Lives in the Law (The Amherst Series in Law, Jurisprudence, and Social Thought)

Lives in the Law Austin Sarat, Lawrence Douglas, and Martha Umphrey, Editors http://www.press.umich.edu/titleDetailDesc...

Author: Austin Sarat | Lawrence Douglas | Martha Umphrey (eds)

30 downloads 1102 Views 1008KB Size Report

This content was uploaded by our users and we assume good faith they have the permission to share this book. If you own the copyright to this book and it is wrongfully on our website, we offer a simple DMCA procedure to remove your content from our site. Start by pressing the button below!
Report copyright / DMCA form

DOWNLOAD PDF

Lives in the Law Austin Sarat, Lawrence Douglas, and Martha Umphrey, Editors http://www.press.umich.edu/titleDetailDesc.do?id=23007 The University of Michigan Press, 2002

Lives in the Law


4HE!MHERST3ERIESIN,AW *URISPRUDENCE AND3OCIAL4HOUGHT %ACHWORKINCLUDEDIN4HE!MHERST3ERIESIN,AW *URISPRUDENCE AND3OCIAL4HOUGHTEXPLORESATHEMECRUCIALTOANUNDERSTANDINGOF LAWASITCONFRONTSTHECHANGINGSOCIALANDINTELLECTUALCURRENTSOFTHE TWENTY lRSTCENTURY

7ORKSEDITEDBY!USTIN3ARATAND4HOMAS2+EARNS 4HE&ATEOF,AW ,AWS6IOLENCE ,AWIN%VERYDAY,IFE 4HE2HETORICOF,AW )DENTITIES 0OLITICS AND2IGHTS ,EGAL2IGHTS(ISTORICALAND0HILOSOPHICAL0ERSPECTIVES *USTICEAND)NJUSTICEIN,AWAND,EGAL4HEORY ,AWINTHE$OMAINSOF#ULTURE #ULTURAL0LURALISM )DENTITY0OLITICS ANDTHE,AW (ISTORY -EMORY ANDTHE,AW (UMAN2IGHTS#ONCEPTS #ONTESTS #ONTINGENCIES 7ORKSEDITEDBY!USTIN3ARAT ,AWERENCE$OUGLAS AND-ARTHA-ERRILL5MPHREY ,IVESINTHE,AW ,AWS-ADNESS 4HE0LACEOF,AW


Lives in the Law edited by Austin Sarat Lawrence Douglas and Martha Merrill Umphrey

Ann Arbor


First paperback edition 2006 Copyright © by the University of Michigan 2002 All rights reserved Published in the United States of America by The University of Michigan Press Manufactured in the United States of America c Printed on acid-free paper 2009

2008

2007

2006

5

4

3

2

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, or otherwise, without the written permission of the publisher. A CIP catalog record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Lives in the law / edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey. p. cm. — (The Amherst series in law, jurisprudence, and social thought) Includes bibliographical references and index. isbn 0-472-11253-8 (cloth : acid-free paper) 1. Sociological jurisprudence. 2. Law—Social aspects—United States. I. Douglas, Lawrence. II. Sarat, Austin. III. Umphrey, Martha Merrill. IV. Series. k376 .l58 2002 340'.115—dc21 2001007078 isbn 0-472-03161-9 (pbk. : alk. paper) ISBN-13

978-0-472-03161-0


Acknowledgments

We are grateful to our colleagues David Delaney, Nasser Hussain, and Thomas R. Kearns for helping us think about what it means to live in the law and for their help in shaping the ideas that inform this book. We thank our students in Amherst College’s Department of Law, Jurisprudence and Social Thought for their interest in the issues addressed in Lives in the Law. Finally, we would like to express special appreciation to the Keck Foundation and to the Amherst College Faculty Lecture Committee for their generous financial support.



