Academic Legal Writing - Eugene Volokh [70]
You might think that such objections are pedantic: After all, you're using the modern meaning, not the original one. But when a writer chooses to express the modern meaning using a literary or historical allusion, he brings the literary or historical origin to the minds of those readers who know the origin. And if that original meaning distracts the reader from the actual meaning that the writer wanted to evoke, that's the writer's fault.
3. Misusing the figurative phrase
Figurative usages are often misused, because people don't think about (or don't understand) the literal meaning. “Back to ground zero,” for instance, is often used instead of “back to square one.” “Ground zero” is the location where a bomb is detonated, not the first step of a long task. But the similarity of “ground zero” and “square one,” coupled with writers' lack of attention to the terms' literal meanings, makes it easy to confuse the two.
Likewise, “free rein,” “toe the line,” and “tough row to hoe” are often miswritten as “free reign,” “tow the line,” and “tough road to hoe.” Even writers who would rarely misspell a literally used word may fall into these traps for figurative phrases, because the phrases' literal origins—which provide an important clue about their spelling—are often forgotten.
4. Being tempted into using a figurative phrase that isn't exactly right
Finally, writers are often tempted into using figurative phrases even when the phrase isn't quite right for the occasion. Thus, “raises the question” often becomes “begs the question”; “begs the question” traditionally refers to the fallacy of assuming the very point that you're trying to prove, but because the phrase seems so colorful, many people use it in a broader, and incorrect, sense. Likewise, a person's changing his behavior, even incrementally, becomes “the leopard changing its spots,” even though the latter phrase generally refers not to all changes but specifically to radical ones.
So if you think some figurative phrase can make a point more vivid, use it, but only after considering both (1) whether the phrase really adds something, and (2) whether the literal meaning of the phrase might weaken your point more than the figurative enhances it. And always second-guess yourself whenever you use a figurative term unintentionally; many such uses prove to be unhelpful.
Finally, never, ever use the word “literally” when you mean “figuratively,” as in “[T]he number of lawyers in the United States has literally exploded over the last 53 years.” Literally exploded?
Q. Cultural Allusions (High Culture or Pop Culture)
Allusions to pop songs, great literature, classical mythology, or other works pose some of the same risks as metaphors. They seem appealing, because they promise to make the work more lively, erudite, or amusing. But they often come across as forced and distracting. Sometimes they're counterproductive because they're not precisely on point, but the author was blinded to this by his joy in making a little joke. They're often cliché. And sometimes they are obscure enough that they may confuse or alienate readers, or else require an explanation that further distracts the reader with irrelevancies.
Some allusions are good, because they vividly—and often humorously—capture your point. You just need to look suspiciously at every allusion you use, to make sure you're using it for the right reason.
Alex Long's [Insert Song Lyrics Here]: The Uses and Misuses of Popular Music Lyrics in Legal Writing illustrates this well:
Take ... the following passage from an unpublished federal opinion:
The Beatles once sang about the long and winding road. This 1992 case has definitely walked down it, but at the end of the day, the plaintiffs and their counsel were singing the Pink Floyd anthem “Another Brick in the Wall” after consistently banging their collective heads against