Law as Palimpsest: Conceptualizing Contingency in Judicial Opinions

TitleLaw as Palimpsest: Conceptualizing Contingency in Judicial Opinions
Publication TypeUnpublished
AuthorsAsbury, BD

The act of interpretation is an essential component of legal analysis. For decades, legal scholars have called upon metaphors of interpretation to shape conceptualizations of legal problems. But our lexicon of legal metaphors is incomplete. No metaphor in current use successfully captures the contingency of judicial opinions so as to temper the overwrought anxieties attendant to controversial opinions. 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. Writers have been drawn to the palimpsest as a metaphor since at least the 19th Century. In recent years, scholars have applied the palimpsest metaphor to an array of diverse academic fields within the natural sciences, social sciences and humanities. But no scholar has applied the palimpsest to the law. This Article argues that by framing judicial opinions as part of a shared, national palimpsest, commentators can underscore the interconnectedness among opinions and highlight the complexity of the relationship between opinions and precedent. 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 serving as points of reference. A palimpsestic approach to understanding judicial decisionmaking also helps to explain why even the oldest, most reviled cases remain part of our national psyche - like underlayers of a palimpsest, they can never truly disappear, and their continued presence forces us to grapple with them. Finally, considering judicial opinions as part of a national palimpsest reminds us that even the most troubling opinion is ultimately contingent, its application subject to reexamination 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.