Levels of Metaphor in Persuasive Legal Writing - Michael R. Smith

• Citation: Vol. 58 No. 3
• Publication year: 2007

Levels of Metaphor in Persuasive Legal Writingby Michael R. Smith^*

The role of metaphor in the law has been a hot topic among legal scholars in recent years.¹ In fact, recent scholarly works on metaphor in the law (and the more general works on metaphor that have served as their basis) have addressed the topic from the standpoints of numerous disciplines, including linguistics,² philosophy,³ rhetoric,⁴ cognitive psychology,⁵ and literary theory.⁶ Because of these vastly different approaches to the topic, however, much of the literature on metaphor in the law is difficult to reconcile. Moreover, while these scholarly works have increased lawyers' appreciation and understanding of the prevalence and power of metaphor in legal discourse, the absence of some type of organizational scheme has made it difficult for legal advocates to harness this power so that it can be used in their everyday practices.

This Article, then, has two primary goals. First, this Article attempts to reconcile some of the approaches to the topic of "metaphor and the law" by identifying different "levels" of metaphor operating in legal analysis and writing.⁷ A close reading of the scholarship reveals that there are actually four basic types or levels of metaphor operating in persuasive legal discourse. These four levels of metaphor correspond with the four basic components of any legal argument: (1) the legal principles governing an issue; (2) the tools of analysis applied to the governing principles; (3) the writing style of an advocate who is presenting the legal argument; and (4) the inherent nature of language itself, which serves as the foundation of any written legal argument. The fact that metaphor plays a significant role in all four of these components of legal argumentation highlights the sheer prevalence of metaphor in legal discourse. The four levels of metaphor discussed here will be presented generally in descending order, starting with those types of metaphor that play the most significant roles in the decision-making process and working down. The following is a summary of the four levels of metaphor that will be discussed:

Level 1—Doctrinal Metaphors

Level 2—Legal Method Metaphors

Level 3—Stylistic Metaphors

Level 4—Inherent Metaphors

The second, and more practical, goal of this Article is to analyze the specific implications of these four levels of metaphor on the practice of persuasive legal writing. While most of the recent scholarship on metaphor has made it clear that metaphors are more than mere rhetorical or literary devices,⁸ these works do not diminish the importance of metaphor to legal rhetoricians. To the contrary, the more the legal profession learns about metaphors, the more opportunities exist for legal advocates to develop rhetorical strategies around them. Thus, while this Article acknowledges that metaphors are more than rhetorical devices, it nevertheless demonstrates that metaphors, more than ever, can and do serve as the basis for numerous rhetorical strategies.

I. LEVEL ONE: DOCTRINAL METAPHORS

A. Defining Doctrinal Metaphors

The first category—or level—of metaphor implicated by the existing "law and metaphor" literature is what I call "doctrinal metaphor." This level of metaphor refers to aspects of doctrinal law that are expressed in metaphoric terms. Many of the legal rules and principles governing the analysis of an issue are expressed in the form of a metaphor. In fact, doctrinal law is rife with metaphoric constructs.⁹ Consider the following recognizable examples:

• The "marketplace of ideas" principle in First Amendment law;¹⁰

• The "wall of separation" principle in connection with the law on the separation of church and state under the First Amend-ment;¹¹

• The "overbreadth" doctrine under constitutional law;¹²

• The "chilling effect" doctrine under constitutional law;¹³

• Treating a corporation as a "person" under the law;¹⁴

• The relationship between "parent corporations" and subsidiaries and "piercing the corporate veil" under corporations law;¹⁵

• The "fruit of the poisonous tree" doctrine under criminal law and evidence law;¹⁶

• "Long arm" statutes under personal jurisdiction law.¹⁷

Without a doubt, doctrinal metaphors are the most powerful—and potentially the most dangerous—metaphors operating in legal discourse. In these contexts, substantive legal rights are expressed, analyzed, and argued not in literal terms, but in figurative, symbolic, and metaphoric terms. Granted, metaphoric language can be useful for describing or expressing an abstract legal concept. In fact, it is the ability of metaphor to "give names to nameless things"¹⁸ —to put an abstraction into concrete terms—that has led to the prevalence of metaphor in doctrinal law. However, a metaphor cannot possibly capture the true meaning of, and all the dimensions and nuances implicated by, an abstract legal concept.¹⁹ Indeed, it is this allure of metaphor combined with its potential pitfalls that led renowned jurist Benjamin Cardozo to his famous criticism of metaphors in doctrinal law: "Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it."²⁰ And it is this criticism, and the shortcomings of metaphor that it reflects, that lead us to our first rhetorical metaphoric strategy: challenging an established doctrinal metaphor.

