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Metaphor and Reason in Judicial Opinions

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To the public, judges handing down judicial decisions present arguments arrived through rational discourse and literal language. Yet, as Judge Richard Posner has pointed out, "Rhetorical power counts for a lot in law. Science, not to mention everyday thought, is influenced by metaphors. Why shouldn’t law be?" Haig Bosmajian examines the crucial role of the trope—metaphors, personifications, metonymies—in argumentation and reveals the surprisingly important place that figurative,...

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Overview

To the public, judges handing down judicial decisions present arguments arrived through rational discourse and literal language. Yet, as Judge Richard Posner has pointed out, "Rhetorical power counts for a lot in law. Science, not to mention everyday thought, is influenced by metaphors. Why shouldn’t law be?" Haig Bosmajian examines the crucial role of the trope—metaphors, personifications, metonymies—in argumentation and reveals the surprisingly important place that figurative, nonliteral language holds in judicial decision making.

Focusing on the specific genre of the legal opinion, Professor Bosmajian discusses the question of why we have judicial opinions at all and the importance of style in them. He then looks at specific well-known figures of speech such as "the wall of separation" between church and state, justice personified as a female, or the Constitution as "colorblind," explaining why they are not straightforward statements of legal fact but examples of the ways tropes are used in legal language.

A useful example can be found in Judge Learned Hand’s response to a 1943 case involving news gathering and monopoly. Hand found the need to protect the public’s right to the "dissemination of news from as many different sources, and with as many different facets and colors possible," an interest "closely akin to, if indeed it is not the same as, the interest protected by the First Amendment; it presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be folly; but we have staken upon it our all."

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Editorial Reviews

Booknews
Bosmajian demonstrates that tropes in legal cases are far more than mere rhetorical flourishes, refuting conventional wisdom that judicial discourse is literal. Focusing on influential First Amendment court decisions, he analyzes personification, metonymy, and especially metaphor. Such tropes, he finds, are integral to judicial argument, essential even to the point of being referred to as standards and doctrines. Annotation c. Book News, Inc., Portland, OR (booknews.com)
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Product Details

  • ISBN-13: 9780809316120
  • Publisher: Southern Illinois University Press
  • Publication date: 7/31/1992
  • Edition description: 1st Edition
  • Pages: 256
  • Lexile: 1650L (what's this?)
  • Product dimensions: 5.50 (w) x 8.50 (h) x 0.75 (d)

Meet the Author

Haig Bosmajian is a professor in the Department of Speech Communication at the University of Washington, Seattle. Among his many books and publications is The Language of Oppression, which received the 1983 NCTE George Orwell Award.

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Table of Contents

Preface
Introduction 1
1 The Functions of the Judicial Opinion 19
2 Style and Tropes 35
3 The Metaphoric "Marketplace of Ideas" 49
4 The Metaphoric "Wall of Separation" between Church and State 73
5 The Metaphoric "Chilling Effect" and Related Tropes 95
6 The Metaphoric "Captive Audience" 118
7 "Shedding" Rights at the "Schoolhouse Gate" and Other Judicial Metonymies 144
8 Personifying Justice, the Constitution, and Judicial Opinions 167
9 Metaphorizing Speech into "Fire" Leading to a "Conflagration" 186
Conclusion 199
Notes 209
Index 231
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