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ZEEB ROAD, ANN ARBOR, Ml 48106 18 BEDFORD ROW, LONDON WC1 R 4EJ, ENGLAND 8012292 R o d g e r s , R ay m o n d Sin c la ir JUSTICE WILLIAM O. DOUGLAS ON THE FIRST AMENDMENT: RHETORICAL GENRES IN JUDICIAL OPINIONS The University o fOklahoma PH.D. 1979 University Microfilms InternStiOnEll300 N. Zeeb Roat Ann Arbor, M I48106 18 Bedford Row, London WC1R4EJ, England THE UNIVERSITY OF OKLAHOMA GRADUATE COLLEGE JUSTICE WILLIAM 0. DOUGLAS ON THE FIRST AMENDMENT: RHETORICAL GENRES IN JUDICIAL OPINIONS A DISSERTATION SUBMITTED TO THE GRADUATE FACULTY in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY BY RAYMOND SINCLAIR RODGERS 1979 Norman, Oklahoma JUSTICE WILLIAM 0. DOUGLAS ON THE FIRST AMENDMENT: RHETORICAL GENRES IN JUDICIAL OPINIONS APPROVED BY: DISSERTATION COMMITTEE ACKNOWLEDGMENTS No individual ever produced a dissertation. Individuals only oversee their production and receive credit or blame for the final product. The several people who truly pro­ duce it should be credited for any value the product may have; its overseer is the sole heir to blame. The people who have added their intellect, energy, talent, and love to this dissertation are most gratefully acknowledged. Dr. Paul A. Barefield, as director of the study provided con­ tinuing insight and encouragement as the project evolved. The committee members. Dr. L. Brooks Hill, Dr. Roger Babich, Dr. Bill Carmack, and Dr. David Levy each provided invaluable criticism, direction, and encouragement as those qualities were needed. Dr. Lauren Wispe, though not a committee member, provided additional moral support, in addition to serving as an influential role model of academic discipline. Dr. Jimmie Neal Rogers of the University of Arkansas pro­ vided valuable advice toward the end of the project, as well as timely reminders that the thing was not finished. Special iii thanks go to Dr. Bill Franklin, my Department Head at North Carolina State University, for his boundless patience. Mrs. Charlotte Swart typed the manuscript with surpassing skill and genuine personal concern. Finally, my wife, Peggy Beasley-Rodgers, was always there, her career waiting in the wings, never being a "dissertation mother." Gonzo was there when I needed him. All of these people receive my deep and sincere gratitude. I could not have done it without each of them. IV TABLE OF CONTENTS Page LIST OF TABLES v i ü Chapter I. INTRODUCTION TO THE STUDY.................. 1 Purpose of the Study .................. 4 Overview of the Study...................... 7 Review of Literature...................... 10 Overview............................... 10 Douglas' Works ...................... 11 Limitations......................... 12 The Legal Perspective................ 13 The Academic Perspective................ 29 Major W o r k s ............................ 34 The Communication Perspective.......... 36 The Jurisprudential Perspective........ 47 II. THE NATURE OF JUDICIAL COMMUNICATION: SEEKING THE INTERNAL DYNAMIC............ 49 Introduction ............................. 49 Jurisprudence and Rhetoric : The Generic Potential ...................... 51 Argument from Ideal: The Natural Law Warrant............................. 51 Argument from Rule: The Positive Law Warrant............................. 56 Argument from Context; The Legal Realist Warrant............................. 61 The Living Hand of Tradition; Institutional Rhetoric in the Supreme Court........ 68 Precedent, Dicta, and Style; Functional Constraints on Supreme Court Rhetoric. 77 Douglas Opinions : Style and Philosophy . 96 V Table of Contents Continued Page Chapter III. METHODS AND PROCEDURES......................... 104 Introduction................................... 104 Assumptions of Critical Method: The Role of Content Analysis in Genre Criticism................................... 105 Analytic Procedures ......................... 127 IV. RESULTS AND CONCLUSIONS....................... 134 Introduction................................... 134 The Internal Dynamic of Natural Law: The Argument from Ideal..........................135 Argument from Ideal: The Thomist Sub- Species..................................... 138 Argument from Ideal: The Natural Rights Sub-Species................................. 144 The Internal Dynamic of Legal Positivism: The Argument from R u l e ......................155 Argument from Rule: The Deductive Sub- Species ..................................... 156 Argument from Rule: The Analogic Sub- Species..................................... 166 The Internal Dynamic of Legal Realism: The Argument from Context. ............ 171 Argument from Context: The Sociocentric Sub-Species............... 172 Argument from Context: The Relativistic Sub-Species................................. 181 Argument from Context: The Exigential Sub- Species..................................... 184 The Case for Rhetorical Genres in Judicial Opinion ......................... 190 Rule-Based Rhetoric and the First Amendment: The Douglas Dynamic................... 193 The Rhetoric of Majority and Dissent: Measuring the Received Wisdom................ 196 Summary....................................... 202 vi Table of Contents Continued Page Chapter V . IN RETROSPECT Introduction............................... 213 Rhetorical Genres in Judicial opinion .... 213 Qualifying the Douglas Dynamic.............. 219 The Rhetoric of Majority and Dissent: Qualifications, Implications, and Further Research....................... 223 Epilogue................................... 227 APPENDIX......................................... 229 BIBLIOGRAPHY..................................... 246 vxi LIST OF TABLES Page 1. Frequency of All Opinions by Genre ............ 204 2. Yearly Distribution of Genres ................ 205 3. Frequency of Majority Opinions by Genre.... 207 4. Frequency of Non-Majority Opinions by Genre. 208 5. Distribution of Genres by Opinion T y p e .... 209 6. Distribution of Genres by Opinion Sub-Type . 210 7. Distribution of Majority Opinion Sub-Type by Genre................................... 211 8 . Distribution of Non-Majority Opinion Sub-Type by Genre................................... 212 viii JUSTICE WILLIAM 0. DOUGLAS ON THE FIRST AMENDMENT: RHETORICAL GENRES IN JUDICIAL OPINIONS CHAPTER I INTRODUCTION TO THE STUDY On the morning of November 12, 1975, Associate United States Supreme Court Justice William Orville Douglas handed an envelope containing his letter of resignation to Chief Justice Warren Burger, asked him to deliver it to President Gerald Ford, and "stepped into history.His tenure, the longest in the history of the Court, spanned almost thirty- seven years and was served under five Chief Justices and seven Presidents. His opinions, found in volumes 306 through 423 of United States Reports, number almost twelve hundred and occupy more than a fourth of the bound records of the Supreme Court. On the occasion of justice Douglas' thirty-fifth anniversary on the Court, his close friend ^Newsweek, Noveiriber 24, 1975, p. 45. - 1 - -2- and former Chief Justice Earl Warren wrote that, If it is true, as said by de Tocqueville almost a century and a half ago, that in a period of time every public problem in American life eventually reaches the Supreme Court, certainly Justice Douglas has served through such a period, and he has written on every one of those problems without reservation or equivocation.2 When Douglas took his place on the Court on April 17, 1939, filling the seat vacated by the resignation of Justice Louis D . Brandeis, he came there as one of the country's most widely recognized experts in finance law and business