FRAMING EFFECTS, RHETORICAL DEVICES, AND HIGH-STAKES LITIGATION: A CAUTIONARY TALE.

• Author: Moore, Marcus

OVERVIEW

1. INTRODUCTION

   This article provides an original exploration of an important, and likely not infrequent, problem. Terms are sometimes used in political debate for their framing effect or as rhetorical devices crafted to exert non-rational influence. Where this usage is imported into adjudication without appreciating that the imported terminological usage was externally shaped to exert framing or rhetorical effects, there is a significantly heightened risk of adjudication falling short in its aspiration to reasoned decision making.

   For example, in political debate, a term that is universally valued (e.g. "protection") may be chosen for use as a label for a position on one side. Terminology may also be employed which selectively emphasizes the upside of a political position (e.g. "benefit"), obscuring its downside. Terms may be used in a sloganistic way (e.g. "freedom"), lacking the linguistic context necessary to discern a specific meaning, hence inviting various listeners to each assume a meaning they value, though it will conflict with different meanings assumed by others.

   Within the scholarly discourse on framing analysis--widely studied in social and cognitive sciences but thus far largely ignored by legal scholarship--these terminological uses represent frames employed in order to exert non-rational influence. (1) Also, from the alternate perspective of law and literature's study of rhetoric, these frames can be cross-identified as the type of rhetorical devices known as tropes. (2)

   Where the use of frames/tropes arises in an external discourse that is then imported into litigation, the result is especial danger for adjudication, as a form of social ordering distinguished by its characteristic burden of reasoned decision making and justification. (3) The danger is not simply manipulating judges. After all, framing and rhetorical devices are common strategies of legal advocacy. Judges are on guard for this as it is routinely part of adjudication, is devised by an interested party, and will be flagged and countered by the opposing party. (4)

   But where terms are used in these ways in discourses external to law, the fact they were deployed in the external discourse as frames or tropes is not always appreciated by judges. Particularly where the terms typify the external discourse, courts may feel it appropriate to import them. If the use of the terms as frames or tropes is unrecognized, no adjustment to the terms or other account will be made for the sake of the legal reasoning process, for example, to instead select terms for that purpose that accurately and precisely describe what the frames or tropes were used in reference to. Especially in cases where the terms themselves are familiar to courts (and only the externally-crafted usage for effect as frames or tropes is unappreciated by the court), there is a danger of the legal reasoning process operating on the assumption of the terms being used with an ordinary expository meaning. There then results significant risk of confounding legal reasoning and frustrating larger legal analyses in the adjudication of a case.

   This problem of externally-crafted frames/tropes being carried into adjudication where they then confound adjudication's effort to meet its burden of reason is demonstrated here through a penetrating examination of the judgment of the Supreme Court of Canada in the high-profile case Eric v Lola. (5) A major case, it addressed whether provisions of Quebec's civil code spelling out spousal economic obligations in the event of separation infringed the constitutional right to equality in excluding from their scope of application unmarried couples. The case had broad social implications, as the affected group represented a huge percentage of Quebec couples. It was also legally significant as the decision could affect economic rights of unmarried spouses across Canada. The media lavished attention on the case, with its sensationalist plotline of a local billionaire, a foreign-born fashion model, and a high-stakes suit for a $50 million lump sum and $56,000 in monthly support payments. (6)

   Despite a lengthy judgment, including four separate opinions, the Court's reasons were criticized bv observers on both sides of the case's public controversy. (7) The deficiencies in the reasons offer an excellent illustration of the problems above: the judgment imported from political debate uses of the terms "choice", "autonomy", "protection", and "benefit" in ways that constituted frames or tropes. Incorporated into legal reasoning without attention to this fact, the usage led to several confusions. Among these were: failing to distinguish the choice of one spouse and the "choice" of the couple in situations where the couple disagree; overlooking substantial segments of the claimant group for whom the legislation was not a "protection"; and conflating the scheme at issue with a different category of law (and hence a different set of applicable precedents) properly known in law as "benefit" legislation. These and other notable confusions which resulted from the judgment's unguarded importation of terminological uses that served as frames or tropes in political debate hindered, in turn, larger legal analyses called for by the case, including the central question of discrimination. The judgment's serious deficiencies are a cautionary tale about the risks of inattention to where terminological usage imported into adjudication from an external discourse comprises frames or tropes--valued in the political realm for their non-rational influence, but hazardous to the legal reasoning process. (8)

