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Do Muddy Waters Shift Burdens?

35 Pages Posted: 28 May 2017 Last revised: 20 Jun 2017

Carrie Sperling

University of Wisconsin Law School, Frank J. Remington Center

Kimberly Y. W. Holst

Arizona State University, Sandra Day O'Connor Coll

Date Written: May 1, 2017

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.

Keywords: rhetoric, metaphor, DNA testing, Texas, statutes, Criminal code, judicial decisions, bias, legislative intent, practitioner, court

JEL Classification: K49, K00, K14, K19

Suggested Citation

Sperling, Carrie and Holst, Kimberly Y. W., Do Muddy Waters Shift Burdens? (May 1, 2017). 76 Maryland Law Review 629 (2017); Univ. of Wisconsin Legal Studies Research Paper No. 1417. Available at SSRN: https://ssrn.com/abstract=2975528

Carrie Sperling

University of Wisconsin Law School, Frank J. Remington Center ( email )

975 Bascom Mall
Madison, WI 53706
United States

Kimberly Holst (Contact Author)

Arizona State University, Sandra Day O'Connor Coll ( email )

MC 9520
111 E Taylor St
Phoenix, AZ 85004-4467
United States

HOME PAGE: http://apps.law.asu.edu/Apps/Faculty/Faculty.aspx?individual_id=69702

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