Res Ipsa Loquitur
| Publication year | 2022 |
| Pages | 0157 |
| Citation | Vol. 37 No. 3 Pg. 0157 |
NANCY A. WANDERER is Legal Writing Professor Emerita at the University of Maine School of Law. For decades, she oversaw the updating of Uniform Maine Citations, and her articles on proper citation, email-writing, and judicial opinion-writing have appeared in the Maine Bar Journal, the Maine Law Review, and the National Association of State Judicial Educators News Quarterly. Off and Running: A Practical Guide to Legal Research, Analysis, and Writing, co-authored with Prof. Angela C. Arey, is being used as a textbook in first-year legal writing classes. Nancy may be reached at wanderer@maine.edu.
Eloquent Imagery: The Art of Persuasion Part II
Metaphor has been recognized as essential to human language since the time of the ancient Greeks. Often recommended for persuasive writing, its use has also been criticized at times. Aristotle saw metaphor as a common feature of language, but warned that metaphors should be used carefully, "with a sense of their appropriateness for the occasion."[2] Nevertheless, Aristotle acknowledged that anyone who truly mastered the use of metaphor exhibited the signs of genius because "a good metaphor implies an intuitive perception of the similarity in dissimilars."[3]
The word "metaphor" derives from the Greek verb "metapherein," which means "to transfer."[4] The transference in metaphor involves giving a name to one thing that belongs to something else.[5] Aristotle considered metaphor to be a highly useful stylistic device because of its ability "to make what is said seem unusual and, thus, more striking."[6] Aristotle valued clarity, but also considered distinction of style to be very important. Because metaphor lent both clarity and distinction, he deemed it the only poetic device available to the writer of prose.[7]
Metaphor has long been a staple of United States Supreme Court jurisprudence. Since Thomas Jefferson first used a metaphor to describe the religion clause of the First Amendment as "building a wall of separation between Church & State," the Court has used metaphors to clarify and illuminate difficult, abstract concepts.[8] Using metaphoric reasoning, Justice Douglas, writing for the majority in Griswold v. Connecticut,[9] located a right to privacy in the penumbral area formed by emanations from specific guarantees in the Bill of Rights.[10]
Many metaphors, like Jefferson's "wall of separation," are merely intended to explain a legal doctrine. Some metaphors, however, actually express doctrinal law, like Justice Douglas's "penumbra," establishing a right to privacy not actually enumerated in the Constitution. Doctrinal metaphors are powerful because they describe substantive legal rights not in literal terms, but in metaphoric terms, giving "names to nameless t hings."[11] Recognizing the potential for danger in doctrinal metaphors, Benjamin Cardozo warned, "Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it."[12]
Using Metaphors in Legal Writing
Despite the concerns expressed about using metaphors in Supreme Court opinions, attorneys can use metaphors safely and effectively to enhance their legal writing. In fact, it would be impossible not...
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