Tuesday, June 6, 2017
Carrie Sperling and Kimberly Y. W. Holst (University of Wisconsin Law School, Frank J. Remington Center and Arizona State University) have posted Do Muddy Waters Shift Burdens? (Maryland Law Review, Vol. 76, No. 3, 2017) on SSRN. Here is the abstract:
Metaphor has long been touted as a powerful tool of persuasion. Ancients said it. Social scientists have tested it. Legal scholars have hypothesized that a metaphorical framework shapes the way we understand and apply the law. However, we hypothesize that metaphor may be even more powerful than legal scholars have believed — that it can actually supplant the intended operation of the law, thwart legislative intent, yet remain hidden from critique. In this Essay, we support our hypothesis by following the use of a particular metaphor from its first reference in a judicial opinion through its eventual incorporation into doctrine despite subsequent legislative changes to the law. We demonstrate that the use of the metaphor has almost certainly acted as a stealth legal test, in direct opposition to the test the legislature originally constructed and later amended. By tracing the metaphor through its journey in the Texas courts, we aim not only to illustrate the power of metaphor, but to alert practitioners and scholars to the dangers of metaphor in the legal context.