Abstract
Judicial reasoning and rhetoric should be mutually reinforcing, but often they end up at odds. Edwards v. Vannoy offers an unusually rich opportunity to explore this tension. First, the watershed exception, though declared "moribund," may actually have survived. Second, Justice Gorsuch’s ostensibly strict judgment-based approach arguably called for providing relief in Edwards. Third, majority coalitions have a counterintuitive incentive, rooted in rhetoric, to overrule relatively insignificant precedents. Fourth, Edwards featured charges of personal inconsistency that both reflect and facilitate the erosion of conventional legal argument. Finally, the legal system may benefit from the superficial and even fallacious reasoning often resent in judicial decisions, including excellent ones.
Citation
Richard M. Re,
Reason and Rhetoric in Edwards v. Vannoy,
17 Duke Journal of Constitutional Law & Public Policy
63-98
(2022)
Available at: https://scholarship.law.duke.edu/djclpp/vol17/iss1/3