Balkinization  

Thursday, June 09, 2005

Block That Metaphor!

Mark Tushnet

From a concurring opinion in Spector v. Norwegian Cruise Line, dealing, as the respondent's name indicates, with cruise ships: "I would give no wider berth, however, to the 'internal affairs' clear statement rule.... That rule, as I understand it, derives from, and is moored to, the broader guide that statutes 'should not be interpreted...'."

Two reasons to avoid such flourishes: The same paragraph concludes: The statute "should not be hemmed in where there is no potential for international discord." Four paragraphs later, there is this: "the plurality cuts the rule loose from its foundation." I suppose one can be "hemmed in" at a berth, though the phrasing is awkward. But one might have hoped that the author would have tried, "cuts the rule loose from its mooring."

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