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

While American legal discourse has embraced a range of figurative expressions evoking all sorts of sensory experience, it has 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"; 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,'' and even a "magic mirror." We identify particular legal concepts with striking visual images: property rights are a "bundle of sticks"; a long-standing constitutional principle is a "fixed star"; a sequence of ownership is a "chain of title." We associate legal reasoning with the manipulation of visible geometric forms: we try to "square" precedents with one another; we repeatedly agonize over "where the line [between different doctrines and situations] can be drawn." We discuss legality in terms of light and darkness: we search for "bright-line" tests; we consider an area of concurrent jurisdiction to be a "zone of twilight"; we seek to extend constitutional protections by probing the shadowy "penumbras" 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"; we discourage "yellow dog" contracts and make securities trading subject to "blue sky" laws; for good or ill, we frequently adhere to "black letter" rules.