RECOGNIZING LEGAL TROPES:
METONYMY AS MANIPULATIVE
MODE*
JUDITH
A. HARIs**
INTRODUCTION
The law would be not only wholly effete, but also excruciatingly
dull were it to ignore the phenomena that pervade and surround it.
Consequently, the most energetic and emancipatory legal analyses
are those in which legal theorists concentrate on the phenomena of
twentieth century thought such as semiotics, structuralism, and
deconstruction to challenge areas of the legal system most in need
of change. Critics of these analyses, however, might characterize
them as fraught with a menacing ethereality and an unnecessary
complexity that presumably have no place in describing the "way
the law really is." In this Article, I try to diffuse these criticisms by
providing a practical example of such an analysis and pointing out
its benefits.
Nearly three decades ago the Russian Formalist Roman Jakobson
wrote The Metaphoricand Metonymic Poles,I a study linking qualities of
literature and everyday speech to fundamental perceptive tendencies in human beings. 2 Jakobson's study explores varied discourse in
several "natural" languages. My project is a little different. I shall
apply his study to a few languages or "voices," if you will, that I both
hear and speak on a regular basis as a woman, a law student, and
one who is "user-friendly" in modes of human discourse.
In his linguistic study, Jakobson creates a model composed of a
metaphoric pole and a metonymic pole$ to describe a conceptual
Q 1985, Judith A. Harris.
J.D. expected 1986, Washington College of Law, The American University.
1. Jakobson & Halle, The Melaphorcand Metonymic Poles, in FUNDAMENTALS OF LANGUAGE
*
**
76-82 (1956). This essay is part of a larger study of various language disorders.
2. Id at 79, 80.
3. Id at 76. Metonymy is a figure ofspeech that consists of using the name of one thing
for that of something else with which it is associated. See WEBSTER'S THiRD Naw INTERNATIONAL DIcToNARY 1424 (1976).
1215
1216
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 34:1215
disorder that causes afflicted people to express their perception of
reality in terms of either similarities or constituent parts of things or
ideas. 4 Jakobson's concern for this disorder is the way in which conceptual irregularity manifests itself in people's use of language.5 He
claims that although normal discourse involves an interplay of both
poles, 6 the two are not evenly balanced. In fact, the prevalence of
one mode over the other is semantically clear as well as socially acceptable. This linguistic imbalance characterizes the expressive
styles of gifted thinkers and writers, providing both an element of
comedy and a "poetic quality" to their work.
An exploration of metonymy as a pervasive device in legal jargon,
statutes, and judicial opinions, reveals that it is representative of a
mode of thought which simultaneously emancipates and oppresses
while hiding within an ermine cloak of authority. The conventional
everyday use of metonymy, such as the use of epithets for women
and their visceral parts, appears to be quite a different sort of metonymy. It serves a different function and cannot be so masterfully
legitimized as its legal counterpart. Even so, both the conventional
and legal uses effect a solidification of already distorted perceptions.
In the discussion that follows I shall talk about the apparently disparate subjects of "blondes" and choice-of-law to show that they are
products of a single mode of thought.
I. JAKOBSON'S MODEL
A primary concern ofJakobson is the polarities that exist in linguistic performance.7 He fashions his model of human discourse in
terms of a set of axes; the horizontal metonymic axis that represents
contiguous and contextual ideas, and the vertical metaphoric axis
that represents substitutive or definitional ideas.8 He then characterizes aphasia9 as a dichotomy of disturbances; the inability to recognize similarities, or a disturbance of metaphor, in contrast with
the failure to develop a contiguity or hierarchy of linguistic units, or
a disturbance of metonymy.10 In aphasia, therefore, development of
4. SeeJakobson & Halle, supra note 1, at 76. Perception in terms of similarities is metaphoric, while perception in terms of constituent parts is metonymic.
5. Id.
6. Id
7. Id Terence Hawkes traces this bipolar model to the Saussurean notion of the
syntagmadc and associative planes. T. HAwxas, STRucruRALiSM AND SEMiOnCS 76 (1977).
8. See Appendix (illustratingJakobson's theory through colloquial expression).
9. Aphasia is the loss or impairment of the power to use words as symbols ofideas that
results from a brain lesion. WEBSTER'S THIRD Naw INrNAroNA. DiCTIoNARY 99 (4th ed.
1976).
10. Jakobson & Halle, supra note 1, at 76.
1985]
METONOMY AS MANIPULATIVE MODE
1217
discourse focuses primarily on one axis. A person having a similarity disorder might respond to the word "foot" with "sneaker,"
"itch," "leg," or another word commonly associated with foot. A
person with a contiguity disorder would consistently respond with
synonyms or antonyms, or might even repeat "foot," because of an
inability to perceive associative relationships. These sorts of responses occur to a far lesser extent in everyday speech by
nonaphasics, as well.
