Tropes of Anxiety and Desire: Metaphor and Metonymy in the Law of Takings

Abstract

In this Article, I consider the linguistic tropes the Supreme Court has used in certain opinions concerning the law of takings. The trope of metaphor, I claim, is utilized in Pennsylvania Coal Co. v. Mahon, the case that established that land-use regulation could be a taking, while the trope of metonymy governs Lucas v. South Carolina Coastal Council, the case that established that a regulation that extinguishes the market value of land is a taking. Each is an opinion about whether a regulation that takes value from land can be said to represent seizure of the land itself. Since the land itself is not seized, treating the two events as though they were the same is a decision that there is sufficient correspondence between seizure and regulation to educe the same juristic response: a decision in fact that one figures, or represents, the other. Thus, each opinion is concerned with the aptness of a trope, or representation, and its outcome is based upon trope. In Part I, I give an account of Lucas in which I claim that the opinion relies upon metonymy, the trope of association. Linguistic analysis of legal texts requires some justification, and I attempt to provide that in Part II. Also in Part II, I suggest a psycholinguistic understanding of metaphor and metonymy. The opinion's two metonymies are the identification of land with its money value and the identification of public interest with private rights. In Parts III and IV, I give an account of these tropes of value and of right. In Part III, I examine the discourse of Justice Holmes, the author of the Mahon opinion, with respect to profitability, and, in that light, discuss Lucas' reduction of land to its profitability. In Part IV, I examine the opinion's displacement of public interest with private right and argue that this displacement is a result of the opinion's anxiety as to the power of the state. In Part V, I argue that anxiety and desire are at the heart of the opinion. I conclude that the stability Lucas seeks in its account of property in land is illusory and unattainable.