2. BREAKDOWN OF THE PAPER

   A roadmap of this article's discussion of the ideas above may be useful. The article proceeds in four main parts. Part I provides context for the argument which follows. I note adjudication's burden of reasoned decisions ([section]A). I then acknowledge the ways that political discourse regularly enters adjudication and the attendant risk discussed here of political frames or tropes confounding legal reasoning ([section]B). Next I outline how the Lola case can illustrate this problem and show the significance of these risks ([section]C). Further, I pinpoint the focus of this article's consideration of the case, which leaves aside other important dimensions that have been addressed elsewhere.

   Part II examines the nature of the problem at issue here, the risk of incautiously importing into adjudication external uses of terminology as devices of non-rational influence. I first show how such use of terms has been widely studied across social and cognitive sciences--but thus far rarely in legal scholarship--through the lens of "frame analysis" ([section]A). I then observe how these frames can be cross-identified with an alternate conceptualization of them within law and literature scholarship as the rhetorical devices known as tropes ([section]B). Next, I note that frames and tropes are common within legal terminology itself but explain why native terminology does not pose the same risk to legal reasoning ([section]C). The special difficulties presented by external devices are explained as reflecting the self-referentiality of social systems ([section]D-i) and, alternatively, within law and literature study, as a matter of the culture-specificity of language ([section]D-ii). I acknowledge how in adjudication, litigators routinely construct frames and tropes as part of their argumentative strategies; however, this is familiar and recognized by judges, and balanced in net effect by the adversary legal process ([section]E). This is not true for frames or tropes imported from political speech--absent special attention to the risk. I show how such usage of terms was carried into the Lola case, concretely manifesting the theoretical points from this part of the paper ([section]F).

   Part III sets the scene regarding the prominence and importance of the Lola case ([section]A) and offers an overview of its long and fractious judgment, to aid Part IV's detailed demonstration of the case's confusions and analytical deficiencies.

   Part IV then shows how the risks from Part II materialized in the case: it reveals the confusion and distortion caused by incorporating from political speech key terms devised there as frames or tropes. I then trace through how this led in turn to problems in larger legal analyses that were needed in order to evaluate the case's discrimination claim. One section looks at confusion around the imported sloganistic use of the terms "choice" and "autonomy" and the defects this caused in the case analysis ([section]A). The other section scrutinizes how the imported use of "protection" and "benefit" as labels for the impugned legislation served to legally mischaracterize it-of note because of the key role played by legislative characterizations in assessing the constitutionality of the scheme.

   A short conclusion wraps up the discussion, including preliminary thoughts on how to guard against such problems in future cases.

   1. CONTEXT

   Per the roadmap above, this part of the paper provides context for the main argument which follows in Part II. I start by calling to mind adjudication's distinctive burden of reasoned decisions.

1. ADJUDICATION'S BURDEN OF RATIONALITY

   Contrasting different modes of social ordering, the great legal philosopher Lon Fuller observed that one "distinguishing characteristic of adjudication lies in" its reliance on "proofs and reasoned arguments". (9) Comparing adjudication to elections, another mode of social ordering, Fuller acknowledged that a "political speech may take the form of a reasoned appeal to the electorate; to be sure, it often takes other forms, but the same thing may be said of speeches in court." (10) Thus, Fuller acknowledged that lawyers often use non-rational forms of influence in arguing cases. (11) Nonetheless, the way the resulting "decision... is institutionally defined and assured"...