnestock & Secor, supra n, 1; Wilder, supra n. 1.5^ Fahnestock & Secor, supra n. 1, at 84; see also Wilder, supra n. 1, at 84. See generally

Aristotle, RJjetoric 1358" (W. Rhys Roberts trans.. Modern Lib. 1954); Michael H. Frost,Introduction to Classical I^gal Rhetoric: A I^st Heritage 27 (Ashgate Publg. 2005). Similarly, in TheUses of Argument, Stephen Toulmin introduced the technical terminolog)' of a "field ofarguments," in which the data and conclusions of two or more arguments are of the samelogical type, and describes the standards for evaluating arguments as field-dependent when theyvar)' from one field to another. Stephen Toulmin, The Uses of Argument 14-15 (Cambridge U.Press 1958) [hereinafter Toulmin, The Uses of A/gument\. In addition, Toulmin referred to thestandards for drawing conclusions from particular data as "warrants," noting that "the data wecite if a claim is challenged depend on the warrants we are prepared to operate with in thatfield, and the warrants to which we commit ourselves are implicit in the particular steps fromdata to claims we are prepared to take and to admit." Id. at 98100.


Fahnestock, Secor, and Wilder identify the following special topoi of literal^'argument based on their study of articles published in the field of literarycriticism:

(1) "Appearance/reaHty," in which a critic argues for a dualism in aliterary text, "the perception of two entities: one more immediate,the other latent; one on the surface, the other deep; one obvious,the other the object of search";^^

(2) "Ubiquity," in which a critic claims to have found something ina literary text that no one else has seen, "and to find iteverywhere";^'

(3) "Paradox," in which a critic seizes upon the "unification ofapparently irreconcilable opposites in a single startling dualism";o

(4) "Contemptus mundi" in which a critic assumes an aspect of"despair over the condition and course of modern society";'''

(5) "Paradigm," in which a critic elucidates a structure in a literarytext that provides form to otherwise congruent verbal concepts, "akind of template fitted over the details of a literarj' text to endowthem with order";'^2

(6) "Social justice," in which a critic seeks in an assumed connectionbetween a literary text and the world certain avenues toward socialjustice through advocating social change;''^

(7) "Mistaken critic," in which a critic argues that previous criticshave repeatedly overlooked some aspect of a literary text;'''' and

^^ Fahnestock & Secor, supra n. 1, at 84-85.^' Id. at 87 ("[George] Wright, [in '[-lendiadys and Hamlet,'] finds the same rhetorical

figure, hendiadys, everj'where in Hamlet (66 times to be exact) as well as precisely countedappearances of it in other plays.").

''" Id. ("Carr and Knapp notice that Zoffany's portrayal of MacBeth and Lady MacBethdepicts them as they 'both advance toward and recoil from each other, their mutual attractionand antipathy held at equilibrium . . . .' ").

'>! Id at 88.''2 Id. at 89 ("All articles that find an Oedipal complex in a particular short stor)', or a

Jungian archet)'pe in a drama, or Lacanian 'others' every-where, apply macroparadigms.").''^ Wilder, supra n. 1, at 99 ("For Burton, Faulkner's Compsons exemplify failed readers as

well as failed lives from whose experience we can profitably learn . . . .").'^''/i/. at 101.

Fall 2009 Discipiinary Knowledge-Building 175

(8) "Context," in which a critic presumes that previously overlookedhistorical details should he brought to bear on the interpretation ofa literary

I applied Fahnestock, Secor, and Wilder's definitions of these special topoi ofliterar)' argument to my analysis of the topoi in the sample to determine if thewriters in the sample employed any of these forms of literary argument.

V. Analysis of the Text-Level Patterns ofVariation and Sentence Subjects in theSampleOn the text level, the articles in the sample reflect highly compact,

explanatory, and conceptually driven patterns of variation with a highepistemic accounting. The articles primarily attempt to distill conceptuallyclear formulations of legal rules and doctrines from a variety of legalauthorities that have addressed the arbitrability of disputes involvingnonsignatories in response to a dramatic recent increase in nonsignatoryarbitrations both domestically and internationally, including growing numbersof multipart)' and class arbitrations.'^'^ Anthony DiLeo, for example, claimsthat "a significant part of the case law addressing these questions has beendecided in the past three years," and

the purpose of this review is to discern principles from a number ofthe key decisions addressing these issues under both federal andstate law, and to distill rules of applicability so that practitioners can

^^ Id. at 104 ("Albrecht justifies his paradigmatic application of Kenneth Burke's work toRalph Ellison's by stating that these two writers knew each other and admired each other'swork.").