B. Advocacy Strategy with Doctrinal Metaphors: The Cardozo Attack

As discussed in the preceding section, many rules of law and legal principles are expressed in metaphoric terms. As we also saw, the ability of a metaphor to accurately and effectively capture and reflect a legal abstraction is questionable. Thus, the first metaphoric strategy available to the legal advocate is to challenge an unfavorable doctrinal metaphor, a strategy I have dubbed the "Cardozo Attack."

Many legal advocates represent clients on issues that implicate doctrinal metaphors. If a lawyer finds that his or her client would not fare well under the established doctrinal metaphor, one strategy that may be available to the lawyer is to challenge the metaphor itself. That is, the lawyer may be able to convince the court to adopt a new (and more favorable) governing rule by arguing that the existing doctrinal metaphor is defective because it does not accurately and effectively capture the legal concept at issue. A lawyer in this situation may advocate either for a new "literal" rule or for a new metaphoric rule that (in the opinion of the advocate) more effectively captures the legal abstraction (i.e., fighting metaphor with metaphor).²¹

Numerous illustrations of successful attacks on doctrinal metaphors exist. We will consider two.

1. Replacing a Factors Test for the "Alter Ego" Doctrine for "Piercing the Corporate Veil" Under Corporations Law. The first example of a successful challenge to a doctrinal metaphor stems from Justice (then Judge) Cardozo's statement itself. Justice Cardozo's earlier quoted admonishment about metaphors was given in the context of corporations law and the "mists of metaphor" that "envelop" the relationship between parent corporations and subsidiary corporations.²² Justice Cardozo warned that metaphors such as "alias" and "dummy," which often dominate the discussion of whether a parent corporation will be held responsible for the obligations of its subsidiary, should be employed carefully and not to the exclusion of literal language that more accurately expresses the proper relationship between such corpora-tions.²³

Justice Cardozo's warning has had a major impact on the development of corporations law in many jurisdictions around the country. In fact, based in large part on Justice Cardozo's warning,²⁴ many courts have abandoned the traditional doctrinal metaphors used to analyze the limitations on a corporation's liability—"piercing the corporate veil," "alter ego," "alias," "dummy," "instrumentality," "fiction"—and have replaced them with literal rules (such as factor tests²⁵ ) that more accurately assess the legitimacy of the corporation's relationships and existence.²⁶ One example of such a case is Laya v. Erin Homes, Inc.,²⁷ in which the West Virginia Supreme Court of Appeals adopted a nineteen-factor test for determining whether to disregard the corporate entity in a particular case.²⁸ In establishing this rule, the court in Laya acknowledged the limitations of the traditional corporate law metaphors and paid appropriate homage to Justice Cardozo:

Examination of the numerous relevant factors in a "totality of the circumstances" test provides a more enlightening analysis than merely applying metaphors, like "simulacrum," "alter ego," "instrumentality," etc., to describe the unity of the shareholder(s) and the corporation justifying, where equitable, the piercing of the corporate veil in the case.

In discussing the concept of piercing the corporate veil to hold the parent corporation liable for the debts of its subsidiary corporation, the renowned Benjamin N. Cardozo, then Chief Judge of the New York Court of Appeals, remarked that this concept "is still enveloped in the mists of metaphor. Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it."²⁹

2. Dismantling the "Wall of Separation" Between Church and State and Replacing it with the "Lemon Test." A second example of a successful attack on a doctrinal metaphor has been well chronicled by author and communications professor Haig Bosmajian and involves the Establishment Clause of the First Amendment to the United States Constitution.³⁰ The First Amendment provides that "Congress shall make no law respecting an establishment of religion."³¹ This provision in the Constitution is generally designed to prevent states and the federal government from enacting laws that favor one religion over another, that favor the religious over the nonreligious, or that otherwise punish or favor people for having or not...