Metaphor and Analogy- The Sun and Moon of Legal Persuasion
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Metaphor and Analogy- The Sun and Moon of Legal Persuasion
T Ĩ\TT\ ĩ I WILLIAM s. BOYDUrNJLV I SCHOOL OF LAWScholarly Commons @ UNLV Boyd LawScholarly WorksFaculty Scholarship2013Metaphor and Analogy: The Sun Metaphor and Analogy- The Sun and Moon of Legal Persuasion and Moon of Legal PersuasionLinda L. Bergerơn/vers/ty of Nevada. Las Vegas - William s Boyd School of LawFollow this and additional works at: https://scholars.law.unlv.edu/facpub& Part of the Cognition and Perception Commons, Cognitive Psychology Commons. Legal Writing and Research Commons, and the Metaphor and Analogy- The Sun and Moon of Legal Persuasion Rhetoric and Composition CommonsRecommended CitationBerger, Linda L., Metaphor and Analogy: The Sun and Moon of Legal Persuasion" (2013). Scholarly WMetaphor and Analogy- The Sun and Moon of Legal Persuasion
orks. 895.https://scholarslaw.unlv.edu/facpub/895This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository T Ĩ\TT\ ĩ I WILLIAM s. BOYDUrNJLV I SCHOOL OF LAWScholarly Commons @ UNLV Boyd LawScholarly WorksFaculty Scholarship2013Metaphor and Analogy: The Sun Metaphor and Analogy- The Sun and Moon of Legal PersuasionPHOR AND ANALOGY: THE SUN AND MOON OF LEGAL PERSUASIONLinda L. Berger*If we insist upon confining ourselves to scrupulously rational modes of thought and discussion,... this may well have the effect of granting inappropriate influence to pre-existing biases.... Against this, harnessing the power of Metaphor and Analogy- The Sun and Moon of Legal Persuasionimagination to reconfigure our thoughts by more intuitive means may enable US to counteract these biases in a more thoroughgoing way.* 1IntroductionMeMetaphor and Analogy- The Sun and Moon of Legal Persuasion
taphor and analogy are the sun and moon of legal persuasion. But which is the sun and which is the moon? Metaphor is the sun, according to linguist GeT Ĩ\TT\ ĩ I WILLIAM s. BOYDUrNJLV I SCHOOL OF LAWScholarly Commons @ UNLV Boyd LawScholarly WorksFaculty Scholarship2013Metaphor and Analogy: The Sun Metaphor and Analogy- The Sun and Moon of Legal Persuasionr that* Linda L. Berger is Family Foundation Professor of Law, William s. Boyd School of Law, University of Nevada, Las Vegas. Thank you to Kathy Stanchi, Sara Gordon, Terry Pollman, and the organizers of and other participants in the Brooklyn Symposium on Cognitive Bias and Persuasion.1Elisabeth Ca Metaphor and Analogy- The Sun and Moon of Legal Persuasionmp, Two Varieties of Literary Imagination: Metaphor, Fiction, and Thought Experiments, in 33 Midwest Studies in Philosophy 107, 128 (Peter A. French eMetaphor and Analogy- The Sun and Moon of Legal Persuasion
d., 2009) (hereinafter Camp, Two Varieties of Literary Imagination].2See, e.g., Mark. Johnson, The Body in the Mind: The Bodily Basis of Meaning, ImagT Ĩ\TT\ ĩ I WILLIAM s. BOYDUrNJLV I SCHOOL OF LAWScholarly Commons @ UNLV Boyd LawScholarly WorksFaculty Scholarship2013Metaphor and Analogy: The Sun Metaphor and Analogy- The Sun and Moon of Legal Persuasionakoff, Women, Fire, and Dangerous Things: What Categories Reveal About the Mind (1987); George Lakoff & Mark Johnson, Metaphors We Live By (1980) [hereinafter147148JOURNAL OF LA WAND POLICYanalogy is like the sun because analogy fills the sky of human cognition.3 And when Romeo proclaims that Juliet Metaphor and Analogy- The Sun and Moon of Legal Persuasion is the sun, Romeo is asking US to view Juliet through a perspective that reflects light on certain of her features and not others: “her beauty, her uMetaphor and Analogy- The Sun and Moon of Legal Persuasion
niqueness, and the warmth with which she fills his heart.”4For those interested in legal persuasion, metaphor and analogy constitute both sun and moonT Ĩ\TT\ ĩ I WILLIAM s. BOYDUrNJLV I SCHOOL OF LAWScholarly Commons @ UNLV Boyd LawScholarly WorksFaculty Scholarship2013Metaphor and Analogy: The Sun Metaphor and Analogy- The Sun and Moon of Legal Persuasionhor and analogy are the primary ways in which we are able to see one thing “as” another, they are the primary ways in which we understand new information (here’s a comparable example)', determine where something new likely fits (that looks like the right slot)’, or suggest a different point of view Metaphor and Analogy- The Sun and Moon of Legal Persuasion(now I see what you mean).According to recent cognitive research into the processing of analogy and metaphor, the important distinction is not betweenMetaphor and Analogy- The Sun and Moon of Legal Persuasion
