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Law in Contemporary Society
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Language: Its Leverage in Law-- By AlexaShyama - 23 May 2025 Coming into law school, I was already aware of the power of words to influence public discourse and private opinion. This course further taught me how this power could also have relevance to my professional life. Professor Moglen reminded us, through lectures and readings, not to be blinded by repetitive and pervasive language, but to use our powers of critical thinking and our resources of information to drill down to provable facts and discernible outcomes.Is it 'Fascism' or is it Greed?In one of the earliest readings assigned for the course, Timothy Snyder presents a definition of fascism that seems created from a description of Donald Trump. The first defining feature is that a fascist does not need to attach meaning to his words, tell a coherent or consistent story, or even ensure that his stories fit external reality. Classic examples of Trump rhetoric include the depiction of USAID as the deep state, or the assertion that pets were being eaten by immigrants in Springfield, Ohio. Another trait of a fascist, is the need to name an enemy. The enemy need not have any basis in reality, but the idea should exploit vulnerabilities of the audience. Playing on public fears regarding rising unemployment and competition for college admissions and jobs, Trump’s declared enemies included the Haitian immigrants in Springfield or women and transgenders taking jobs from American men. Third, fascists preach that government is the source of all evil and seek to limit it. There is a purpose to this rhetoric, for weakened government cannot control oligarchs or institute progressive taxation to provide a welfare state. Trump may indeed be a fascist, a despot, a rightwing nationalist, a racist, or all of these. However, by labelling and stereotyping Trump, or making fun of him, we run the risk of distracting from the venality of his actions. By focusing on the spectacle of the leader, rather than on the consequences of his actions, we ensure that our emotions of amusement, anger or fear do not go beyond the limited attention span required for a cartoon or its caption. It is easier to laugh or frown and click to forward, rather than to ask ourselves the question: Who is affected by this action and how? While Gen Z is busy flipping through their cell phones, chortling over memes of orange ducks and Hitlerian outfits, the world as they knew it from their lived experience and their constitutional law textbooks, is being changed by the day. Hard-won women's reproductive rights are being cut back, welfare departments and multilateral aid agencies are being stripped of funds, political opponents are being targeted by presidential orders, science and higher education is being reduced to dispensable luxuries. Unlike what the late night TV comedians would have us think, Trump is not just throwing a tantrum like a toddler in a toy store and demanding that people follow his diktats. Major policy decisions, almost every one of them with legal implications, are being translated into executive orders, and only a few of them are being challenged in court rooms. To see these orders as the actions of a fascist, is to paint Trump as a person deeply committed to a legitimate political ideology and to distract from the greed, venality and lawlessness underlying his actions. Equally misleading is the use of mockery, both of the social media and the Saturday Night Live variety, that reassures us that freedom of speech and opposition still exists in this country – because it tends to take away the need to reflect on the deception and inhumanity being translated into policy decisions around us.Words: A Weapon and A ShieldBut I note that courtroom proceedings, especially in jury trials, can sometimes play out quite like these political media circuses. Thus, strategies like grandstanding are just as usable by lawyers in courtrooms as by media content creators. The Goebbelsian concept of repeating a lie many times till it becomes the truth, has been used by fascist dictators and canny lawyers alike, and I have realised that if I accept and proceed with unproven statements without challenge, it could get to a point where it is difficult to parse out the facts from the fabrications because the truth has become so embroiled in assumptions. In my Criminal Law course, I read Professor Harcourt's paper on Imagery and Adjudication, where he discussed this very concept – that even in the courtroom, repeating age-old buzzwords and false claims can stick with juries and judges, even when there is no legal basis to them. I realize that while this strategy could be a weapon I employ myself when I go against adverse parties, I should be wary of the power that the language of others has on myself and my ways of thinking. Countering challenges to the Constitution and democracy may require us to identify and sift out the non-factual statements and rhetoric and focus on their intent or their consequences instead of ridiculing them. Similarly, while humor and sarcasm can get the attention of judges and juries, it is the framing of the right questions and the careful and painstaking gathering of the evidence that will work to affect the desired outcome in a courtroom. As Professor Moglen reminds us, it is easy to get influenced by the pervasive rhetoric - whether it is from corporate firms urging us to join them and defend Fortune 500 companies rather than do public interest law, or the school itself emphasizing how imperative it is to be part of exclusive organizations like Law Review, or our inner selves pushing us to achieve A pluses all the way, for fear that our legal careers would otherwise be doomed. Just like the witty captions and the black humor can blur the awareness of the damages being inflicted on ethical or constitutional governance in the country, these Macbethian choruses of advice can cloud my perception of my choices as I make decisions for my life as a lawyer.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. 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