'''' See Bagot & Henderson, supra n. 46, at 414 ("We write because maritime lawyers . . .should be forewarned."); Daly, supra n. 48, at 33 ("The implications and ramifications of such ascenario refiect real questions and concerns facing the international arbitration community today .. . ."); DiLeo, supra n. 47, at 33 ("PQmportant judicial opinions continue to add to the body of lawon this question."); Hanotiau, supra n. 47, at 302 ("In a great number of cases, national courts andarbitral tribunals have been confronted with the issue of whether . . . ."); Hosking, Non-Signatoriesand Intemational Arbitration, supra n. 46, at 289 ("Far from being merely theoretical, the questionsraised by the aforementioned scenario are in fact highly relevant to the contemporary practice ofinternational commercial arbitration."); Hosking, The Third Party Non-Signatory's Ability to Compel,supra n. 46, at 475 ("[BJroader approaches imperil the continued credibility of internationalarbitration . . . ."); Lamm & Aqua, supra n. 46, at 711 ("The number of international arbitrationsoccurring under the auspices of the American Arbitration Association (AAA) has increaseddramatically . . . ."); Paulsson, supra n. 46, at 25456 ("We are witnessing an explosive proliferationof texts seeking to provide legal security for investments across borders. . . . It is dramaticallydifferent from anything previously known in the intemational sphere. It could presage an epochalextension of compulsory arbitral jurisdiction . . . .").

176 Journal ofthe Association of Legal Writing Directors Vol. 6

appropriately advise clients as to the drafting of agreements andpleadings.^ ^

Almost all of the articles identify and analyze a common set of legal theoriesthat apply to the nonsignatory problem (e.g., agency, estoppel, alter ego/veilpiercing, incorporation by reference, and assumpdon),^^ immediately andexplicidy frame the problem studied in their introduction with virtually nonarrative or anecdote,'^ ^ and meticulously cite the prior law and scholarly

''^ DiLeo, supra n. 47, at 33 (emphasis added); cf. Townsend, supra n. 46, at 19 (indicatingthat his aim is "to distitt general rules for predicting how . . . cases will be resolved") (emphasisadded).

^^ .'tee Bagot & Henderson, supra a. 46, at 436 (discussing agency, estoppel, alter ego/veilpiercing, incorporation by reference, and assumption); Daly, supra n. 48, at 98-102 (discussingincorporation by reference, assumption, veil piercing/alter ego, equitable estoppel/third-partybeneficiary, and assignment/succession); DeArman, supra n. 48 (discussing third-part)'beneficiary and equitable estoppel); DiLeo, supra n. 47, at 33-34 (discussing alter ego/corporateveil piercing, incorporation by reference, assumption by conduct, equitable estoppel, agency,successors in interest, and third-party beneficiary); Eisen, supra n. 50 (discussing alter ego orveil-piercing, incorporation by reference, assumption, agency, and equitable estoppel);Hanotiau, supra n. 47 (discussing representation and agency, third-party beneficiar}', estoppel,and incorporation by reference); Hosking, Non-Signatories and Intemationat Arbitration, supra n. 46(discussing assignment, incorporation by reference, third party beneficiar)', agency,estoppel/equitable estoppel, and the "group of companies" doctrine); Hosking, The Third PartyNon-Signatory's Abitity to Compet, supra n. 46, at 482 (discussing incorporation by reference,assumption, agency, veil-piercing/alter ego/group of companies doctrine/consortium/jointventure, estoppel, assignment, novation, succession by operation of the law, subrogation, andthird party beneficiar)', and concluding that the factual criteria necessary to extend an arbitrationagreement to nonsignatories were "already indicative of well-recognized legal doctrines");Lamm & Aqua, supra n. 46 (discussing veil piercing, alter ego, agency, assumption, andestoppel); Townsend, supra n. 46 (discussing incorporation by reference, assumption byconduct, third-party beneficiary, agency, equitable estoppel, and piercing the corporate veil oralter ego); Williams, supra n. 46 (discussing incorporation by reference, assumption, agency, veil-piercing/alter ego, and estoppel).

^'^ With only two limited exceptions, the first sentence of each article either identifies theproblem studied or a conceptual principle of law as a prelude to identifying the problem. See e.g.Hosking, Non-Signatories and Intemationat Arbitration, supra n. 46 ("For many years arbitrationpractitioners have grappled with the problem of what to do with a 'non-part)'' or moreparticularly a 'non-signator)'' . . . ."); Lamm & Aqua, supra n. 46 ("The number of internationalarbitrations occurring under the auspices of the American Arbitradon Association (AAA) hasincreased dramatically over the past few years."); Townsend, supra n. 46 ("While an arbitrationagreement may require the parties to arbitrate disputes within the reach of the agreement, it isnot always apparent who those parties are."); Williams, supra n. 46 ("When a franchise-relatedagreement contains a mandatory arbitration clause, the scope of the clause may present a criticalthreshold issue . . . ."). Cf. Feak, Reinhart & Sinsheimer, supra n. 3, at 20405 (noting that of thefort)' law review notes studied, all published in 1993 in the Michigan Law Review, Stanford LawReview, and Cotumbia I^aw Review, only 29% opened with narratives such as hypothetical, stories,or discussions of cases, while 45% opened with discussions of an act, law, or legal principle andtopic generalizations).