Contents

Theoretical Perspectives on Lives in the Law: An Introduction Lawrence Douglas, Austin Sarat, and Martha Merrill Umphrey

1

The Chicago Conspiracy Trial as a Jewish Morality Tale Pnina Lahav

21

Law and Everyday Death: Infanticide and the Backlash against Woman’s Rights after the Civil War Sarah Barringer Gordon

55

Dependency by Law: Welfare and Identity in the Lives of Poor Women Frank Munger

83

Labor’s Subjects Vicki Schultz

123

France and Trials for Crimes against Humanity Annette Wieviorka

215

Contributors

233

Index

235

RT9239_C00.qxd

6/25/04

12:51 PM

Page ii


Theoretical Perspectives on Lives in the Law: An Introduction Lawrence Douglas, Austin Sarat, and Martha Merrill Umphrey

At the beginning of The Common Law, Oliver Wendell Holmes famously observed, “The life of the law has not been logic; it has been experience.”1 Holmes’s parlance is striking, as it asks us to imagine law not simply as a set of institutional practices, or as a code of impersonal rules, or as a series of doctrinal commitments, but as a living entity—a creature with its own lifeblood. Yet once we move from the level of evocative trope to actual practice, we must recognize that inasmuch as law “lives,” it does so through the practitioners and subjects who provide its pulse.2 The essays collected in the present volume are devoted to studying the persons through whom the law gains its sustenance. Our interest, however, is not in exploring how the experiences of these actors and subjects shape the life of the law. Rather, we are interested in considering the question left unaddressed by Holmes: how the lives of individuals, social groups, and nations are fashioned by their engagement with the legal. Law, we contend, comes alive in and through the lives of persons, groups, and nations. Law takes shape through the process by which it molds biography and identity.3 Similarly, lives are formed and given meaning in and against the law, for law shapes choices, imposes constraints, provides opportunities, and serves both as an overt reference point and as an imaginative/symbolic presence.4 Law, moreover, is present in the way people tell their life stories,


2

Lives in the Law

just as it is shaped by the life stories that find their articulation through a legal vocabulary. In recent years, legal scholars with political sensibilities as divergent as Stephen Carter and Patricia Williams have turned to personal narrative to reveal the private pain created by the need to accommodate a social world forged by the very “successes” of the rights revolution.5 The turn to personal narrative among legal scholars has also found its echo in the courtroom; indeed, one consequence of this trend has been the appearance of the “life story” as a controlling trope of the law.6 Whether it be in the area of victim impact statements in the penalty phase of capital cases,7 or in custody disputes in family cases,8 or even in matters of federal antitrust law, one finds ever-increasing attention to the life story in law.9 Yet law’s presence in, and relevance to, the lives of individuals, groups, and nations is found not just in the stories told in legal venues. It is also to be found in the daily experiences and self-understandings never formally given legal articulation. If at times law is fully and forcefully present, at others, its attendance is elusive and shadowy. For some, then, law’s presence is deep and continuous; for others, the law may appear, if at all, only in discrete episodes and events.10 Among prisoners,11 police officers,12 welfare recipients,13 the law is recognizably “all over”; it is harder, however, to detect its influence among college students, gardeners, or middle-class housewives. Yet even when elusive, the law contributes to the self-understanding and self-fashioning of individuals, groups, and nations. Writing about the Americans with Disabilities Act, David Engel and Frank Munger note, “Individual life stories weave in and out of the fabric of public events and social history. Autobiographical narratives by ordinary people reflect the influence of political change, of cultural transformations—and, at times, of legal innovation.”14 Engel and Munger’s work illustrates the complex and active ways that individuals use and reference law as they make life choices and compose their life stories.15 Another example of how law shapes personal and collective biography is provided by Carol Greenhouse’s analysis of the Supreme Court’s decision in Brown v. Board of Education. “Brown’s discourse was biographical,” Greenhouse writes. “Specifically the Court envisioned equality as the means of African American children becoming themselves, future adults. . . . If Brown defined a canonical life story for children of the civil rights era, it also periodized the timetable of the benefits of civil rights in that generation . . . [defining] an iconic life story for


