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Making Sense of Metaphors: Visuality, Aurality and the Reconfiguration of American Legal Discourse

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Making Sense of Metaphors: Visuality, Aurality and the Reconfiguration of American Legal Discourse Pittsburgh University School of Law Scholarship@PITT LAW Articles Faculty Publications 1994 Making Sense of Metaphors: Visuality, Aurality and the Reconfiguration of American Legal Discourse Bernard J. Hibbitts University of Pittsburgh School of Law, [email protected] Follow this and additional works at: https://scholarship.law.pitt.edu/fac_articles Recommended Citation Bernard J. Hibbitts, Making Sense of Metaphors: Visuality, Aurality and the Reconfiguration of American Legal Discourse, 16 Cardozo Law Review 229 (1994). Available at: https://scholarship.law.pitt.edu/fac_articles/122 This Article is brought to you for free and open access by the Faculty Publications at Scholarship@PITT LAW. It has been accepted for inclusion in Articles by an authorized administrator of Scholarship@PITT LAW. For more information, please contact [email protected], [email protected]. ARTICLES MAKING SENSE OF METAPHORS: VISUALITY, AURALITY, AND THE RECONFIGURATION OF AMERICAN LEGAL DISCOURSE Bernard J.Hibbitts* TABLE OF CONTENTS INTRODUCTION: "AN EAR FOR AN EYE" .................... 229 I. METAPHORS IN LIFE AND LAW ........................ 233 II. "MIRRORS OF JUSTICE": VISUALITY AND LEGAL D ISCOURSE ............................................. 238 A . Seeing Culture ..................................... 238 B. Visuality and Power ................................ 264 C. Law and the Phenomenology of Sight ............. 291 III. "FAIR HEARINGS": AURALITY AND THE NEW LEGAL LANGUAGE ............................................ 300 A. Hearing Culture .................................... 301 B. Aurality and Diversity .............................. 328 C. Law and the Phenomenology of Sound ............ 340 CONCLUSION: LAW RE-VIEWED ............................... 350 INTRODUCTION: "AN EAR FOR AN EYE"' While American legal discourse has embraced a range of fig- urative expressions evoking all sorts of sensory experience, 2 it has * Associate Professor, University of Pittsburgh School of Law; B.A. (Juris.), Oxford University, 1983; LL.B., Dalhousie University, 1984; LL.M., University of Toronto, 1986; LL.M., Harvard Law School, 1988. I am very grateful to Jody Armour, Harry Flechtner, Candice Hoke, and Jules Lobel for both their support of this novel project and their in- sightful comments on various preliminary drafts. I am also indebted to Wes Pue, who invited me to present a version of this paper at the Annual Meeting of the Law and Society Association in Phoenix, Arizona in June 1994. Last, but certainly not least, I would like to thank my research assistants, Gary Wenig and Leah Schmulewitz, for their numerous and invaluable contributions to the cause. Responsibility for any mistakes or errors of inter- pretation contained herein is, of course, mine alone. 1 MARSHALL McLUHAN, UNDERSTANDING MEDIA: THE EXTENSIONS OF MAN 130 (1964). 2 E.g., "free speech" (hearing); "hard cases" (touching); taking the "bitter with the sweet" (tasting, used by then Justice Rehnquist to describe a statutory limitation of a statu- torily granted procedural right in Arnett v. Kennedy, 416 U.S. 134, 154 (1974)). CARDOZO LAW REVIEW [Vol. 16:229 long favored visual metaphors. We frequently consider law as a matter of looking: we "observe" it; we evaluate claims "in the eye of the law"; 3 our high courts "review" the decisions of inferior tribunals. Alternatively, we speak of law as something one would usually look at: it is a "body," a "text," a "structure," a "bulwark of freedom,' ' a "seamless web,''5 and even a "magic mirror. ''6 We identify particular legal concepts with striking visual images: prop- erty rights are a "bundle of sticks";7 a long-standing constitutional principle is a "fixed star";8 a sequence of ownership is a "chain of title." 9 We associate legal reasoning with the manipulation of visi- ble geometric forms: we try to "square" precedents with one an- other;10 we repeatedly agonize over "where the line [between different doctrines and situations] can be drawn."'1 We discuss le- gality in terms of light and darkness: we search for "bright-line"' 2 tests; we consider an area of concurrent jurisdiction to be a "zone of twilight"; 3 we seek to extend constitutional protections by prob- ing the shadowy "penumbras' 4 of well-known guarantees. With the aid of metaphor, we go so far as to give law the visual quality of hue: we may make a property claim under "color of title";' 5 we 3 See, e.g., Plessy v. Ferguson, 163 U.S. 537, 559 (1896). For a more recent use of the phrase, see Herrera v. Collins, 113 S. Ct. 853, 860 (1993). 4 For a discussion and critique of this metaphor for law, see MILNER S. BALL, LYING DOWN TOGETHER: LAW, METAPHOR AND THEOLOGY 23-27 (1985). 