Law Commons^™

Savages, Victims, And Saviors: The Metaphor Of Human Rights, Makau Mutua

Makau Mutua

This article critically looks at the human rights project as a damning three-dimensional metaphor that exposes multiple complexes. It argues that the grand narrative of human rights contains a subtext which depicts an epochal contest pitting savages, on the one hand, against victims and saviors, on the other. The savages-victims-saviors (SVS) construction lays bare some of the hypocrisies of the human rights project and asks human rights thinkers and advocates to become more self-reflective. The piece questions the universality and cultural neutrality of the human rights project. It calls for the construction of a truly universal human rights corpus, one …

Speech And Strife, Robert L. Tsai

Robert L Tsai

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …

Democracy's Handmaid, Robert L. Tsai

Robert L Tsai

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Tsai draws from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

Speech And Strife, Robert Tsai

Robert L. Tsai

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …

Democracy's Handmaid, Robert Tsai

Robert L. Tsai

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Tsai draws from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

Ballad Of A Thin Man: Sociolegal Studies In A Time Of Postmodern Crisis, Jonathan Simon

Jonathan S Simon

This article comments on a speech by Boaventura de Sousa Santos which was addressed to the Law and Society Association during its Annual Meeting on June 3, 1995 in Toronto, Canada, about the metaphors of a new conception of law. According to Santos, what is taking place, as of 1995, is simultaneously a crisis of subjectivity and government. The project of emancipation, Santos suggests, has collapsed into regulation. Santos offers three metaphors for the kinds of knowledge and law which may facilitate the construction of postmodern subjectivities. In the frontier, the baroque, and the South, Santos finds emancipatory possibilities. He …

The Worst Test Of Truth: The "Marketplace Of Ideas" As Faulty Metaphor, Thomas W. Joo

Thomas W Joo

In his famous dissent in Abrams v. United States, Justice Holmes proclaimed that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This Article critiques the basic argument against speech regulation that has developed from the “marketplace of ideas” metaphor: that speech should be “free” because markets are “free,” and because free markets produce “truth.” These assertions about markets are taken for granted, but they portray markets and market regulation inaccurately; thus economic markets provide a poor analogy for the deregulation of speech.

First Amendment jurisprudence invokes the …

Table Annexed To Article: Our Constitutional Kinesis: Words That Can Go Like A Machine, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Americans have long been known for their appreciation of the kinetic effort involved in writing constitutional text, as long as the work begun at York, Pa (October, 1777) is subordinated to that commenced at Philadelphia (May, 1787). Gathered in one place are selected ‘machine’ quotes by which text itself is ennobled as automaton. OCL lists and reports for further investigation into this phenomenon.

Metaphor In Law As Poetic And Propositional Language, Linda L. Berger

Linda L. Berger

My argument in this essay is that although lawyers routinely use and abuse metaphor as propositional language, they mostly neglect the use of metaphor as poetic language. Poetic metaphor openly invites you to view a topic or a target from a new angle by setting it against or alongside a light source; in this way, it prompts second looks and encourages insights. Propositional metaphor, by comparison, appears designed to persuade you to view the target or the topic under discussion as something you already know about because of your experience with the source. As a result, you are better able …

The Lady, Or The Tiger? A Field Guide To Metaphor And Narrative, Linda L. Berger

Linda L. Berger

Metaphor and narrative reassure us that things hang together, providing a sense of coherence to the patterns and paths we employ for perception and expression. In this field guide, I hope to illustrate—with images and stories when possible—how better understanding of metaphor and narrative can guide those engaged in legal rhetoric and persuasion. The article briefly summarizes cognitive theory relating to metaphor and narrative, provides snapshots of their use in the field, in real-life legal persuasion, and suggests ways to adapt metaphor and narrative to a specific example of legal persuasion. In the field guide section, the article uncovers a …

A Darwinist View Of The Living Constitution, Scott Dodson

Scott Dodson

The metaphor of a “living" Constitution imports terms from biology into law and, in the process, relies on biology for its meaning. A proper understanding of biology is therefore central to understanding living constitutionalism. Yet despite its rampant use by both opponents and proponents of living constitutionalism, and despite the current fervent debate over whether biology can be useful to the law, no one has evaluated the metaphor from a biological perspective.

This Essay begins that inquiry in an interdisciplinary study of law, science, and philology. The Essay first evaluates the metaphor as it is currently used and concludes that …

Metaphors And Modalities: Meditations On Bobbitt's Theory Of The Constitution, Ian C. Bartrum

Ian C Bartrum

This article builds on Philip Bobbitt’s remarkable work in constitutional theory, which posits a practice-based constitution based in six accepted “modalities” of argument. I attempt to supplement Bobbitt’s theory—which has a static and exclusive quality to it—with an account of interpretive evolution based in Max Black’s interaction theory of metaphors. I suggest that we can (and do) create constitutional metaphors by deliberately overlapping Bobbitt’s modalities of argument, and that through these creative acts we can grow the practice of American constitutionalism. I then present case studies of this metaphoric process at work in three fields of constitutional practice: from constitutional …

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

Linda L. Berger

No abstract provided.

Rights Of Access And The Shape Of The Internet , Michael J. Madison

Michael J. Madison

This Article reviews recent developments in the law of "access" to "information," that is, cases involving click-through agreements, the doctrine of trespass to chattels, the anti-circumvention provisions of the Digital Millennium Copyright Act, and civil claims under the Computer Fraud and Abuse Act. Though the objects of these different doctrines substantially overlap, the different doctrines yield different presumptions regarding the respective rights of information owners and information consumers. The Article reviews those presumptions in light of different metaphorical premises on which courts rely: Internet-as-place, in the trespass, DMCA, and CFAA contexts, and contract-as-assent, in the click-through context. It argues that …

Contract, Property, And The Role Of Metaphor In Corporations Law, Thomas W. Joo

Thomas W Joo

Cognitive scientists have described the role of metaphor as the attempt to understand one domain of knowledge (the "target") in terms of another (the "source"). Corporations law scholarship is currently dominated by a metaphor which attempts to explain corporations in terms of contracts. This "contractarian" metaphor derives from the economic model of the "firm" as a set of "contracts." The legal version of the metaphor exhibits confusion about both its target and its source. The economic concept of the "firm" is not equivalent to the legal concept of the "corporation." Nor is the economic "contract," a voluntary reciprocal relationship, equivalent …