commentary on the problem in voluminous footnotes. Like whatMacDonald called the "external exigency" in infant attachment psychologyarticles,''' the articles in the sample foreground a problem-centered,conceptually driven, and explanatory approach to their subject rather than afocus on phenomena, data, or texts. This reflects that what is at stake in thearticles is "causal explanadon within their disciplinary discourse," a featuremore characteristic of writing in the sciences than in the humanities.^^

Perhaps not surprisingly, the vast majority of the sentence subjects in thesubsample consist of references to legal materials such as laws, judicialopinions, and legal theories, and to individuals who advance legal argumentsor state binding legal opinions, such as legislators, judges, arbitrators, pardes,and scholarly commentators. Because the former type of sentence subjectslegal materials such as laws, judicial opinions, and legal theoriesconsist ofreasons, evidence, or flndings reladng to specic legal conclusions, I dassifledthem as Class 4 ("Reasons") subjects according to MacDonald's sentence-subject classiflcadons. Because the latter type of sentence subjectsindividuals who advance legal arguments or state binding legal opinionsfuncdon as references to researchers in other disciplines, I classifled them asClass 5 ("Research"). Representadve examples are listed in Table 1.

''^ The average number of footnotes in the sample is 178, ranging from 24 footnotes inEisen, supra n. 50, to 548 footnotes in Hosking, The Third Party Non-Signatory's Ability to Compel,supra n. 46.

^' MacDonald, supra n. 1, at 57.72 Id at 55.


Table 1: Examples of Common Sentence Subjects in theSample

Class 4: Reasons

"Section 2 of the Federal ArbitrationAct ('FAA') dec la res . . . ""CD Partners, LLC v. Gri^i^le. ..i l lustrates. . ."

"Equitable estoppel is usually used

"This body of federal substantive lawis enforceable . . . "

"These theories of contract andagency law affirm . . . "

". . . agency theory should apply . . . "

"The doctrine of incorporation byreference is probably the leastcontroversial. . ."

". . . well-settled principles ofcommon law dictate . . ."

" . . . the question of arbitrability isreserved to the courts . . . "

"Agency logic has been applied . . . "

Class 5: Research

"The 2nd Circuit found . . . "

"The court reasoned . . . "

"Conflicting early authoritiessuggested . . . "

". . . most federal courts of appealhave determined . . . "

"The McCarthy court noted . . . "

"Other courts have differed as to

". . . one dissenting member of thecourt would have applied . . . "

". . . the court interpreted agencytheory s t r i cdy . . . "

". . . the court employed a two-stepanalysis . . . "

"The buyer argued t h a t . . . "

The predominance of these two types of sentence subjects in thesubsample refiects an ongoing conversation among a community of juristsregarding commonly identified legal problems that unite their discourse, afeature more characteristic of the disciplinary compactness of the sciencesthan the disciplinar}' diffuseness of the humanities.''^ The articles in the samplefrequendy cite and critique the legal arguments and opinions of legislators,

^^ See e.g. Daly, supra n. 48 (citing eight other articles in the sample and other scholarlycommentaries); Hanotiau, supra n. 47, at 253 n. 1 (citing thirty-five scholarly commentaries inthe first footnote, including Townsend, supra n. 46); Hosking, Non-Signatories and InternationalArbitration, supra n. 46, at 290 (noting that "perhaps reflecting an increased awareness of thisissue, there is a growing body of commentary on the topic," and citing six other articles in thesample and other scholarly commentaries); Hosking, The Third Party Non-Signatory's Ability toCompel, supra n. 46 (citing seven other articles in the sample and other scholarly commentaries);Lamm & Aqua, supra n. 46 (citing three other articles in the sample and other scholarlycommentaries).


judges, arbitrators, parties, and scholarly commentators interchangeably,sometimes even those from foreign jurisdictions,^'* and it is noteworthy in thisregard that some legal scholars have commented on the similarity between thediscursive methods of doctrinal legal scholarship and judicial opinions.Edward Rubin has noted, for example, that doctrinal legal scholars "tend tothink of themselves as judges, and to speak Hke judges,"^^ believing they are"engaged in a joint enterprise with the judiciary, and that their role [i]s to assistjudges in their interpredve task."'"' Similarly, Richard Posner has noted thatdoctrinal legal scholarship is generally "aimed squarely at the profession atlarge, particularly judges and lawyers,"^^ and Geoffrey Wilson has commentedthat law schools have never had a monopoly on legal scholarship, much ofwhich occurs in the daily work of law)'ers:

It is the function of counsel in their preparation and presentation oftheir cases to develop arguments which are themselves the productof and contributions to legal scholarship, even when they are notsuccessful in the pardcular case. Although new developmentsappear as judicial decisions they may often be the result of theacceptance of a version of the law put forward by counsel and it isclearly at the point when counsel is preparing a case that there is thegreatest stimulus to the thinking in the context of the facts ofpardcular cases that lies at the heart of English law-making.''^

The rdeles in the sample foUow this model of a joint enterprise amonglegislators, judges, arbitrators, pardes, and scholarly commentators, refiecdngthe sort of disciplinary compactness which, as MacDonald describes, "can

"^^ See e.g. DiLeo, supra n. 47, at 46 ("The defendant sole shareholder affirmatively assertedthat he was the alter ego of the signatory' corporation and thus had the right to compelarbitration."); Hosking, The Third Party Non-Signatory's Ability to Compel, supra n. 46, at 479 ("Untilrecendy, the only broad-ranging discussion of non-signatory' issues occurred at two conferences. . . . " ) , 540 ("There has been a sea change of opin ion and atti tude as exemplified by the 1979Act in England , the 1982 and 1999 a m e n d m e n t s in H o n g K o n g and the adop t ion of the mode llaw in H o n g K o n g and o ther jurisdictions . . . . " ) , 563 ("[CJourts and arbitrators haveincreasingly marginalized these concerns ." ) ; L a m m & Aqua , supra n. 46, at 716 ("U.S. courtshave adop ted a view in s t rong consensus with the A A A and o the r arbitral inst i tut ions . . . . ") ;Paulsson, supra n. 46, at 250 ("This is a dramatic step, and one that runs counte r to thesovereign-rights ideology that has characterized the past discourse of a n u m b e r of States thathave n o w signed the Energy Char ter Treat) ' ."); Williams, supra n. 46, at 177 ("Other courts havediffered as to the reach and force of these precedents .") .

''5 Rubin, supra n. 4 1 , at 1859.

76 Ji/. at 1861.

77 Posner , I^gal Scholarship Today, supra n. 4, at 1320.

78 Geoffrey Wilson, English Ugal Scholarship, 50 Mode rn L. Rev. 818, 8 3 4 - 3 5 (1987)("Nor is the cont r ibut ion of law)'ers and judges confined to the role they play in litigation. Legalscholarship is being pursued every day in the chambers of counsel and in the offices of firms ofsolicitors, whether in the giving of advice or the creation of new forms, or in the course ofnegotiat ions with the Inland Revenue , or discussions with clients.").

180 Journal ofthe Association of Legal Writing Directors Vol. 6

only result from lengthy, sustained attendon to the sanie problems by anextensive group of researchers who collect data in the same conceptuallydriven manner and build on, refine, and dispute each others' work."'''

The results of the sentence-subject analysis of the subsample are listed inTable 2. The results reflect a highly disproportionate breakdown of 76.4%epistemic subjects and 23.6% phenomenal subjects. As in MacDonald's study,these results confirm the compact and epistemic features visible on the textlevel. It is apparent from these results that the writers in the sample mainlytalk ahout the methods, conceptual tools, and prior findings of other juristsregarding the nonsignatory problem, not about phenomena, data, or textsworth knowing for their own sake. The Class 5 ("Research") categorypredominates, with 38.2% of all sentence subjects, closely followed by theClass 4 ("Reasons") category', with 37.6% of all sentence subjects, reflecting aclose examinadon of legal authorides and their findings as well as thecontroversies and conflicts among them in an effort to refine well-developedlegal theories to meet new circumstances. As MacDonald notes of the textualpracdces in sciendfic disciplines, "the criteria for deciding what counts asevidence, for classifying behavior . . . , and for accepdng or refudng otherresearchers' explanadons are all driven by the top-level theories in the field,"and the frequent appearance of epistemic subjects in the subsample refiects asimilarly heavy emphasis on epistemic self-consciousness.^o

5^ MacDonald, supra n. 1, at 67; cf Toulmin, Human Understanding, supra n. 1, at 95(comparing the processes of conceptual development in the sciences to the development oflegal concepts by common law judges).

80/at 71.

Fall 2009 Disciplinary Knowiedge-Buiiding 181

Table 2: Distribution of Sentence Subjects in theSubsample (by percentages)

PhenomenalClasses

Class 1:Particulars

Class 2:Groups

Class 3:Attributes

EpistemicClasses

Class 4:Reasons

Class 5:Research

Class 6:IsmsClass 7:Audience

Townsend(1998)

1.4%

15.0%

0.0%

16.4%

31.4%

50.7%

0.0%

1.4%

83.5%

DiLeo(2003)

13.8%

7.5%

0.2%

21.5%

21.2%

51.1%

0.0%

72.5%

WilUams(2006)

3.0%

24.9%

1.0%

28.9%

36.7%

34.3%

0.0%

0.0%

71.0%

Winkler(2006)

8.9%

7.6%

1.8%

18.3%

58.7%

23.1%

0.0%

0.0%

81.8%

Daly(2007)