5 See, e.g., Beer v. United States, 425 U.S. 130, 148 n.4 (1975); Kenneth W. Starr, The Seamless Web of State and Federal Law, 26 S. TEX. L.J. 175 (1985). 6 The "[1]aw, wherein, as in a magic mirror, we see reflected, not only our own lives, but the lives of all men that have been! When I think on this majestic theme, my eyes dazzle." OLIVER W. HOLMES, JR., The Law, in THE OCCASIONAL SPEECHES OF JUSTICE OLIVER WENDELL HOLMES 20, 21 (Mark DeWolfe Howe ed., Harvard Univ. Press 1962) (1913). More recently, see KERMIT L. HALL, THE MAGIC MIRROR: LAW IN AMERICAN HISTORY (i989). 7 See, e.g., Andrus v. Allard, 444 U.S. 51, 65-66 (1979). For an extended discussion of this metaphor, see Thomas Ross, Metaphor and Paradox, 23 GA. L. REV. 1053, 1055-63 (1989). 8 See, e.g., West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). 9 See, e.g., Georgia v. South Carolina, 497 U.S. 376, 391 (1990). l0 See, e.g., General Box Co. v. United States, 351 U.S. 159, 169 (1955). 11 See, e.g., Schlesinger v. Wisconsin, 270 U.S. 230, 241 (1926). More recently, see Jo- seph L. Hoffman, On the Perils of Line Drawing:Juveniles and the Death Penalty, 40 HAS- TINGS L.J. 229 (1989). 12 See, e.g., Quill Corp. v. North Dakota, 112 S. Ct. 1904, 1914 (1992); see also Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. Prrr. L. REV. 227 (1984); cf Cary v. Westinghouse Elec. Corp., 375 U.S. 261, 268 (1964) (referring to a "blurred line"). 13 See Youngstown Sheet & .Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952). 14 See generally Burr Henly, "Penumbra": The Roots of a Legal Metaphor, 15 HAS- TINGS CONST. L.Q. 81 (1987). 15 See generally Monica K. Kalo, The Doctrine of Color of Title in North Carolina, 13 N.C. CENT. L.J. 123 (1982). 19941 MAKING SENSE OF METAPHORS discourage "yellow dog" contracts16 and make securities trading subject to "blue sky" laws;17 for good or ill, we frequently adhere to 8 "black letter" rules.' This visual language has become far too well-entrenched and is far too convenient to be universally or summarily abandoned. In recent years, however, a noteworthy number of legal scholars (if not yet many judges or practitioners) have cast some of their best writing in aural metaphors. Most of these individuals subscribe to a broadly "critical" legal philosophy; many are exponents of dis- tinctively feminist, African American, Hispanic, or Jewish ap- proaches to jurisprudence. Their work characterizes law as a matter of "voice": 19 'afigurative "speaking," and even, on occa- sion, a "singing"" in which institutions, groups, and individuals should all be articulate participants. Some voices are strong, some are weak, and some-generally those of the oppressed or the marginalized-must first be freed from the shackles of "silence."'" Fairness demands "hearing" and carefully "listening" to all of these voices. 2 The new legal literature's metaphorical emphasis on the 16 See, e.g., NLRB v. Sevette, Inc., 377 U.S. 46, 48 n.2 (1964). 17 See, e.g., Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 308 n.4 (1988). See gener- ally Jonathan R. Macey, Origin of the'Blue Sky Laws, 70 TEX. L. REV. 347 (1991). 18 See, e.g., Associated Gen. Contractors v. California State Council of Carpenters, 459 U.S. 519, 536 (1982); John A. Ellis, Quasi-estoppel: Black-Letter Rule of Law in Family Law Cases, 20 BEVERLY HILLS B. Ass'N J.156 (1986). 19 See, e.g., Jerome M. Culp, Jr., Voice, Perspective, Truth, and Justice: Race and the Mountain in the Legal Academy, 38 Loy. L. REv. 61 (1992); Richard Delgado, When a Story is Just a Story: Does Voice Really Matter?, 76 VA. L REV. 95 (1990); Julius G. Getman, Voices, 66 TEX. L. REV. 577 (1988); Benita Ramsey, Excluded Voices: Realities in Law and Law Reform, 42 U. MIAMI L. REV. 1 (1987); Mark G. Yudof, "Tea at the Palaz of Hoon": The Human Voice in Legal Rules, 66 TEX. L. REV. 589 (1988). , 20 See, e.g., Robert H. Abrams, Sing Muse: Legal Scholarshipfor New Law Teachers, 37 J. LEGAL EDUC. 1 (1987); Allan C. Hutchinson, Democracy and Determinacy:An Essay on Legal Interpretation,43 U. MIAMI L. REV. 541, 542 (1989) (discussing "Law's Song"); Karl Johnson & Ann Scales, An Absolutely, Positively True Story: Seven Reasons Why We Sing, 16 N.M. L. REV. 433 (1986); Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860, 1861 (1987) (observing that "[l]egal language, like a song, can be hummed by someone who did not write it and chanted by those for whom it was not intended"). 21 For discussions of "silence" and "silencing," see Lucinda Finley, Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, 64 NOTRE DAME L. REV. 886 (1989); Robin West, Feminism, Critical.Social Theory and Law, 1989 U. CHI. LEGAL F. 59.' 22 See, e.g., Julius G. Getman & F. Ray Marshall, Industrial Relations in Transition: The Paper Industry Example, 102 YALE L:J.
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