A simple illustration of the metaphoric and metonymic modes at
work in "normal" everyday language is the following: "As the embezzling manager of Mammoth Manufacturing, Inc. slithered out of
his office that evening, City Hall was hard at work pondering ways of
salvaging Tinkertown's largest corporation." This sentence comprises two poetic clauses in which the operative terms are "slithered" and "City Hall." Metaphor is at work in the former, in which
the stealthy departure of the manager is likened to that of a snake.
The latter clause relies on metonymy, the device by which the City
Hall building comes to represent the mayor and the council members. While the first clause involves a substitution of similar elements, the second clause depends on a contextual relationship
between the mayor and council members and their replacement.
Overall, these two devices characterize the manager as a dishonest
worker and the government officials as the City Hall building. This
passage is further enhanced by irony because the two counterproductive events occur simultaneously.
II.
METAPHOR AND METONYMY AS TROPES
A significant exploration in the uses of metaphor and metonymy
did, of course, prefigure the.Jakobsonian model.' Philosopher-scientist Giambattista Vico proposed in his seventeenth century work,
The New Science,12 that all speech was derived from four principal
tropes, or figures of speech, and that these tropes were basic to a
human understanding of the world.' 3 Vico's theory necessarily involves a psychological explanation of the human attraction for the
use of the four tropes: metaphor, metonymy, synecdoche and
irony.' 4 He attributed the use of metaphor to the human striving
11. See White, Foucault Decoded: Notes From Underground, in 12 HisToRY
(1973) (discussing uses of metaphor and metonymy in Foucault's writing).
12.
13.
14.
AND THEORY
48
G. Vico, THuE NEw SCIENCE, §§ 400-410, 443-446 (1968).
IdL §§ 404-409.
Simply stated, a trope is a figure of speech. See WEBSTER'S THIRD NEW INTERNA-
TIONAL DxCroNARY 2452 (4th ed. 1976). A metaphor is a comparison, using one word in
place of another to suggest likeness between two things. Id. at 1420. Examples of metaphor
are "raining like cats and dogs" or "she lives like a queen." Synecdoche is a kind of meton-
1218
THE
AMERICAN UNIVERSITY LAW REVIEW
[Vol. 34:1215
for sapienza poetica, or poetic wisdom. 15 In effect, use of this trope
enables the speaker to address the world at a distance, preferring
the poetic to the literal. One who perceives his or her lover's eyes as
"limpid pools" simultaneously satisfies the "poetic faculty" and enhances her world.
A Russian formalist notion related to Vico's theory is that of ostranenie, a term denoting the human perceptive tendency to "make
strange" or "to fashion modes of perception that counteract the
process of habituation."' 6 While this notion of ostranenie inheres
generally in those devices that we deem poetic, it is more an element
of metaphor than of metonymy. Metaphor looks outside the realm
of the referent to substitute it for a similar entity. Metonymy,
rather, focuses on the continguous entities and seeks to reduce
them to the status of their corresponding functions. 17 One can
render an expression strange using metonymy because metonymy
focuses on a select part or parts of a whole, thereby excluding other
parts. Most simply, metaphor relies on replacement, while metonymy relies on reduction or displacement. Moreover, metaphor
looks outside the structure, whereas metonymy disturbs or extracts
from the structure.
If a person characterizes the metaphoric and metonymic tropes in
terms of dynamics she might see the metaphoric mode as the more
creative and energetic. Likening one thing to another makes possible all sorts of further comparisons. In contrast, the metonymic
mode is stifling and energy sapping in its narrowing of semantic
focii. For this reason, the metonymic mode figures prominently in
the vocabulary of disempowerment.
III.
THE ANATOMY. OF METONYMY, OR COMPARATIVE MIGHTS IN
PEN AND SWORD
The most conventional use of the metonymic mode occurs in everyday epithets applied to persons, and runs a semantic gamut from
ymy in which a part is used for a whole. M.H. ABmRAs, A GLOSSARY OF LrrERAPY TERMs 65
(4th ed. 1981). Examples of synecdoche include "saluting the stars and stripes" and "she
brings home the bacon;" that is, if bacon is truly one of the many things she brings home.
Irony, as a trope, involves the expression of one idea and the implication of a very different
idea. Id at 89. For other uses of irony, see id at 90-98. For example, irony in its most base
form is sarcasm, such as calling a Trappist monk a "chatterbox."
