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Law As Palimpsest: Conceptualizing Contingency In Judicial Opinions (Forthcoming 2009), Bret Asbury

Bret Asbury

Metaphors create conceptualizations, and for decades legal academics have employed metaphors to shape understandings of legal problems. But no metaphor in current use successfully conceptualizes the contingency of judicial opinions and the complexity of the relationship between opinions and precedent. This Article seeks to fill this void by introducing a new metaphor, the palimpsest, into the realm of legal analysis. A palimpsest is a writing surface that can be cleared away for reuse, like a personal blackboard. What distinguishes a palimpsest from other writing surfaces is that its removed contents do not disappear, but remain, obscured yet recoverable: A writing …