MARK WASHOFSKY
99. Frederick Schauer ,"Formalism," Yale Law Journal, vol. 97, 1988, pp. 509-548. See also the articles by Schauer and Ken Kress, note 78, above.
100. See the following works of Steven Burton: Judging in Good Faith, New York , 1992; An Introduction to Law and Legal Reasoning, Boston , 1985;"Law as Practical Reason," Southern California Law Review, Vol. 62, 1989, pp. 747-793; and"Judge Posner 's Jurisprudence of Skepticism," Michigan Law Review, Vol. 87, 1989, pp. 710ff. See also Vincent A. Wellman,"Practical Reasoning and Judicial Justification: Toward an Adequate Theory," U. of Colorado Law Review, Vol. 57, 1985, pp. 45ff, Neil MacCormick , Legal Theory and Legal Reasoning, Oxford, 1978, pp. 1-8; and John Ladd,"The Place of Practical Reason in Judicial Decision," in Carl J. Friedrich , ed., Nomos VII: Rational Decision, New York , 1964, pp. 126-144.
101. Aristotle 's Rhetoric is often cited as the major source.
102. Chaim Perelman , Justice, Law, and Argument, Dordrecht , 1980, p. 129.
103. John Dewey ,"Logical Method and Law," Cornell Law Quarterly, vol. 10, 1924, pp. 17fF. 104. Wellman, p. 96.
105. Such is the sense in which"rhetoric" is treated by Chaim Perelman , its foremost contemporary theorist. His magnum opus is Chaim Perelman and L. Olbrechts-Tyteca , The New Rhetoric, Notre Dame, 1969; see also his The New Rhetoric and the Humanities: Essays on Rhetoric and Its Applications, Dordrecht , 1979, and The Realm of Rhetoric, Notre Dame, 1982.
106. The words are those of Richard Posner , Problems of Jurisprudence, Cambridge , MA , 1991, pp. 71ff. While Posner calls this kind of argumentation"practical reason," the references to Pereleman's studies in p. 72, n. 2, indicate that he means the enterprise described here as"rhetoric."
107. See, in general, Herbert W. Simons, ed., The Rhetorical Turn, Chicago , 1990, and David
R. Hiley, James F. Bowman, and Richard Shusterman , eds., The Interpretive Turn: Philosophy, Science, and Culture, Ithaca , NY , 1991. The pragmatist Richard Rorty is often cited with respect
to this conception of inquiry; see his Consequences of Pragmatism, Minneapolis , 1982, and Philosophy and the Mirror of Nature , Princeton , 1980. But any list of relevant theoreticians would have to include Heidegger , Wittgenstein , Ricouer , Gadamer , and Hilary Putnam . A helpful introduction, especially for those of us who are not professional philosophers, is Richard J. Bernstein , Beyond Objectivism and Relativism, Philadelphia , 1983.
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