15. G. Vico, supra note 12, at §§ 400-410, 443-446; see also T. HAWKES, supra note 7, at
15.
16. See T. HAWKES, supra note 7, at 62 (discussing Russian formalist Viktor Shklovsky's
notion of ostranenie). A powerful element ofAnthony Burgess'A Clockwork Orange is his demonstration of this tendency in the teenagers' use of hip, "horrorshow," half English/half Russian jargon. See A. BuRGEss, A CLOCKWORK ORANGE (1963).
17.
Seesupra note 11, at46.
1985]
METONOMY AS MANIPULATIVE MODE
1219
endearment to insult. The simplest and most frequent use of conventional metonymy, which I call "street" metonymy,' 8 involves the
naming of visceral parts: "doe-eyes" and "sweetheart" to "brain"
and "carrot-top" to "two-face," "big-mouth" and less poetically,
"asshole." Indeed, there are a good many of these epithets for every
instance and occasion-even some for which no appropriate instance exists.
The aforementioned uses, however, are unisex. I posit that the
most consistently derogatory and demeaning uses involve likening
the subject to his or her reproductive organs. 19 It is in this use, and
all the better if the part referred to is embellished with adjectives for
dysfunction or disfigurement, that the disempowering effect of metonymy is most obvious. This disempowerment can be seen even in
metonymies that have nothing to do with genitalia.
One of my childhood friends could not help breaking into tears
when faced with criticism by a teacher or unintentional embarrassment in front of other classmates. In no time she acquired the nickname Teargland, an epithet that effectively reduced her to a status
of function-a brine-manufacturing organ, let alone a slave of her
emotions. Callous classmates not so secretly marvelled as the functional status that they imposed on her overwhelmed her very positive attributes. They soon characterized her scholastic
accomplishments as magnificent feats of tear production, and her
very existence, thanks to a history lecture on Egypt and the Nile,
became synonymous with irrigation-all through a simple and cruel
transformation of metonymy to metaphor. It is probably easier to
grasp the manipulative effects of metonymy in such examples as
these, but metonymy may be used even more effectively in areas
where it is not so obvious. The law is just such an area.
IV.
DIAGNOSING LEGAL APHASIA
Metonymy pervades our legal system in the systemic qualities and
structures that we impose on societal behavior and in substantive
and procedural structures that dictate the way in which an individual
seeks a remedy, from the filing of a complaint to the awarding of
18. "Street" metonymy is, of course, metonymy itself.
19. Poesy hath a little pride here. Waiving unseemly examples, I note that Shakespeare
and other earlier dramatists capitalized on the humor inherent in this kind of metonymy with
rich imagery and clever puns derived from references to a man's "purse." In the Mferchant of
Venice, for example, Antonio's exchange with his friend Bossio might appear full of sexual
innuendo. "My purse, my person, my extremest means lie all unlock'd to your occasions." W.
SHirsPtRE,THE MERCHANT oF VENiCE, Act I., Sc. 1; cf."A heavy purse makes a light heart."
B. JoNsoN, THE NEW INN, Act I.,Sc. 1.
1220
THE
AMERICAN UNIVERSITY LAW REVIEW
[Vol. 34:1215
attorney's fees. Furthermore, legal education currently engenders
and sustains legal metonymies. Without raising a "chicken-or-egg"
debate, it is sufficient to say that the legal practice shares a symbiotic
relationship with education in this perpetuation. 20 The case
method, developed by legal scholar and Harvard law professor
Christopher Columbus Langdell, predicates itself on the discovery21
and isolation of certain issues and elements within a case that are
"essential" to all cases of that "nature" or "category. "22 This
method also assumes the superiority of appellate cases, thus focusing primarily on those cases brought by claimants wealthy enough
to appeal.
This metonymic tendency and the perceived need for categorization demand the teaching of fundamental legal principles in well defined substantive and procedural categories. 23 These operative
synthetic categories of law as we know them today figured rather
late in the development of jurisprudence, 24 an observation which
suggests that the act of categorizing is a response to social and economic changes, and a rejection of a former dependence on other
conceptual schemes to resolve legal disputes. 25 This categorization
20. See Kennedy, Legal Education As TrainingforHierarchy, in THE POLMCS OF LAw 40-61
(1982) (discussing first year law school experience, ideological content of law school curricuhum, and noncurricular practices of law schools that train students to accept and participate in
hierarchical structure of life in law). Duncan Kennedy might argue that it is legal practice that
has fashioned law school education as an hierarchical training ground. Id
21. Langdell was not the first "Christopher Columbus" whose slight error in judgment
caused significant reverberations.
22.