1.1%

16.7%

11.4%

29.2%

40.6%

28.5%

0.0%

70.9%

Connbined

6.8%

13.9%

2.9%

23.6%

37.6%

38.2%

0.0%

0.6%

76.4%

The epistemic focus of the sample is also reflected in the large amount ofargument regarding the definition and classification of legal phenomena in thesample. John Townsend, for example, writes of a case in which theConstitution and Rules of the New York Stock Exchange were consideredequivalent to a contract of which a claimant could he a third-partybeneficiary,^' Jan Paulsson traces in detail the emergence of a particularlybroad definidon of "investment" in bilateral investment treaties,^^ and MichaelBagot and Dana Henderson write that "whether a party is a direct orincidental beneficiary could be quite determinative" of the arbitrability

Townsend, supra n. 46, at 20.Paulsson, supra n. 46, at 238-39.

182 Journai of the Association of Legai Writing Directors Vol. 5

quesdon.^ 3 This taxonomic concern is also reflected in the familiar legalflcdons according to which phenomena are "presumed" or "deemed" to fallwithin certain legal classiflcadons, or in which certain classiflcadons are"imputed" to legal actors,^ '* and in the belief that legal concepts form part of astructure or system of law, using hierarchic language to describe pardcularlaws as "superseded," "preempted," or "subsumed" by others.^ ^ jn addidon,the rdeles frequendy employ the trope of territoriality, describing disputes aswithin the "scope," "reach," "conflnes," or "boundaries" of legal authority,which may in turn be "extended" or "expanded" to "include," "cover," or"encompass" pardcular cases, or instead may be "restricted," "limited," or"eroded."^'' Representadve examples of these forms are listed in Table 3.

^^ Bagot & Henderson, supra n. 46, at 444.^'^ See e.g. Bagot & Henderson, supra n. 46, at 452 ("Ocean hills of lading may he deemed

contracts of adhesion and should he stdcdy construed against the carrier."); DeArman, supra n.48, at 656 ("[WJhere an arbitration agreement is ambiguous or unclear as to what disputes arearbitrable or to whom the agreement covers, there is a presumpdon that the disputes and/orparties in quesdon are included under the arbitradon agreement."); Williams, supra n. 46, at 176("They impute the requisite contractual intent to a nonsignatory based upon findings that. . . .").

^^ See e.g. DiLeo, supra n. 47; Hoellering, supra n. 46.^'' The historical roots of territoriality in the law are to some extent primordial. According

to Bouvier's Law Dictionary, the word "territory" is derived from terreo, and "is so called becausethe magistrate within his jurisdicdon has the power of inspiring a salutarj' fear." Bouvier's LawDictionary, "Territory'" (rev. 6th ed., Childs & Peterson 1856); if. Ernest Weekley, An EtymologicalDictionary of Modem English, "Territory" (Gen. Publg. Company 1967) (noting that the word"territory" may be derived from terrere, territ-, "to frighten, 'warn off ").


Table 3: Examples of Definition, Classification, and Scope inthe Sample

Definition and Classification

". . . the court concluded that 'parties'did not mean 'guarantors ' . . . "

" 'Investment' is dened in Article1139 to include. . . . "

"A Circuit split exists with regard tothe definition of 'agreement inwriting' . . . "

"The arbitral awards and courtdecisions . . . may be subdivided intosome nine different factual patternswhich may themselves be put intotwo groups . . . "

"This broad definition goes beyondthe everyday meaning of the wordinvestment."

"The authors' distinction between'obligations' and 'rights subject toconditions' is highly ambiguous."

"The FAA applies to 'maritimetransactions,' defined as including

". . . 'evidencing a transactioninvolving commerce' was thefunctional equivalent of the phrase'affecting commerce' . . . "

".. .the court interpreted'relationships which result from thiscontract' to include..."

".. .it was not for the U.S. courts todecide whether or not the Ukrainewas ... an alter ego..."

"The children were not found to fallunder either category and were thusnot bound to arbitration."

Scope

"The scope of the Act's application ispractically limited . . . "

". . . contend that arbitral clausesshould receive a restrictiveinterpretation . . . "

"The 3rd Circuit has been particularlyresistant to extending the corporateveil theory . . . "

". . . may attempt to bring anonsignatory within the agreement'sreach . . . "

"However, there is still room formovement within the confines of thislimitation."

"These developments could furthererode party autonomy . . . "

". . . the Fifth Circuit declined anopportunity to expand on the limitsof the Grigson analysis . . . "

". . . the very broad scope of theFederal Arbitration Act."

".. .may still be unclear as to whetherthe agreement covers..."

"...courts have differed as to thereach and force of these precedents."

"Drafting language that is moreinclusive wl tend to bind parties..."


