penumbra


Also found in: Dictionary, Thesaurus, Medical, Encyclopedia, Wikipedia.

Penumbra

The rights guaranteed by implication in a constitution or the implied powers of a rule.

The original and literal meaning of penumbra is "a space of partial illumination between the perfect shadow … on all sides and the full light" (Merriam Webster's Collegiate Dictionary, 10th ed., 1996). The term was created and introduced by astronomer Johannes Kepler in 1604 to describe the shadows that occur during eclipses. However, in legal terms penumbra is most often used as a metaphor describing a doctrine that refers to implied powers of the federal government. The doctrine is best known from the Supreme Court decision of griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), where Justice william o. douglas used it to describe the concept of an individual's constitutional right of privacy.

The history of the legal use of the penumbra metaphor can be traced to a federal decision written by Justice stephen j. field in the 1871 decision of Montgomery v. Bevans, 17 F.Cas. 628 (9th C.C.D. Cal.). (At the time, Field was performing circuit duty while a member of the Supreme Court.) Since the Montgomery decision, the penumbra metaphor has not been used often. In fact, more than half of its original uses can be attributed to just four judges: oliver wendell holmes, jr., learned hand, benjamin n. cardozo, and William O. Douglas.

In an 1873 article on the theory of torts, Justice Holmes used the term penumbra to describe the "gray area where logic and principle falter." In later decisions, Justice Holmes developed the penumbra doctrine as representing the "outer bounds of authority emanating from a law." Justice Holmes usually used the word in an attempt to describe the need to draw Arbitrary lines when forming legislation. For instance, in the decision of Danforth v. Groton Water Co., Holmes referred to constitutional rules as lacking mathematical exactness, stating that they, "[l]ike those of the Common Law, end in a penumbra where the Legislature has a certain freedom in fixing the line, as has been recognized with regard to the police power" (178 Mass. 472, 476–77, 59 N.E. 1033, 1034 [1901]).

Judge Hand expanded the meaning of the word in opinions written between 1915 and 1950 by using it to indicate the vague borders of words or concepts. He used it to emphasize the difficulty in defining and interpreting statutes, contracts, Trademarks, or ideas.

Justice Cardozo's use of the penumbra metaphor in opinions written between 1934 and 1941 was similar to Holmes's application, but Justice Douglas took a different approach. Rather than using it to highlight the difficulty of drawing lines or determining the meaning of words or concepts, he used the term when he wanted to refer to a peripheral area or an indistinct boundary of something specific.

Douglas's most famous use of penumbra is in the Griswold decision. In the Griswold case, appellants Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, a medical professor at Yale Medical School and director of the league's office in New Haven, were convicted for prescribing contraceptive devices and giving contraceptive advice to married persons in violation of a Connecticut statute. They challenged the constitutionality of the statute, which made it unlawful to use any drug or medicinal article for the purpose of preventing conception, on behalf of the married persons with whom they had a professional relationship. The Supreme Court held that the statute was unconstitutional because it was a violation of a person's right to privacy. In his opinion, Douglas stated that the specific guarantees of the Bill of Rights have penumbras "formed by emanations from those guarantees that help give them life and sub-stance," and that the right to privacy exists within this area.

Since Griswold, the penumbra doctrine has primarily been used to represent implied powers that emanate from a specific rule, thus extending the meaning of the rule into its periphery or penumbra.

Further readings

Greely, Henry T. 1989. "A Footnote to 'Penumbra' in Griswold v. Connecticut." Constitutional Commentary 6.

Helscher, David. 1994. "Griswold v. Connecticut and the Unenumerated Right of Privacy." Northern Illinois University Law Review 15.

Henly, Burr. 1987. "'Penumbra': The Roots of a Legal Metaphor." Hastings Constitutional Law Quarterly 15.

McLaughlin, Gerald. 1999. "Creating a Clear and Unequivocal Standard for Letter of Credit Notices: The Penumbra of the UCP." Journal of Banking and Finance Law and Practice 10 (September): 263–64.

Worsham, Julia B.L. 1999. "Privacy Outside of the Penumbra: A Discussion of Hawaii's Right to Privacy." The University of Hawaii Law Review 21 (summer): 273–315.

Cross-references

Judicial Review; Jurisprudence.

penumbra

noun brink, cover, edge, fringe, margin, outskirt, reflection, shade, shadow
Associated concepts: penumbra of a ConstitutionalAmendment
References in periodicals archive ?
MTI) was reported at the Penumbra Underground Mine.
Certain statements made during or in connection with this communication, including, without limitation, those concerning the economic outlook for the coal mining industry, expectations regarding coal prices, production, cash costs and other operating results, growth prospects and the outlook of Continental's operations including the likely commencement of commercial operations of the Penumbra and De Wittekrans, its liquidity and the capital resources and expenditure, contain or comprise certain forward-looking statements regarding Company's development and exploration operations, economic performance and financial condition.
We have not yet had the opportunity to observe this [willow-leaf] pattern, but we see that even Signor Dawes is in the same circumstances: he finds that the solar structure described by Sir John Herschel, that is, composed of a sort of luminous flakes, is what most closely resembles the appearances observed over the course of many years of research, and in regard to the penumbras, he agrees that there are bright parts, like currents that make their way into the nuclei crossing through the penumbra and retaining all the splendor of the photosphere, and not of the penumbra.
He inserted the Penumbra in an artery in the groin and moved it up through her heart and carotid artery into the brain.
During a total eclipse, the Moon darkens gradually as it moves through the penumbra, then more noticeably as it enters the umbra.
The stroke team anticipating urgent thrombolysis may use these perfusion color maps to confirm ischemia and to estimate penumbra volume.
Mr Roberts said: "The Penumbra project takes a groundbreaking approach by using a `super-tutor', who takes responsibility for design, recruitment and delivery for the whole course.
It is extremely important to distinguish the penumbra from the ischemic core in focal cerebral ischemia, because the penumbra contains viable tissue, which can be salvaged by appropriate treatment (Liu et al.
These properties, which lie in the penumbra of Rockefeller Center and at the edge of the Jewelry District, offer the opportunity to extend the upscale cachet of the neighborhood onto the southern side of 48th Street," said Woody Heller, Executive Managing Director and head of Studley's Capital Transactions Group.
Long, thin filaments radiate from the umbra into a brighter surrounding region called the penumbra.
Sitting in her office above the Brooklyn Academy of Music (BAM) Harvey Theater last spring, Knighton, whose previous job was managing director of the Twin Cities's Penumbra Theater Company, exuded an aura of calm, friendly authority.