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ple of a simile appears in a concurring opinion by Justice Robert H. Jackson, whose
name almost always appears on lists of the
Court’s all time best writers. In Edwards v.
California, the Court reversed a man’s conviction for transporting his brother-in-law,
who was indigent, to California in violation
of state law. Justice Jackson concurred,
reasoning that because the indigent man
was obligated, as a citizen, to defend the
United States, he had a concomitant right
to migrate wherever he wished in this country. Jackson then added,
Making It Sing
Word Choice
Word choice is another feature of classical rhetoric that can enhance the power of
legal documents. Teachers of classical rhetoric taught their students to maximize the
persuasive effect of words by presenting
items and actions in groups of three. This
device is known as “tricolon.” Julius Caesar must have been paying attention because he was careful to summarize his military campaign in Gaul by stating: “I came,
I saw, I conquered.”19 Other noteworthy
examples are the New Testament’s reference to “faith, hope, and love”; the promise of “liberty, equality, and fraternity” in
the French Constitution; and the aspirations of “peace, order, and good government” in the Canadian Constitution.20 The
most famous American example of tricolon is probably the Declaration of Independence’s reference to “life, liberty, and the
pursuit of happiness,” to which goals the
drafters, in another bow to classical rhetoric, pledged “our lives, our fortunes, and
our sacred honor.”21 The latter phrase is especially rhythmic, hence easy to remember,
because it not only identifies three separate concepts, but also proceeds from a
one-syllable word (lives) to a two-syllable
word (fortunes), to two words with two syllables each (sacred honor).22
Other examples of word choice derived
from classical rhetoric are similes and metaphors. Despite being rhetorical cousins,
they differ in that similes make explicit comparisons, whereas metaphors make implicit
comparisons.23 Moreover, even when a simile makes a figurative comparison between
two things that are not literally alike (e.g., a
sprinter leaving the starting blocks and the
proverbial “bat out of hell”), it uses an explicit word of comparison, usually “like.”24
I am reminded of funny similes I have
heard. A South Dakota farmer once told me
that during hard times, one has to “hunker
down like a jackrabbit in a hailstorm.” Years
later, another man educated me to a wonderful West Virginia simile, which describes
a politician who is “as slick as goose poop
on a hoe handle.” Somehow, I doubt Aristotle ever heard either of those.
Similes can work as well in legal writing as they do in conversations over the
back fence. For example, in Jesperson v.
Harrah’s, the plaintiff employee sued her
former employer, a casino, after she was
terminated for refusing to wear makeup on
the job, contrary to the employer’s grooming code. An amicus curiae brief for the
employer defended the grooming rules,
arguing that standards were necessary lest
the employer have “employees who sport
jewelry like Mr. T., wear makeup like Gene
Simmons of Kiss, dress like Dennis Rodman, have hair like Fabio or [have] beards
like a member of ZZ Top.”25
A more restrained, but still vivid exam-
Unless this Court is willing to say that
citizenship of the United States means
at least this much to the citizen, then
our heritage of constitutional privileges and immunities is only a promise to
the ear to be broken to the hope, a
teasing illusion like a munificent bequest in a pauper’s will.26
Metaphors are more versatile and variable than similes because they can take
different grammatical forms; they can be
complete sentences or even complete
paragraphs, yet they can also be phrases,
clauses, or individual words.27 Writers can
use metaphors to express logos, pathos, or
ethos.28 Metaphors serve the logos function by providing readers with symbolic
analogies that can magnify, hence clarify,
a writer’s substantive point.29 They serve
the pathos function, too, either by invoking
an emotional reaction the writer sought or
simply by being pleasing to the ear, thereby heightening the reader’s interest and attention.30 They even serve the ethos function by elevating the reader’s estimation of
the writer’s intelligence and credibility.31
Justices Jackson and Holmes were the
grandmasters of metaphor among Supreme Court justices. Many of Jackson’s
metaphors startle at first, but then enlighten as the reader acclimates to the appearance of evocative words in unfamili