Definition and Classification

". . . estoppel is regularly recognizedas a 'general principle of internationallaw' or, more arguably, a rule of thelex mercatoria (again subsumedwithin a larger 'good faith'principle)."

"All three jurisdictions have as theirGrundnorm . . . a test based on . . . "

Scope

". . . some standard form contractsprovide their own contractual termdelineating the boundaries of thirdparty involvement . . . "

". . . arbitradon encompasses theresolution of multiparty disputes . . . "

Simuar efforts to introduce system into law arose early in the westernlegal tradition, with the legal theorists of ancient Rome employing Greekdialectic to define and classify numerous cases decided under the Roman y'^jcivile, and these efforts have continued through the centuries.^'' The reductivetropes of metonymy and synecdoche have long been part of this effort toreduce law to system through terminological and conceptual systems, and asone writer notes, contemporary legal discourse is pervaded by a hierarchy ofmetonymies that "tends to prioritize whichever legitimating device is most

^^ In Cicero's De Oratore, for example, Crassus outlines his long-held plan ofdividing the entire common law \/us avile] into its general classes, which are very few,and next distributing what I may call the subdivisions of those classes, and after thatmaking plain by definition the proper significance of each, then you will have acomplete art of the common law, magnificent and copious but neither inaccessiblenor mysterious.

Cicero, De Oratore 1.190 (E.W. Sutton trans., Loeb Classical Lib. 2001). Compare Cicero, DeInventione 1.32 (H.M. Hubbell trans., Loeb Classical Lib. 2000) ("Conciseness in the partition [ofan argument] is secured if only genera of things are given and they are not confused and mixedwith their spees.") with Kenneth F. Oetde, Carefully Craft Your Sets and Subsets, 11 Scribes J. Leg.Writing 133 (2007-08) ("A topic always worth visidng is sets and subsetscategories, big andsmall; groups; lists. Items in a list should generally be coordinate to, not more or less inclusivethan, other items in the list."). See also Feldman, supra n. 37, at 53 ("Baconianism was apparentin the attention that the [early American] treadse writers gave to classifying and systematizingAmerican law."); Bruce W. Frier, The Rise of the Roman Jurists: Studies in Cicero's Pro Caecina 16062 (Princeton U. Press 1985) (discussing the importance of Roman jurist Quintus MuciusScaevola's use of normadve definitions and categories to the development of the ius avile);Matdla, supra n. 3, at 66 ("Definidons of terms are especially t)'pical of a developed legal system.. . . The popularity of [denitio per genus et differentiam] is largely explained by the fact that the legalsystem is based on classificadons. It follows that it is important to show classes and sub-classesin definidons."); Clarence Morris, How Lauyers Think 7594 (Kessinger 1937) (devodng anendre chapter of a book on legal thought to "Classificadon and Definidon"); Frederick A.Philbrick, Language and the Law: The Semantics of Forensic English 49 (Macmillan 1949) ("One of thebest ways to get a firm grip of the outlines of a subjectand who has to do this more oftenthan a lawyer?is to think about the possible definidons of what seem to be the importantwords used in it.").


reducdve and most convenient in disposing of an issue."^^ Similarly,MacDonald notes that the newly emerging disciplinary subfield of infantattachment psychology reflects increased refinement and elaboradon ofconceptual classificadons as "the reladon between generalizadon andpardcular evolved over the course of attachment research." The authors ofthe infant attachment psychology rdeles MacDonald studied were able to"discuss explicidy the drawbacks and virtues of classificadon and couldadvocate their classificadon system as contribudng to progress within theirresearch field,"^' and the rdeles in the sample engage in a pardcularlydeveloped discourse on the value of legal classificadons applicable to thenonsignatory problem, reflecdng the acdvity of researchers reflning a new areaof knowledge.

For purposes of comparison, the results of MacDonald's analysis of thesentence subjects in the infant attachment psychology, colonial New Englandsocial history, and Renaissance New Historical literarj' cridcism rdeles shestudied are listed in Table 4. Compared with MacDonald's results, thepropordon of phenomenal and epistemic sentence subjects discovered in thesubsample of arbitrability rdeles most closely resembles the propordons ofsuch sentence subjects in the infant attachment psychology rdeles studied byMacDonald. MacDonald discovered a total of 62.1% epistemic sentencesubjects in the infant attachment psychology rdeles, an even lower epistemicweight than the 76.4% in the subsample of arbitrability rdeles. The infantattachment psychology rdeles also reflect a much higher propordon of Class4 than Class 5 sentence subjects, with 49% Class 4 subjects but only 12%Class 5 subjects. This may reflect the fact that infant attachment psychologywas a newly emerging disciplinary subfield during the period in which therdeles were published with less research to address,'^ but the arbitrabilityrdeles in the subsample also consdtute a newly emerging area of study. Asmendoned above, Anthony DiLeo, for example, claims that a significant partof the case law addressing the new arbitrability problem was decided in thethree years that preceded his rdele.'^ The contrast between the reladvepropordons of Class 5 sentence subjects in the infant attachment psychologyrdeles and the arbitrability rdeles in the subsample may also reflect theimportance of the everyday work of lawyers and judges in the development ofconceptual legal knowledge, as jurists confrondng the nonsignatory problemwere able to easily idendfy common legal concepts that could be applied tonew circumstances and rapidly develop a wide array of potendal soludons,reflecdng a high degree of disciplinary compactness.