Theoretical Perspectives

3

a particular generation of African Americans.”16 Greenhouse’s account demonstrates the force of Brown in the lives and life stories of African Americans, reminding us that law sometimes weaves together the lives of individuals, groups, and nations. Brown, she contends, “defined a version of the classic ethnic success story that has been central to the twentieth-century discourses of the nation.”17 While Engel’s, Munger’s, and Greenhouse’s way of thinking about law has relevance in a comparative or even global context, it acquires particular significance in the American scene. Over a century and half ago Tocqueville noted, “Scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question.”18 Or, as Hendrik Hartog argues, “[T]hroughout American history law was inescapably, at times overwhelmingly, present. . .”19 And what was true in the past, is only all the more so today. As one observer puts it, “[T]he United States has become probably the most law-run and lawyer-run country in the history of mankind.”20 On the most basic level, this means that a sizable number of Americans live lives in the law in the most direct sense—they are legal practitioners, working for large firms or small practices, for local or federal government, for the judiciary or the private sector.21 There are over a million lawyers in the United States today, a staggering number when one considers that the national workforce numbers some 110 million. Each year our nation’s law schools produce another fifty thousand lawyers, a number that roughly corresponds to the total number of lawyers presently at work in China. The numbers, while suggestive, do not capture the full reality. While it is commonplace to claim that we live in a “litigious society,”22 the thoroughly legalized nature of American society does more than incline us to bring lawsuits at the drop of a hat.23 Indeed, the litigious quality of our society is simply a characteristic of a deeper phenomenon—we live in a legal culture. If Geertz is correct that culture can be understood as the “webs of significance” that “man as an animal” spins, then the webs in which Americans find themselves suspended are quintessentially legal in nature.24 The codes of law are at once omnipresent and liminal: movies and television are saturated with images and tales of legality; narratives of the law fill the ranks of the best-sellers’ list;25 the language of law finds expression in the small print of warnings and disclaimers that adorn the packaging of our cherished consumer products.26 The culture


4

Lives in the Law

of legality turns the law into a tool of the miraculous and an expression of a craving for perfect justice.27 To suffer a bodily injury is no longer seen as a misfortune: inasmuch as it can support a tort claim, it is an injustice demanding redress. On the other hand, a jury that returns an unpopular verdict can unleash an outpouring of community outrage that spills over into violence.28 In a postexistential world, the law serves as our means of secular salvation. We expect, if not divine justice, then at least its human variety.29 While the political lives of many Americans are paltry,30 it might be said that we all live lives in the law. Many of our contacts with the world of law might seem relatively unobtrusive, yet even these are telling: upon birth, we are given a legal identity in the form of a Social Security number. The act of purchasing alcohol or cigarettes requires that we demonstrate a legal fitness to buy. The use of a credit card tethers us to a nexus of contractual relations. What, then, does all this mean? Given the fact that we live in a legal culture, it may at times be difficult to separate the experiences of the practitioner of law from those of the legal subject. The practitioner, having received notification of an income tax audit, will at times find himself acting as a legal subject, while the subject, threatening to sue his neighbor, will at times act as a practitioner of sorts. Yet even if the terms of our existence within a culture of law means that the distinction between practitioner and subject often blurs, most legal scholars view differently those who dwell in the law professionally from those who periodically seek out, or find themselves drawn into, law’s ambit. In the nineteenth century, and well into the early twentieth, it was commonplace to eulogize a renowned practitioner with the phrase, “He lived greatly in the law.” The locution suggests more than the mere notion of inhabiting a physical space—it powerfully conjures what perhaps could be called an “ontology of law”: the idea that legal practice constitutes a form of being, offering special opportunities for ethical flourishing. Today, the act of conjoining legal practice with the notion of “living greatly” calls forth an altogether different set of associations, conjuring a life spent on manicured golf greens and tastefully renovated condos. Originally, however, the idea of living in the law was defended not in terms of its material rewards, but in terms of its benefits to character and community.31 If such an idea sounds vaguely quaint, it finds a robust contemporary defense in the work of Anthony Kronman. In The Lost Lawyer: Fail-



5

ing Ideals of the Legal Profession, Kronman offers a passionate defense of the ideal of the “lawyer-statesman.”32 The concept of the “statesman” finds its earliest and most influential elaboration in the work of Aristotle, who famously argued that the realm of the political represented freedom from the terrain of the private, the prepolitical arena of the household devoted to the satisfaction of our most basic, animalistic needs. Inasmuch as the realm of the political offers us the opportunity to participate in the life of the polis through deliberative acts, it makes possible those gestures of self-rule critical to the fulfillment of our nature as social beings.33 The political, then, offers unique opportunities for ethical flourishing. In particular, it creates a laboratory for the cultivation of practical wisdom, “the excellence of the person who deliberates well about personal or political affairs.”34 Practical wisdom, in turn, is conceived as a virtue of character, “a dispositional habit shaped by training and education.”35 The relationship between virtue of character and civic virtue is complexly interdependent: the polis needs the statesman with practical wisdom, at the same time that the political arena creates the very crucible in which this virtue can be most meaningfully cultivated. For Kronman, the insertion of the term lawyer into the statesman formula both extends and importantly repositions the original Aristotelian ideal: The lawyer-statesman ideal points to a connection between the virtue of the statesmanship, on the one hand, and the ordinary circumstances of law practice, on the other, and implies that this basic human excellence has special meaning for lawyers as a group.36 To appreciate how legal practice, at least classically conceived, requires and cultivates the interrelated virtues of civic-mindedness and practical wisdom, it is important to pay closer attention to what Kronman means by “the ordinary circumstances of law practice.” Paraphrasing Karl Llewellyn, Kronman identifies three different “law jobs” at the heart of ordinary practice: judging, counseling, and advocacy. The judge settles legal disputes from an impartial point of view. The counselor, by contrast, occupies a more partial position, helping his clients “identify and control the legal consequences of their actions.”37 The act of counseling brings the lawyer and his client closely together; in its pure form, it does not require contact with third parties.