Robert B. Stevens characterizes the effects of the case method as that of training
"mere hired gladiators." Stevens, American Legal Scholarship: StructuralConstraintsand Intellectual
Conceptualism, 33 J. LEGAL Enuc. 442, 443 (1983).
23. ProfessorJay Feinman and his colleagues at Rutgers University Law School may have
offended classical legal theorists in this regard with their innovation of the first year "Contorts" course. Contorts combines contracts, torts and legal research and writing. See Feinman
&Feldman, Pedagogy and Politics, 73 GEO. L.J. 875 (1985) (describing contorts in theory and
practice).
The traditional case method, on the other hand, teaches these substantive and procedural
areas as separate categories of law. Subjected to a word association exercise, the well-trained
law student of the case method would thus respond to "Tarasoff" with "tort law," to "Shuey"
with "contract law" and to "McNaughten" with "'criminal law." Pressed further, she might
embellish the previously mentioned case names with "duty to warn," "revocation of offer to
the public," and "right-wrong insanity test," respectively. She would most likely cringe in
response to the suggestion that a single case may represent two or more separate issues or
doctrines-each relating to a distinct body of law.
24. Peter Gabel and Jay Feinman observe that eighteenth century legal commentator
William Blackstone did not consider contracts a separate body of the law, but rather a branch
of property law partially involving the transfer of the title of tangible things. Gabel &
Feinman, Contract Law as Ideology, in THE POLMTcs or LAw 172, 173-74 (1982).
25. Duncan Kennedy aptly views categorization as "a facet of legal thought concerned
with the discovery of conditions of sodaljustice" and as "an attempt to deny the truth of our
painfully contradictory feelings about the actual state of relations between persons in our
social world." Kennedy, The Structure of Blacstone's Commentaries, 28 BUFFALO L. REV. 205, 210
(1979).
1985]
METONOMY AS MANIPULATIVE MODE
1221
is found not only in the academic realm of "general legal principles," but also in the world of everyday legal practice.
The power of metonymy as a simplifier and a classifier in the legal
context encourages the use of it in political or manipulative ways. It
is no secret that the business of lawyering pragmatically assumes
much metonymizing. This is best exemplified in a hypothetical
where you are an attorney representing your client, Ms. y who enjoys a full and rewarding life. Like many people around her, however, she has problems. Recently, she suffered employment
discrimination, marital problems, and an injury caused by the management's negligence at her favorite swimming pool. She seeks to
rectify her present situation and also seeks financial redress. As her
lawyer you will endeavor to help her. y's current problems, not surprisingly, become the manner in which she is identified by you and
your firm. Your hasty request to the firm's law clerk to "Pull 'y' "that is, to retrieve the file of factual and legal notes describing Ms.
y's particular predicaments, proves metonymic as does your perception that her case involves the areas of constitutional law, domestic
26
relations law, and personal injury law.
Lest the reader think that legal metonymy in a practical context is
necessarily the more easily deconstructed, I return to a discussion of
classical formalism, the legal thought construct most susceptible
and deferential to metonymic manipulation. Of course, simple nomenclature figures prominently in this formalism. The opinion in
Regina v. Dudley and Stephens27 invites the simplest kind of deconstruction of formalist metonymies. The court's decision, steeped in
traditional rhetoric, and a product of the Queen's Bench, 28 analyzed
whether two men stranded at sea were justified in killing the cabin
boy in order to prevent their own starvation. 29 The court's analysis
in Dudey and Stephens evaluated the absence of provocation and the
validity of private necessity, and probed the propriety of punishing
the defendants for their actions.8 0 Framing the problem as one of
whether the necessity for foodjustified killing another human being,
the court convicted and sentenced the defendants to death on the
grounds that the victim had not provoked the defendants' violent
26. Characterizing a case as a mere metonymy of a person does not preclude the opposite from happening. Do we really know anything about Mrs. Palsgraf, Mr. Miranda, or the Six
Unknown Named Agents?
27. 14 QB.D. 273 (1884).
28. The term "Queen's Bench" is a curious metonymy for a source of English common
law.
29. Regina v. Dudley and Stephens, 14 O.B.D. 273, 281 (1884).
SO. Id. at 282-88.