^^ Judith A. Harris, Recogni^ng Legal Tropes: Metonymy as Manipulative Mode, 34 Am. U. L.Rev. 1215, 1219,1222 (1985).

^^ MacDonald, supra n. 1, at 61.'0 See id. at 53-73 (tracing the emergence of infant attachment psycholog}' across a

twenty- to thirty-year period).1^ See DiLeo, supra n. Al, at 33.


Table 4: MacDonald (1994) Distribution of SentenceSubjects in Disciplinary Samples (by percentages)

PhenomenalClasses

Class 1:Particulars

Class 2:GroupsClass 3:Attributes

EpistemicClasses

Class 4:Reasons

Class 5:Research

Class 6:IsmsClass 7:Audience

Psychology

0.1%

27.0%

11.0%

38.1%

49.0%

12.0%

0.1%

62.1%

History

6.0%

44.0%

26.0%

76.0%

15.0%

6.0%

0.0%

24.0%

Literature

30.0%

10.0%

44.0%

84.0%

7.0%

5.0%

0.2%

4.0%

16.2%

Among the phenomenal categories in the subsample, the higherproportion of Class 1 ("Particulars") subjects in the articles by AnthonyDiLeo and Matteo Winkler primarily reflects the different practices of theselegal scholars in their description of the factual background of cases. In theDiLeo and Winkler articles, the facts are more frequendy described throughthe names of pardcular persons, organizations, or insdtudons, such as "Mr.Drewery," "General Electric Capital Corporadon," or "the Russian Ministr)'of Finance," rather than through generalized or group descripdons such as"several insurance companies," "the franchisor," or "the plaindff." Two ofthe rdeles in the sample even reflect the practice of substituting letters for thepardes, a practice familiar to most law students and commonly found inwritten arbitral awards. For example, as Bernard Hanodau describes apardcular legal scenario, "it is generally agreed that when X transfers to Y acontract containing an arbitradon clause which it has concluded with Z, if adispute arises it is Y and not X that has the right to start the arbitradon


proceedings against Z," and as James Hosking describes the facts of one case,"C sues A (and/or B) A^ (and/or B) seeks stay of lidgadon claiming that C isa party to the arbitradon clause, i.e. seeks to compel C to arbitrate."'-'^ Thisform of factual analysis attempts to remove all pardcularizadon from the factsand present them in a highly abstract form approximadng symbolic logic.

Significandy, reladvely few of the sentence subjects in the subsamplecontain Class 3 ("Attributes") compared to the literary cridcism rdelesstudied by MacDonald, which contain 44% of Class 3 subjects. The Class 3subjects in Michael Daly's law review note, the highest propordon in thesubsample, primarily reflect references to various arbitration acdvides in whatat dmes becomes a historical study of the logisdcal, or non-legal, aspects ofarbitradon practice. The Class 2 ("Groups") subjects in Michael Daly's lawreview note still outweigh the Class 3 subjects, unlike the literary cridcismrdeles studied by MacDonald, and the Class 2 subjects also outweigh theother phenomenal categories in the subsample as a whole, which contains13.9% of Class 2 subjects compared with a reladvely insignificant 2.9% ofClass 3 subjects. These results reflect that the writers in the articles rarely talkabout the attributes, properdes, acdon, behavior, or modvadons of people,places or objects, which form the primary subject of the literary cridcismrdeles MacDonald studied. Although the New England social history rdelescontain the greatest propordon of Class 2 sentence subjects, the reladvepropordon of the phenomenal classes in Michael Daly's law review note moreclosely approximate the propordon of phenomenal categories in the infantattachment psychology rdeles than the New England social history rdeles.

VI. Analysis of the Sample for the Topoi ofLiterary ArgumentOf the special topoi of literary argument identified by Jeanne Fahnestock,

Marie Secor, and Laura Wder,^ ^ the sample contains significant examples ofthe appearance/reaty, social jusdce, and mistaken cride topoi, but not theubiquity, paradox, contemptus mundi, paradigm, and context topoi. Theappearance/reality topos appears most frequendy. In fact, the quesdon of howand when arbitradon may be compelled in disputes involving nonsignatoriesitself reflects a form of the appearance/reality topos insofar as the quesdonimplies that a more complex reality may underlie the apparendy simple rulethat a party must sign an agreement to be bound by it. For example, CharlesEisen's rdele begins with the sentence, "it frequendy surprises those involvedin business transactions to learn that they may be bound to arbitrate a disputewhile never having signed an arbitradon agreement,"^''John Townsend writes

'2 Hanodau, supra n. 47, at 263; Hosking, The Third Party Non-Signatory's Ability to Compel,supra n. 46, at 488.