6

Lives in the Law

As Kronman puts it, “When a lawyer is acting as a counselor, he must of course speak to his client, but need not speak to anyone else on the client’s behalf.”38 The advocate occupies the most partial position, as he represents his client’s interests to a third party, be it a judge, opposing counsel, or administrative agency. All three jobs, Kronman insists, enlist and train the virtue of practical wisdom. Obviously the act of judging provides the least controversial case, as most would agree that the good judge must reason in a civic-minded fashion, balancing qualities of empathy and detachment. Yet the counselor and advocate must likewise exercise practical wisdom, inasmuch as the lawyer’s role is not simply to identify the most suitable means for the client to realize his or her goals, but to deliberate with the client about these goals. To do this, Kronman claims, a lawyer needs to place himself in the client’s position by provisionally accepting his ends and then imaginatively considering the consequences of pursuing them, with the same combination of sympathy and detachment the lawyer would employ if he were deliberating on his own account.39 Because legal practice, at least classically conceived, requires and cultivates the interrelated virtues of civic-mindedness and practical wisdom, the figure of the lawyer-statesman, Kronman concludes, “may be said to embody not merely a generalized conception of political virtue but a distinctive professional ideal.”40 This neo-Aristotelian position41 asks us to imagine a life lived in the law—as judge, counselor, or advocate—in both ontological and ethical terms. Offering the chance to cultivate prudence and to engage in civic deliberation, these careers encourage the development of those excellences that lie at the core of a fully constituted and free human agent.42 Kronman’s argument is, it should be noted, distinctly Burkean: he views the past nostalgically, finding in the late nineteenth and early twentieth centuries a golden age of the ideal of the lawyer-statesman. That this period was also distinguished by odious and elaborate forms of exclusion, in which legal practice, especially in its more statesmanly and privileged domain, was largely the work of men of a specific background and upbringing, Kronman acknowledges; still, he believes the past offers a more pleasing picture of the possibility of a fully realized life in the law than does the present. The instrumentalization of legal



7

education as evidenced in the rise of law and economics, and the replacement of the intimate practice with the gigantic and impersonal firm structured according to principles of corporate organization,43 have, Kronman claims, “led to the degradation of the ideal of the lawyer-statesman.”44 At the heart of the neo-Aristotelian position thus lies a fundamental ambivalence about contemporary law: at the same time that legal practice is freed from the fetters of race, gender, and class to reward the virtues of character in a more meritocratic fashion, the very social organization of law marginalizes the value of these traits. This ambivalence, in turn, generates a tension between the normative and the descriptive: between the belief that a life in the law should provide unique opportunities to become an ethically flourishing human agent, and a recognition that present-day reality leaves these opportunities radically compromised. A very different theory of what it means to live in the law is associated with liberal theory. The Aristotelian-republican position, we have seen, is committed to the belief that visions of the good life are, and should be, defined through acts of public—that is, legal—deliberation. Liberalism, by contrast, has defended the notion that the law should remain largely agnostic with respect to visions of the good, and instead should be dedicated to the articulation and defense of the principles and institutions of social justice.45 Given this position, it is possible to view a life in the law as less dedicated to the realization of the good than to the pursuit of justice.46 The liberal position thus frames a dramatically different understanding of what it means to live a life in the law. Inasmuch as the law must remain agnostic with respect to the good, legal practice is not, liberalism insists, an arena dedicated to deliberating about ultimate ends and purposes. Human goals and purposes exist, the liberal claims, anterior to the deliberative struggles waged in law’s arena, and in this regard, the law functions more as a tool for the furtherance or frustration of ultimate ends, and not as a source of clarification about the wisdom of these ends. Extrapolating from this position, it can be said that a career in the law is not a particularly fruitful terrain for the cultivation of a richly embodied subjectivity or ethical sense. Who we are as a person exists prior to, and independent of, our work as a lawyer. For the liberal, then, the idea of a living in the law is something of a misplaced metaphor—


