Wednesday, February 25, 2009
I'd like to thank Ruth Ann McKinney of Carolina Law and give her credit for conceptualizing this metaphor and introducing me to it while I was a law student.
One of the concepts my students have struggled with this semester is the importance of what is left out of the court's opinion. For students with a background in the arts, an apt metaphor is to space in a sculpture. When looking at a great sculpture, it's not just what the artist does with the clay, steel, or marble that is significant. The beauty and meaning of the sculpture is also shaped by the space in and around the sculpture, where the artist has chosen to remove, carve, or shape the sculpture. Similarly, the court's opinion is shaped not just by what facts they choose to include in their rationale, but the facts they choose to ignore, the facts they find irrelevant, and the thinking they choose not to explain in the holding. What is left out of an opinion is the space in the sculpture; it is what shapes the decision as much as the material used to create the sculpture.
My favorite example is Robert Indiana's Love sculpture. It is ubiquitous, so most students know it if I reference it as an example. Without space in the sculpture, the places where the artist choose to remove steel, it would be a giant block of metal, not one of the most important pieces of pop art of our time. An opinion that includes all facts, policy, and thinking about the case would be a giant stack of paper without any direction or meaning. (RCF)