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Of Foxes, Hedgehogs, and Splitting Babies

kingsolomon 1.jpgLarry Solum takes the interesting continuing cross-blog discussion of foxes and hedgehogs started by Belle Lettre — including this blog’s own entry from Dan Filler — in a new direction by pointing out, politely, that the fox/hedgehog imagery is being used incorrectly. Go read Larry’s explanation, and then be sure to stay around for his delightful integration of the refined definition back into the discussion.

It made me think of other historical or literary images that are misused in modern legal discourse because so many of us are insufficiently familiar with them. I claim absolutely no high ground here — surely I do it myself. But the one that drives me crazy is “splitting the baby.” It may be objectionable as a cliche anyway, but it is even worse when used incorrectly.

In general “split the baby” gets used as a substitute for “split the difference,” “half a loaf,” or, more simply, “compromise.” (Thus explaining its frequent occurrence in legal discussions…) It shows up in that sense in places I otherwise love, like the Wall Street Journal Law Blog and NPR reports by Nina Totenberg.

The phrase originates in the Bible, specifically 1 Kings 3:16-28. Two women come before wise King Solomon, both claiming fervently to be the mother of an infant. Solomon calls for his sword and declares that he will cut the baby in two and give one half to each woman. When the true mother cries out in anguish, Solomon knows which woman should keep the child. If he had actually cut the child in half, of course, he would be remembered as a mad tyrant like Caligula and not the epitome of wise judicial temperament. Yet you might think from some lawyers’ metaphorical uses of the phrase that cutting a baby in half was laudable. One of the oldest literary or historical models of good judging deserves better from us.

Any other nominees?

[Cross-posted at Info/Law]

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    11 Responses

    1. Miriam Cherry says:

      Right on with this post!

      The first few times I heard it I just thought to myself, I think they mean “split the difference”… then thought, sigh, it’s probably just what happens when cliches go bad…

      but didn’t want to be the one, to ah, er, point out that the emperor wasn’t wearing any clothes…

    2. eric says:

      When I was practicing labor law (on the union side), I usually heard the term “split the baby” used as a criticism of an arbitrator’s decision that tried to placate both parties without truly resolving the issue. In that sense, the phrase seemed at least somewhat true to the original — i.e. splitting the baby is an abomination and not a truly wise or just compromise. I don’t recall ever hearing it used in an approbative sense, but perhaps other lawyers do use it that way.

    3. William McGeveran says:

      I should have said in the post that I myself have misused fox and hedgehog, but will now reform thanks to Solum’s intervention.

      Eric, you’re right that sometimes “split the baby” is used semi-properly to mean an unwise compromise — the kind a great judge like King Solomon would avoid. Those references are OK with me. But I think those are swamped by the ones like the two I linked (and Google turned up many more) that are just describing a “split the difference” compromise.

    4. Fraud Guy says:

      IIRC, the tale of the baby is actually a metaphor for Solomon’s accession to the throne. There were many supporters of a rival claimant, but Solomon said that such claims for the true mother(for the “true” king) should allow the baby (Israel) to remain whole rather than to split the baby (kingdom) to contest the false mother’s (Solomon’s) claims.

    5. Fraud Guy: You do recall correctly, though that exegesis is somewhat deeper than most readers need to go. For more, see, e.g., here.

    6. Brian says:

      I always laugh when I hear “pound sand” (“They told me to go pound sand.”) I’d never heard it before I became a lawyer. Lazily, I ask, Does anyone know its origin, and is it being used properly? Or will you all tell me to go pound sand and do my own research? (So I guess I am not officially nominating “pound sand.” But someone else might.)

      PS I recently saw a dictionary of cliches and plan to buy it – a necessary guide for lawyers.

    7. Miriam Cherry says:

      Oooh. Just the idea of a dictionary of cliches has me on the edge of my seat!

    8. A quick Google searchturns up a number of different plausible theories about the origin of “pound sand,” several of which are a bit too vulgar for this family-oriented weblog.

    9. eric says:

      I too never heard “go pound sand” until I started practicing law. I originally imagined it referred to a child having a temper tantrum in a sandbox. It was only later that I heard the fuller R-rated version that William hints of, specifying where the sand should be pounded into. I’ve also heard the variant “go pound salt”, but only in California.

    10. Fraud Guy says:

      William,

      The historical allegory makes me feel, however, that either the legal use of the phrase should include more ominous overtones, or it would better be used in the political sphere. Obviously, the baby ended up split anyway, as the political unity dissolved under the next King.