8

Lives in the Law

for we do not live in the law; rather, life is altogether elsewhere. The law merely provides the means of material sustenance such that we can pursue our private visions of the good elsewhere—in leisure activities, in the synagogue or church, among friends and family. The fact that liberalism separates professional role from personal identity, is, however, more than the mere consequence of the belief that ultimate purposes exist anterior to the arena of law and politics. Inasmuch as liberalism remains dedicated to the concept of social justice, the divorce between professional responsibility and personal belief serves as a critical tool of justice itself. Nowhere is this more apparent than in the liberal ideology of zealous advocacy that buttresses the adversarial system of justice.47 Republican legal theorists have long insisted that the conventional practice of zealous advocacy should be checked by a “public interest” exception. Before advancing an argument on behalf of a client, republicans have argued, a lawyer should pay attention to “history and institutions,” asking whether the larger public interest is served by such partisan advocacy.48 Many liberals have attacked this position, questioning whether lawyers are properly equipped to make such determinations about the public interest.49 More trenchantly, liberals such as Monroe Freedman insist that a public interest limitation on zealous advocacy would erode our system of criminal justice by making it difficult for those accused of the most notorious crimes to secure adequate representation.50 Freedman’s argument builds on the basic tenants of liberalism, for it observes that a system of zealous advocacy is predicated on a separation of the professional and the personal. When we read, for example, that a prominent criminal defense attorney has volunteered to represent Timothy McVeigh or Ted Kaczinski, we do not conclude that the attorney supports the substance of his or her client’s rage against government or technology. On the contrary, the only substantive belief that we might impute to the attorney is the thin notion that he or she believes that every accused is entitled to adequate representation. Building in a public interest limitation on zealous advocacy, however, would dramatically change this equation. With such a limitation, the formal space between professional commitment and personal belief would effectively collapse; suddenly, the willingness of an attorney to represent a particular client could be read as indicative of the attorney’s substantive support of his client’s actions and beliefs.51 This, in turn,



9

could easily result in a state of affairs in which persons accused of politically or socially sensitive crimes would struggle to secure the aid of counsel, as the potential advocate might be loathe to be associated with the accused and his or her alleged conduct. Thus the vigilant preservation of a formal space between professional obligation and personal belief is necessary for the protection of our system of criminal justice. Granted, some of the most interesting recent contributions to liberal legal theory have attempted to bridge the gap between the communitarian and the classical liberal position. David Luban’s theory of the “good lawyer,” for example, attempts to bring together the liberal and neo-Aristotelian position.52 Yet notwithstanding these efforts, the prevailing liberal ideology of practice, as buttressed by the case method of legal education, continues to insist that the lawyer furthers the cause of justice precisely to the degree that he or she lives in the law thinly as a practitioner and not fully as richly constituted being. As we have seen, neo-Aristotelian and liberal theories have competed to offer a normatively compelling account of legal practice. As we shift our focus, however, from the practitioner to the legal subject, we find less theoretical diversity and richness for the simple reason that liberal theory, until recently, has powerfully dominated understandings of the legal subject, and that this theory largely lacks a robust picture of what it means to live a life in the law. This is not to say that classical liberalism lacks a theory of the legal subject altogether. For liberal theory, the legal subject is the possessor of a bundle of inviolate rights. These rights, most liberals would argue, are not created by legal decree. Rather, the law’s responsibility is to recognize and protect these preexisting, foundational rights of persons.53 In this regard, liberalism can be said to have a “thin” conception of personhood in three separate, though interrelated, ways. First, inasmuch as the individual is conceptualized in terms of the rights that attach to him or her, the theory lacks a richly embodied vision of human subjectivity.54 Certainly, the theory is committed to basic notions of the subject’s capacity to reason and to act as a free agent (indeed, liberalism is unintelligible absent these assumptions), but the liberal subject largely remains a being emptied of self. Secondly, insofar as these rights, as a normative matter, exist antecedent to the political and legal process, law is not viewed as an arena for the struggle over the meaning and contours of rights. While the law may provide a