1222
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 34:1215
actions.3 1 The court's rationale unexpectedly departed from its previous characterization of the issue. More importantly, however, a
fundamental contradiction in legal reasoning manifested itself in the
postscript to the opinion, where the defendants' death sentence was
commuted by the "Grown" to six months of imprisonment.3 2 The
commutation effectively nullified the court's great efforts to arrive at
a decision by extracting the most prominent issue of whether necessity justifies killing and balancing factors such as provocation and
the effects of punishment. Furthermore, this commutation not only
legitimated itself through the intervention of the Grown; it also of-
fered no reasoned argument in support of a lessened sentence. The
use of metonymy in this case signifies more than the notion that one
does not and cannot argue with the Grown. Rather, the outcome of
the case suggests that there exists a hierarchy of metonymies within
the law that does not necessarily prioritize legal reasoning over
common sense. 33 This hierarchy tends to prioritize whichever legitimating device is most reductive and most convenient in disposing
of an issue. The will of authority, like the emperor of storybook
fame, is often bold enough to stand bare of principled legitimation.
V.
CHARACTERIZATION AND CHoICE-oF-LAW: THE GREAT
METONYMIC ESCAPE
Conflict of law principles best exemplify the manipulative potential of categorization and of other metonymies whose effects are
classificatory.3 4 Within the area of conflicts of law lies choice-oflaw. 35 When applied to a situation in which the laws of more than
one jurisdiction could conceivably be appropriate, choice-of-law
rules assist courts in determining which jurisdiction's law to use.3 6
The set of choice-of-law rules that are regarded as "traditional"
prescribes that, in a tort case, a court should apply the law of the
jurisdiction where the tort occurred;3 7 in a contract case, the law of
31. Id. at 288.
32. Id. at 288 n.2.
83. It is no secret that lawyers have delighted in confusing and excluding through their
oft-elusive method of legal reasoning. Elizabeth Mensch traces this claim of the superiority of
legal reasoning as far back as Sir Edward Coke's encounter with KingJames I, in which Sir
Coke attributed superior natural reason to the King and other men besides judges, but artificial legal reason, "an art which requires long study and experience," to lawyers alone.
Mensch, The History of Maibtream Legal Thought, in THE PoLrMcs OF LAW, 18, 38 n.8 (D. Kairys
ed. 1982) (quoting 77 Eng. Rep. 1842, 1343 (1608)).
84. My thanks toJohn P. Servis, Washington College of Law class of 1985, for suggesting
characterization's metonymic qualities.
35. A. EHRENZWEIG, CoNFLicr OF LAws 1 (1962).
36. E. ScoLEs & P. HAY, CONFLIcr oFsLAws 5 (1982).
37. RESTATEMENT OF CONFLICr OF LAws § 877 (1934).
METONOMY AS MANIPULATIVE MODE
1985]
1223
thejurisdiction where the contract was executed; 8 and in a property
case, the law of the jurisdiction where the property is located.3 9 As
with all metonymies, the operative element of this approach are arguably custom and the convenience of generalization, rather than
strict logic. 40 The determination that necessarily precedes this application of choice-of-law is the wholly metonymic process called
characterization. This process involves ajudge's substantive classification of a case such as contract, tort, property, family, or other area
of the law.41 In isolating a most prominent issue of a case and classifying the issue substantively, a court may select and apply what it
finds to be the proper law. Not surprisingly, however, a court may
make use of the manipulability of the traditional approach to reach a
desired result-most often, to avoid applying another state's law
that it deems repugnant.
According to proponents of characterization and the traditional
choice-of-law approach, this process of isolating the single issue or
question of a case is a fundamental step in establishing order, predictability, and consistency in the legal process. 42 To its critics, the
characterization process encourages reflexive mechanical choice,
rather than reflective inquiry into reasons why a result is proper. 43
Because this process allows courts to be flexible when applying
choice-of-law rules and, thus, to obtain desired legal results, the
process is often called an "escape device."
38. Id. § 332.
39.
d. §§ 214-54. Seegenerally R. CAmrtoN, D. CURRIE & H. KAY, CoNrucr oF LAws, 97-
101 (1981) (discussing role of characterization in choice-of-law process).
40. One source criticizes the First Restatement's approach to characterization as a "form
of low-level labeling." R. CP1.srroN, D. CuRRIEa & H. KAY, supranote 39, at 97. Another source
views this approach as an intuitive process; accomplished perhaps "by asking what law school
course might have addressed the problem." W. RicHmAN & W. REYNOLDS, UNDERSTANDING
CoNFLrurs OF LAw 114 (1984). This type of characterization, in theory, was to provide rigidity
and uniformity; instead, it allowed for manipulation by both judges and lawyers as how to
characterize the problem. Id. This type of characterization plays a less prominent role in
modem theories.
The Second Restatement adopted "the most significant relationship approach." itL at 158.
Significance is determined by evaluating a number of general considerations relevant to the
issue in the case. Id. The result is less emphasis on characterization as well as less certainty
and predictability of decisions. Id. at 160. The main advantage of the Second Restatements
approach and other modem approaches is its emphasis on the policy issues behind the law.