metaphor and analogy but rather between novel and conventionalLakoff & Johnson, Metaphors]; George Lakoff & Mark Johnson, Philosophy in the flesh: ThT Ĩ\TT\ ĩ I WILLIAM s. BOYDUrNJLV I SCHOOL OF LAWScholarly Commons @ UNLV Boyd LawScholarly WorksFaculty Scholarship2013Metaphor and Analogy: The Sun Metaphor and Analogy- The Sun and Moon of Legal Persuasionhe FOREST; LAW, Life, and Mind (2001).3Although he docs not actually claim that analogy is like the sun, Hofstadter uses a related metaphor: “[A]nalogy is anything but a bitty blip [in the broad blue sky of cognition]—rather, it’s the very blue that fills the whole sky of cognition—analogy is everyt Metaphor and Analogy- The Sun and Moon of Legal Persuasionhing, or very nearly so, in my view.” Douglas R. Hofstadter, Epilogue: Analogy as the Core of Cognition, in The Analogical Mind: Perspectives from cogMetaphor and Analogy- The Sun and Moon of Legal Persuasion
nitive science 499, 499 (Dedre Gentner Ct al. eds., 2001).4Elisabeth Camp, Showing Telling and Seeing: Metaphor and “Poetic” Language, 3 Baltic Int’l T Ĩ\TT\ ĩ I WILLIAM s. BOYDUrNJLV I SCHOOL OF LAWScholarly Commons @ UNLV Boyd LawScholarly WorksFaculty Scholarship2013Metaphor and Analogy: The Sun Metaphor and Analogy- The Sun and Moon of Legal Persuasionuliet act 2, sc. 2, has been explained in different ways. See Dan Hunter, Teaching and Using Analogy in Law, 2 J. ALWD 151, 155 (2004) (describing it as an explicit similarity likening Juliet to the ‘‘light of his world”); Dedrc Gentner, Structure-Mapping: A Theoretical Framework for Analogy, 7 Cogn Metaphor and Analogy- The Sun and Moon of Legal Persuasionitive SCI. 155, 162 (1983) [hereinafter Gentner, Structure-Mapping] (describing it as chiefly conveying spatial and emotional relationships rather thaMetaphor and Analogy- The Sun and Moon of Legal Persuasion
n similar features: Juliet appears above him and brings him hope).METAPHOR AND ANALOGY149metaphors.5 This research suggests that novel characterizatioT Ĩ\TT\ ĩ I WILLIAM s. BOYDUrNJLV I SCHOOL OF LAWScholarly Commons @ UNLV Boyd LawScholarly WorksFaculty Scholarship2013Metaphor and Analogy: The Sun Metaphor and Analogy- The Sun and Moon of Legal Persuasioning emerges not because new information has been provided to the reader, but instead because the reader is able to perceive and interpret the available information in a new way. The shift is not in what we see (content) but in how we see (perspective).7The analysis and suggestions that follow rely o Metaphor and Analogy- The Sun and Moon of Legal Persuasionn two key findings from cognitive researchers: (1) metaphors follow a career path as they evolve from being new to becoming conventional, and (2) noveMetaphor and Analogy- The Sun and Moon of Legal Persuasion
l metaphors tend to be more capable of generating knowledge while conventional metaphors tend to provide categories into which new information is unthT Ĩ\TT\ ĩ I WILLIAM s. BOYDUrNJLV I SCHOOL OF LAWScholarly Commons @ UNLV Boyd LawScholarly WorksFaculty Scholarship2013Metaphor and Analogy: The Sun Metaphor and Analogy- The Sun and Moon of Legal Persuasionel because they have not previously been used within a specific context or as a basis for comparison to a particular target. For example, although property rights are often described as a bundle of sticks, it might be considered novel to describe privacy rights in5Although there are obvious connecti Metaphor and Analogy- The Sun and Moon of Legal Persuasionons, the analogy research described here is based on the broader category of analogy rather than the familiar legal arguments based on analogizing toMetaphor and Analogy- The Sun and Moon of Legal Persuasion
or distinguishing from a precedential case.6Dedre Gentner et al., Metaphor is Like Analogy, in The Analogical Mind: Perspectives from Cognitive SciencT Ĩ\TT\ ĩ I WILLIAM s. BOYDUrNJLV I SCHOOL OF LAWScholarly Commons @ UNLV Boyd LawScholarly WorksFaculty Scholarship2013Metaphor and Analogy: The Sun Metaphor and Analogy- The Sun and Moon of Legal Persuasionvaries as a metaphor moves along a continuum from novel to conventional).T Ĩ\TT\ ĩ I WILLIAM s. BOYDUrNJLV I SCHOOL OF LAWScholarly Commons @ UNLV Boyd LawScholarly WorksFaculty Scholarship2013Metaphor and Analogy: The SunGọi ngay
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