'^ See Fahnestock & Secor, supra n. 1; Wilder, supra n. 1.5'' Eisen, supra n. 50, at 42.


that "while an arbitration agreement may require the parties to arbitratedisputes within the reach of the agreement, it is not always apparent whothose parties are,"^^ and Anthony DiLeo discusses the legal theories underwhich arbitration agreements may bind nonsignatories in a section entitied"Beyond the

The appearance/reality topos also takes other forms in the sample,however. Bernard Hanotiau writes, for example, that "even if they are notclearly expressed, for obvious reasons, concerns of equity very often underliethe reasoning of courts," and that a third party in one particular case is a thirdparty "in appearance only, and in fact seems to be the soul, the inspiration, toput it bluntiy, the mastermind of the contracting party."''' Similarly, JamesHosking writes that the statement of a general rule of law in an Engushcontract treatise "masks a vociferous debate in the English courts," and thatalthough another legal provision "may appear straightforward, the need toestablish the facts relevant to jurisdiction to make orders can give rise tocomplications."^^ The appearance/reality topos also appears in the form ofreclassifying legal claims, such as John Townsend's description of a court'sconclusion "that the tort claims against the manager were actually claims of abreach of the manager's contractual obligations."^' Similarly, theappearance/reality topos is found in the form of rule/exception, such as inJames Hosking's discussion of exceptions to the strict privity of contractdoctrine in England, France, and the United States,'"" or in Michael Bagot'sand Dana Henderson's review of the exceptions to the written agreementrequirement "in the hopes that those seeking to maintain their litigation rightswiU not inadvertentiy subject themselves to arbitration."'"'

'^ Townsend, supra n. 46, at 19."^ DiLeo, supra n. 47, at 44.'^ Hanotiau, supra n. 47, at 278, 281.'^ Hosking, The Third Party Non-Signatory's Ability to Compel, supra n. 46, at 539, 549;


Despite these examples of the appearance/reality topos, however, theparticular form this topos takes in the sample differs significantly from thespatial metaphors Jeanne Fahnestock and Marie Secor discovered in literarycriticism articles, "of a surface with something underneath, of solids that canbe probed, of layers that can be peeled away to reveal deeper layers."'02 Thisdifference may in part refiect the fact, acknowledged by Fahnestock andSecor, that the appearance/reality topos is not unique to literary criticism or anyother discipline but is a general topos applicable to all disciplines, perhaps even"the fundamental assumption of criticism."'03 Chaim Perelman and LucieOlbrechts-Tyteca, for example, identify "appearance-reality" as a general formof dissociative argumentation,^"'* and its appearance in the sample does notappear to constitute a particularly literary form of argument.

Compared with the appearance/reality topos, the social justice andmistaken critic topoi are perhaps surprisingly less prominent in the sample.Although Michael Bagot and Dana Henderson argue that "to force a partywho has not consented to arbitrate deprives that party of importantconstitutional and statutory rights and may result in a gross miscarriage ofjustice,"'O5 social justice arguments do not frequendy appear in the sample andare generally less explicit. Similar to the appearance/reality topos, the pardcularform the social justice arguments take in the sample also differs from those inthe literary criticism rdeles studied by Laura Wilder, primarily in theconnecdon between text and world. In the literary cridcism rdeles Wilderstudied, the social jusdce topos relies on an assumed connecdon between aliterary text and the world to explore avenues to social jusdce throughadvocadng social change, by, for example, examining the social lessons thatcan be learned from literary characters. But the connecdon between a legaltext and life is more direct than metaphoric, and its reladonship to jusdcemore apparent than assumed, bearing litde resemblance to the pardcular formof the social jusdce topos Wilder idendfied. Given the close reladonshipbetween law and jusdce, it may even be surprising that the social jusdce toposdoes not appear more prominendy in the sample, an absence perhapsexplained by the formalist ideal of an "exact structural analysis of posidve law,free of all ethical-polidcal value judgments."'''

The mistaken cride topos appears only slighdy more prominendy than thesocial jusdce topos in the sample, but like both the appearance/reality and

rule."); Lamm & Aqua, supra n. 46, at 720 ("Tribunals normally prohibit intervention or joinder bynon-signatories where . . . . An important exception to this broad rule, however, pro\'ides . . . .").

102 Fahnestock & Secor, supra n. 1, at 85-86.103 l at 85-86 ("These metaphors, and the word choices they inspire, probably reveal as

much about how the mind works as they do about literary discourse . . . .").10'* Chaim Perelman & Lucie Olbrechts-Tyteca, The New Rhetoric: A Treatise on

Argumentation 415-19 0 o h n Wilkinson

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