10

Lives in the Law

forum for the fight over the recognition of rights, it is not a crucible for their deliberative fashioning. Thirdly, to the extent that the law must remain agnostic with respect to the good, and instead must devote itself to the articulation and defense of principles and institutions of justice, then our “life in the law” is thin in a final and most crucial sense. As legal subjects, we are intended to experience the law thinly. The law is not there to guide us toward ultimate ends or purposes, as it is for the republican and communitarian; it is meant to secure a basic regime of justice such that each of us can independently pursue his or her own life project. In this regard, we experience the law strongly only when we violate a basic principle of justice, such as, for example, Mills’s canonical harm principle.55 For the liberal, then, the notion of a “life in the law” remains something of an oxymoron. In recent years, however, the liberal position has invited stern critique. Communitarians and civic republicans, for example, have attacked the hegemony of a discourse of rights—the tendency to translate all struggles over human ends and purposes into an abstract vocabulary of principle.56 This discourse, of course, has been responsible for numerous constitutional breakthroughs, particularly during the Warren Court, and specifically in the areas of civil rights law and the articulation of a jurisprudence of privacy. Yet perhaps it was the very power of the liberal discourse of rights to reshape American constitutional understandings that has most contributed to present critiques. Communitarians insist that because all civic questions—such as, for example, whether there is speech that our society should not tolerate—are seen through the filter of abstract rights, we have bartered away the capacity to deliberate collectively and concretely about our deepest values. Law-and-society scholars, by contrast, have critically examined the real-world operation of the rhetoric of rights.57 Against the vision of a citizenry empowered with constitutional armor, these scholars have shown that the rhetoric of rights has done little to empower the most marginalized of our citizens, persons who remain painfully underequipped to deploy the discourse to their advantage.58 These scholars have drawn attention to the gap between law on the books and law in practice, revealing the often dramatic discrepancy between the bold promise of doctrine and the painful shortcomings of reality. Perhaps more importantly, a new generation of sociolegal scholars have emphasized law’s constitutive role in society.59 Strongly influ-



11

enced by the work of Michel Foucault and other theorists of postmodernism, these scholars see law less as an instrument for defending rights and dispensing justice, and more as a force that shapes social relations and constructs codes of behavior. Contending that social life is run through with law, these scholars insist that the relevant category for study is not the external one of causality (as the reference to effects would suggest) but the internal one of meaning.60 In bold outline, the constitutive view suggests that law shapes society from the inside out, by providing the principal categories in terms of which life is made to seem largely natural, normal, cohesive, and coherent. These critiques, in turn, have found strong echoes within the legal academy. Legal feminists, perhaps most prominently Catharine MacKinnon, have, for example, interrogated the liberal vision of a life outside the law. Focusing on the issue of pornography, MacKinnon has insisted that the alleged neutrality of the law has the real-world consequence of allying the law with the life projects of misogynists and pornographers.61 The staying of state power is, she argues, an instance of its exercise. Critical race theorists, writing on the question of racist speech, have similarly interrogated liberal shibboleths of neutrality.62 These theorists have insisted that the failure of the state to offer legal cognizance to the harms occasioned by racist speech must be explained in terms of the law’s refusal to attend to the voice and lives of the marginalized Other. Thus both legal feminists and critical race theorists remind us that a life outside the law—one purportedly free from legal administration and decree is—in fact, a life subordinated to other, perhaps less salutary, forms of social domination. Finally, the influence of Foucault upon the study of organized legality has prompted other scholars to move beyond showing how neutrality rationalizes social inequality, to demonstrate how the very concept of neutrality is predicated on elaborate microtechnologies of power and control. Although liberalism might stay the overt exercises of state coercion, it nevertheless is based upon, the Foucauldian insists, a vast system of governmentality that dictates the terms of, and recuperates the existence of, a disciplined citizenry.63 In this respect, the very notion of a “life outside the law” is merely an expression of the very ideological apparatus that creates rule-governed subjectivity. All lives are necessarily and inevitably lives lived in the law. The essays in this volume expand upon—and imaginatively challenge—these understandings of what it means to live a life in the law.


