Making Sense of Judicial Sensemaking: A Study of Rhetorical Discursive Interaction at the Supreme Court of the United States.

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2011-08-08

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Abstract

This dissertation engages previous research in political science and psychology by arguing for the importance of oral arguments from a communication perspective, examining justices' rhetorical discursive interaction in oral arguments, introducing Sensemaking as a new model of judicial decision making, and discussing the legal and cultural impact of justices' rhetorical discursive interaction in Morse v. Frederick, Kennedy v. Louisiana, and District of Columbia v. Heller. In contrast to the aggregate behavioral models and longitudinal studies conducted by political scientists and psychologists, this study examines these specific cases in order to gauge each justice's individual interaction in oral argument and to determine how certain justices may have controlled the discursive flow of information within oral arguments, which in turn may have influenced the Court's decision making ability. The dissertation begins with an introduction, providing an overview of the development and study of legal rhetoric from the Greeks to present day. A review of prior literature in law, political science, and psychology displays how fields outside of communication view oral arguments and reveals where communication may provide valuable contributions to the study of Supreme Court oral arguments. Theoretical and methodological approaches adopted for the study of oral arguments are discussed. Analysis within the dissertation begins with an overview of the inherent complexity found within oral arguments and applies the previously discussed theoretical and methodological approaches to the case of Morse v. Frederick as a means of determining theoretical and methodological validity. Following analysis of Morse v. Frederick, a second case, Kennedy v. Louisiana is analyzed to determine if similar results will occur. Final consideration is given to a third case, District of Columbia v. Heller, to understand whether justices' behavior may deviate in more socially and politically sensitive cases. The dissertation concludes with suggestions for lawyers and judges based upon this study's findings and makes recommendations to scholars for further areas of research.

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