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15 Hastings Const. L.Q. 81 (1987-1988)
Penumbra: The Roots of a Legal Metaphor

handle is hein.journals/hascq15 and id is 99 raw text is: Penumbra: The Roots of a Legal Metaphor By BURR HENLY* Introduction Metaphors in law are to be narrowly watched, for starting out as devices to liberate thought, they end often by enslaving it.' Between truth and untruth there lies a penumbral zone which belongs to both; and I have often admired the adroitness with which Mr. Chamberlain sails within the 'half-shadow.' 2 Language in law is rife with metaphors. Judges and commentators have created a legal landscape inhabited with, among other things, slip- pery slopes,3 bright and blurred lines,4 constitutional foothills,5 scales of justice,6 level playing fields,7 and a wall of separation between church and state.' Metaphors are not just illustrations offering graphic images or concrete versions of legal concepts. They are models-shorthand ver- sions of reality that emphasize or exclude in order to make a point. Like many models, metaphors portray one part of experience by borrowing terms associated with another part. Thus, they require a jump from one category of experiences and related descriptive terms to another. Metaphors that are overtly spatial involve the most obvious kind of * J.D., Yale Law School, 1987; Associate, Cleary, Gottlieb, Steen & Hamilton, New York. The author wishes to thank Jan G. Deutsch of the Yale Law School for advice on an earlier draft of this Article. 1. Berkey v. Third Ave. Ry., 244 N.Y. 84, 94, 155 N.E. 58, 61 (1926) (Cardozo, J.). 2. Tyndall, Letter to the Editor, The Times (London), Nov. 26, 1884, at 6, col. 6. 3. See, e.g., Commodity Futures Trading Comm'n v. Schor, 106 S. Ct. 3245, 3258 (1986). 4. See, e.g., Young v. United States ex rel. Vuitton et Fils S.A., 107 S. Ct. 2124, 2140 n.23 (1987) (bright-line); Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 268. (1964) (blurred line). 5. See, e.g., Communist Party of the United States v. Subversive Activities Control Bd., 367 U.S. 1, 131 (1961) (Warren, C.J., dissenting). 6. See, e.g., In re Murchison, 349 U.S. 133, 136 (1955). 7. See, e.g., Southern Natural Gas Co. v. Federal Energy Regulatory Comm'n, 813 F.2d 1111, 1112 (11th Cir. 1987). 8. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 673 (1984).

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