Journal article
Law as Palimpsest: Conceptualizing Contingency in Judicial Opinions
Alabama law review, v 61(1), pp 121-164
2009
Abstract
Metaphors create conceptualizations, and for decades legal academics have employed metaphors to shape understandings of legal problems. But no metaphor in current use adequately conceptualizes the contingency of judicial opinions and the complexity of the relationship between opinions and precedent. This Article seeks to fill this void by introducing a new metaphor, the palimpsest, into the realm of legal analysis. A palimpsest is a writing surface that can be cleared away for reuse, like a personal blackboard. What distinguishes a palimpsest from other writing surfaces is that its removed contents do not disappear, but remain, obscured yet recoverable: A writing on a palimpsest never goes away. This Article argues that thinking of judicial opinions as being part of a shared, ever-evolving palimpsest underscores the fact that they are ulti- mately contingent and serves as a reminder of the multiple levels of inter- connectedness between them and the cases they cite. Precedents—like the underlayers of a palimpsest—never go away, and they inform and shape the application of opinions in ways far more significant than simply serv- ing as points of reference. A palimpsestic approach to understanding judi- cial decision making also helps to explain why even the oldest, most des- pised cases remain part of our national psyche—like underlayers of a pa- limpsest, they can never truly disappear, and their continued presence forces us to grapple with their existence. Finally, considering judicial opi- nions as part of a shared palimpsest reminds us that even the most troub- ling opinion is ultimately contingent, its application subject to reexamina- tion and revision by future courts and future generations. Just as such an opinion replaces its precedents, it too will one day be replaced, like each of a palimpsest’s layers.
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Details
- Title
- Law as Palimpsest: Conceptualizing Contingency in Judicial Opinions
- Creators
- B.D Asbury - Drexel University
- Publication Details
- Alabama law review, v 61(1), pp 121-164
- Publisher
- University of Alabama
- Number of pages
- 43
- Resource Type
- Journal article
- Language
- English
- Academic Unit
- Thomas R. Kline School of Law
- Other Identifier
- 991020534922604721