Id. at 114.
41. As these categories are themselves artificial, often there are several possible substantive characterizations of a case. Cutts v. Najdrowski, 123 N.J. Eq. 481, 198 A. 885 (1938)
(exemplifying multiple characterizations of case). The court posed seven possible categorizations of which each required the application of a different choice-of-law rule to determine
whether the court should apply NewJersey or New York law.
42. See W. Rxcnitm & W. REYNoLmS, supranote 40, at 152 (discussing benefits of administrative ease, predictability and forum neutrality as articulated in First Restatement choice-oflaw system).
45. Id at 114.
44. R. CArrON, D. CURRIE & H. KAY, supra note 39, at 63. Note that my own analysis
1224
THE AMERICAN UNIVERSITY LAW REVIEW [Vol.
34:1215
To illustrate characterization's manipulative potential, I pose the
following hypothetical: 45 I keep an adorable ferret at my Pennsylvania residence, which is next to the Maryland home of "Neighbor." Because Neighbor loathes ferrets, we contract that I shall
keep my ferret out of her yard if she limits her tuba-playing to the
indoors. We agree further that recovery for inconvenience or injury
that may result from a breach of this contract is limited to five hundred dollars. While the contract is in effect, my ferret escapes, runs
to Neighbor's yard, and bites Neighbor who then decides to sue me
in Maryland.
According to Pennsylvania law in this hypothetical, parties may
set dollar limits on their liability for personal injuries, including injuries caused by animal bites. This law, which assumes ferrets to be
innocuous, precludes recovery for alleged ferret bites, although it
enforces a twenty dollar nuisance violation. The hypothetical Maryland law, however, does not honor contract clauses limiting a pet
owner's contractual liability to a specific dollar amount.
Traditional choice-of-law principles provide that, in a contract
case involving parties from more than one state, the court should
apply the law of the state in which the contract was made. In this
hypothetical, the court should then apply the law of Pennsylvania. 46
A characterization of Neighbor's case as one of contract would
therefore, preclude her from any recovery under Pennsylvania law.
includes the synecdochal use of "courts" for 'Judges." How is it that "courts" are more easily
held accountable than 'judges?"
Other recognized judicial "escape devices" are renvoi, substance or procedure, public policy, penal laws and tax claims. Like characterization, each of these involves metonymy to a
certain extent, although the metonymic qualities in characterization seems the purest and
most obvious. In renvoi, the court applies choice-of-law rules of the foreign state which refer
the forum court back to its own law. See Comment, Renvoi and the Modern Approaches to Choiceof-Law, 30 AM. U.L. REv. 1049 (1981). Substance or procedure resembles characterization on
another level. Here, the forum court uses its own choice-of-law rule to determine whether a
given question is one of substance or procedure. RESTATEMENT (FIRST) OF CONFLICT OF LAWS
§ 584 (1934). Application ofrules contingent upon this determination allows courts to decide
which law applies and, hence, which result will occur.
Public policy enables a court to do some side stepping of foreign law when it offends the
public policy of the forum state. See Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 39-42,
172 N.E.2d 526,527-29, 211 N.Y.S.2d 133, 135-37 (1961) (rejecting limitations on recoveries
in wrongful death actions as contrary to New York public policy); see also RESTATEMENT (SECOND) OF CoNFLICT OF LAws § 90 (1971) (stating that no foreign cause ofaction will be entertained if enforcement is contrary to public policy of forum).
45. My hypothetical is very loosely based on Levy v. Daniels' U-Drive Auto Renting Co.,
108 Conn. 333, 143 A. 163, 163-64 (1928) (presenting state conflict of law issue based on
contract).
46. See RESTATEMENT (FIRST) OF CONFLICT OF LAws § 332 (1934) (discussing law gov-
erning validity of contracts); Beale, What Law Governs the Validity of a Contract, 23 HARv. L. REv.
260, 270-71 (1910) (stating that law of place where contract made governs nature and validity
of contract). Contra RESTATEMENT (SECOND) OF CONFLICT OF LAws § 187 (1971) (stating general principle that issues in contract are determined by parties' choice-of-law); id. § 188 (listing factors to consider for choice-of-law in absence of express choice by parties).
19851
METONOMY AS MANIPULATIVE MODE
1225
A tort characterization, however, would bring a very different result because the traditional choice-of-law principles prescribe the
application of the law where the injury occurred 4 7 In this hypothetical, the court should thus apply the law of Maryland. The Maryland
court's use of a tort characterization and subsequent application of
its own law would favor Neighbor because the five hundred dollar
limit clause would be void, and recovery unlimited. A Maryland
judge's characterization of this case as sounding in tort or in contract can literally and respectively "make or break" Neighbor. A
clever and manipulative Maryland judge who is dedicated to the interests of her fellow citizens and who anticipates the result could
characterize this case as sounding in tort in order to "ferret out" the
furtherance of those interests.
The process of characterization within conflict of laws has proven
to be basically sound.48 Its susceptibility to manipulation, however,
has rendered it subject to scholarly comment and criticism, which
argues that characterization's intended function is that of classification. 49 It is a metonymic kind of classification, however, in which
the most prominent part of the case is perceived to be its tortlike or
the contractlike classifications.
Whether or not a judge, lawyer, or legal theorist actually perceives these classifications as such-obviously a subjective matterthe designations prove to be a handy and cogent argumentative
tool. Not only does legal classification reduce an entire set of facts
and problems to a single question, but it also disposes of all other
elements in a seemingly authoritative manner. The ultimate effect
of this process is to defer the points of contention within the problem, so that part of the problem becomes the very premise in resolving its other parts. It is little wonder that characterization is often
criticized as a "result-selective device." 50
47. RESTATEMENT (FIRST) OF CONFLICT OF LAWS § 377 (1934); cf.Rheinstein, The Place of
Wrong: A Study in the Method of Case Law, 19 TuL. L. Rxv. 4 (1944) (noting difficulty of identifying place of injury in some circumstances).
48. W. RICHMAN & W. REYNOLDS, supra note 40, at 154 (noting that recent survey of
choice-of-law decisions showed between sixteen and twenty-two jurisdictions continue to use
traditional method).
49. See, e.g., R. LEmAR, AMERICAN CONFLCrs Or LAw § 88 (3d ed. 1977) (arguing characterization as legal process should function in restrictive and classificatory manner only);
Morse, Characterization:Shadow or Substance, 49 COLUM. L. REv. 1027 (1949) (concluding that
selective principles function powerfully in choice-of-law disputes). Leflar posits that "the process of characterization must be gone through in every case of every kind that comes before
any court or any lawyer forjudgment or opinion. The process is only a little more obvious in
cases having interstate or extrastate aspects." R. LEFLAR, supra § 87. Some jurisdictions have
replaced the traditional approach with more modem interest based approaches. See W. RICHMAN & W. REYNOLDS, supra note 42, at 155-211 (examining dominant conflicts of law theories
during past twenty-five years).
50. R. LEFLAR, supra note 49, § 88.
1226
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 34:1215
How are we to distinguish the metonymies discussed thus far?
Purposively? Effectively? The most important consideration to this
analysis is the extent to which each use is authorized. Both legal and
nonlegal uses, insofar as they are produced by human beings and
through human discourse, reflect a human perceptive tendency. 5 1
The metonymy of epithets and everyday discourse, of course, enjoys
a far richer history developed in literature and in speech; it is the
more conventional and less conscious use.
Gender-based metonymies transform thoughts such as "Look at
the blond-haired woman" and "I'll show her who's the stronger and
more authoritative person" into the respective "Check out the
blonde" and "I'll show her who wears the pants." As a consequence
of these transformations, the associative qualities of the latter
phrases disappear, leaving what seem to be simple declaratives. To
this extent, their basis in convention is apparent. Furthermore, it is
in this transformation that the most imminent threat of oppression
and constriction by these everyday uses of metonymies is present.
When an association of one thing with its function or with another
of its qualities comes to disguise itself as an essence, it falls easy
prey both to political manipulators and to well-intentioned speakers
who unthinkingly perpetuate this mode.
Further, the everyday use of metonymy is best characterized as
descriptive, regardless of any manipulative purposes that the
speaker wishes to effect. This descriptive nature withstands the notion that all metonymies, arguably any use of language, ultimately
distort the message that the speaker intended. Legal metonymies
are most often used to persuade and legitimate. A random sampling of literate individuals would not show a tendency toward this
mode in everyday discourse because legal metonymy has its base in
a particular and local kind of rationality. (I think they call it "legal
reasoningl") 52 Readers of legal opinions know this is a conscious
and synthetic process involving the naming of parties, identifying
the issues, disposing of nonissues, and recognizing facts and circumstances that are especially significant in arriving at a result. In litigation, metonymies clash with and are bolstered by alternative
metonymies. Lawyers, judges, law professors, and law students include in their writings strings of metonymies that draw attention to
51. Russian formalists would explain that the use of metonymy lies within the "ordinary
language mode." See T. HAwxEs, supra note 7, at 62 (discussing Russian formalist theory).
52. It recently occurred to me that "they" enjoys a most tumultuous and quizzical metonymic relationship with its hazy referent, whatever it might be, eg., "They are out to get me."
"They" is necessarily metonymic, unless it refers to the whole of universal existencel
1985]
METONOMY AS MANIPULATIVE MODE
1227
and support their own metonymies. 53
Viewed from a purposive perspective, legal metonymy is ultimately prescriptive. In classifying a germinative 5 4 case and fashioning an opinion, a judge must at some point consider policy and the
potential effect of her decision on case law. An appellate decision
reversing a lower court's characterization of a case necessarily
adopts an outwardly prescriptive task-one in which metonymy replaces metonymy:
We are convinced that, from both the standpoint of public policy
and logic, the proper solution of the conflict of laws problem, in
cases similar to the instant action, is to hold that the law of the
domicile ought to be applied in determining any issue of incapacity to sue based upon family relationship.
However, in order to adopt such a conflict of law rule it will be
necessary to overrule at least six prior decisions of this court
If it is ever proper for a court to depart from stare decisis, we
....
can perceive of a morejustifiable situation in which to do
scarcely
5
So.
5
CONCLUSION: BENEDICTUS METONYMUS
Metonymy is a shared human perceptive mode5 6 that can serve to
structure and simplify. This mode pervades thought before language and is authorized by its very use. Metonymy inheres our humor, insult, and everyday dedaratives-areas in which its stultifying
effects can be most easily rejected.
Metonymy in its more sophisticated legal forms,5 7 however,
proves more dangerously subtle and puissant, party because law53. More commonly known as footnotes, like this one.
54. As a female lawyer-to-be, I propose that we replace the word "seminal."
55. Haumschild v. Continental Cas. Co., 7 Wis. 2d 130, 95 N.W.2d 814, 818-20 (1959)
(reversing lower court's decision to apply law of place of injury and holding place of family
domicile determines applicable law). My inclusion of this excerpt is not intended to belabor
choice-of-law, but to allow the philologist-reader an opportunity to savor some tasty, prescriptive language.
56. Shared, with the exception of some aphasics.
57. This analysis should at least recognize a legal area that invites nonadjudicative metonymic structure. Negotiation in a legal context assumes a less adversarial approach to resolutions of problems than litigation. The past decade'has seen exploration of less traditional and
nonadversarial approaches to negotiation that seek to discourage the all or nothing objective
assumed by parties and thus, encourage creative bents toward resolution. See MenkelMeadow, Toward Another flew of Legal Negotiation: The Structure of Problem-Solving, 31 UCLA L.
REv. 754 (1984) (explaining assumptions concerning objection in negotiation and elaborating
framework for problem solving negotiation that responds to limitations of adversarial model).
Menkel-Meadow's study characterizes the more liberal problem-solving approach not as cooperative and compromising, but rather as based on a theory of needs that refuses to ignore
the complexity of legal negotiations. Id at 827. This approach is consistent with the notion
that elevation of a single goal-the metonymic representation of a party's interests-may
render negotiation a nasty experience and lead to the dissatisfaction of both parties.
1228
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1215
yers entwine it in a kind of reasoning and not the knee jerk responses of street metonymy. Whether in the Langdellian case
method, the area of conflicts of law, or the workings of a law firm,
reduction or categorization through the use of metonymy tends to
take on a life of its own. There exists no "pure" mode of thought
that allows us to avoid the problems of reduction or categorization.
Rather, metonymies need to be exposed to a constant and endless
liberation. Our failure to set free these concepts will sustain a world
inhabited by "skirts" and "muscles," and regulated by "contracts."
Categories should not control those who created them. 58
58. This footnote of gratitude to my mentor of jurisprudence, James Boyle, Associate
Professor, Washington College of Law, is necessarily metonymic in that it only partially acknowledges his tremendous contributions to this analysis and to my understanding of legal
reasoning.
1985]
1229
METONOMY AS MANIPULATIVE MODE
APPENDIX
Some Colloquial Metonymic Expressions
and their Metaphoic Counterparts
THE
BRAIN
'6
PRISON
noodle
noggin
cerebrum, cerebellum,
and medulla
marbles
birdcage
the can
bighouse
pen
pea (brain)
wheels
mcton~m
mcton~my
0,.
0
";t 11C
00
4.-rE
0.
Q-
no
00
0
.
0
kick the bucket
TO DIE
mctoanmn
0,3
TO DERIDE,
CRITICIZE
ncion),v i-
to put down
to cut up
to tear apart
to give hell
."
-
DRUNK
trashed
blitzed
bombed
stoned
wasted
16r106w63
. -