12

Lives in the Law

They help map the various ways law enters the lives of individuals, groups, and nations, at the same time that they contribute to the more general effort to theorize what a life in the law entails. While they begin in different locations—some obviously inside the law, some seemingly removed from it—together they reveal the manifold ways that law informs lives and life stories. Pnina Lahav’s contribution, a study of the Chicago Seven trial, is the only essay to focus specifically on the classical concern of writers such as Kronman: on the consequences that legal practice has on the lives of its practitioners. But instead of locating in legal practice opportunities for ethical flourishing, Lahav paints a more complex picture, one that attends to the law’s power to serve as a site for the definition of a collective group identity. The leading protagonists of the notorious Chicago Seven trial were, Lahav notes, all Jewish: William Kunstler served as the lead defense attorney; Abbie Hoffman was the most flamboyant and famous of the defendants, and Judge Julius Hoffman presided over the controversial proceeding. This, Lahav argues, was not entirely coincidental as American Jews have long been attracted to careers in the law and to socially progressive politics.64 On one level, one could explain this fact by harking back to the talmudic tradition, the way in which Judaism is organized around the exhaustive interpretation of legal texts. At times, Lahav embraces this argument, insisting that the law provided a secular terrain upon which Jews could cultivate their religious values. More interestingly, however, Lahav argues that American Jews found in the law an arena in which their religiosity could be erased and sublimated. The discourse of liberalism thus provided them with a powerful vocabulary of assimilationism, fulfilling the dream of putting the emphasis on the word American in the designation of their hyphenated identity. Here, then, we find the embrace of legal practice, and the fight for social justice, as part of the larger project of defining group identity through an act of liberal erasure. Sarah Barringer Gordon, by contrast, focuses on the experience not of the legal practitioner, but on the individual legal subject, in this case, the defendant in a notorious nineteenth-century infanticide trial. Her study of the Hester Vaughn trial nevertheless unexpectedly echoes aspects of Lahav’s essay. Like Lahav, Gordon observes how the process of translating Vaughn’s life experience into the discourse of liberal



13

legality had the consequence of erasing the particulars—and difficulties—of her character. Both the trial judge and the liberal suffragists who turned the Vaughn trial into a cause célèbre transformed a concrete life into an abstract principle, ultimately turning Vaughn into an overdetermined signifier, a potent symbol readily enlisted by any legal or political cause. More disturbingly, Gordon locates in legal discourse, especially as deployed by the suffragists, the tendency to salvage womanly innocence through a process of denying agency. It was only by turning Vaughn’s experience into a tale of rape and insanity—a construction that Gordon insists the facts did not support—that the liberal suffragists were able to construct a picture of legal innocence for the gendered legal subject. The vision of the legal subject as an entity lacking meaningful agency is also the critical focus of Frank Munger’s contribution. Like Gordon, Munger is interested in the gendered legal subject: his essay is a subtle examination of how law constructs the identity of women. But unlike Gordon, his focus is not on the individual legal subject, but on women as a social group; and more explicitly than Gordon, Munger tells a story of class: he is interested in examining “how law becomes active in the lives of poor women.” As discussed earlier, one consequence of the rights revolution after World War II was a tendency to describe the lives of poor women in Manichaean terms. On the one hand, liberal advocates saw rights as tools of empowerment, potent weapons with which the poor could extract justice from an indifferent, if not hostile, system. Others, however, saw the discourse of rights as largely a sham, doing little to confer meaningful agency upon an underclass of victims. Between these irreconcilable pictures of the potent agent and the hapless victim, Munger sketches a third alternative. Listening closely to the stories that poor, often black, women tell of their lives, Munger asks us to see these women as occupying a complex middle ground between agent and victim, as he explores the strategies by which poor women resourcefully resist the law’s construction of their dependency. In so doing, Munger reveals how these women live lives in the law in the most complicated sense. On the one hand, we encounter an underclass trapped in cycles of dependency at least partially of the law’s making; on the other, we meet persons who, contra Kronman’s elite narrative of legal practice, have learned resourcefully to negotiate the shoals of


14

Lives in the Law

legal administration to protect their moral identity not through but from the law.65 Like Munger, Vicki Schultz is concerned with the collective identity of women, and she, too, implicitly offers a critique of Kronman’s elite narrative of legal practice. Schultz does not locate in legal practice particularly rich or unique opportunities for ethical flourishing and self-actualization; rather, she passionately insists that all work can, or rather, should, offer these opportunities. Yet she specifically challenges the arguments of feminists who defend the idea of paying mothers for domestic work. Here her work seems to agree with Munger’s study of how regimes of welfare contribute to cycles of dependency and enforced domesticity. Interestingly, however, Schultz’s work straddles the liberal and the communitarian. Like the liberal, she deploys a discourse of rights, arguing that we all “have a right to a life’s work,” and that such work is an anchor of good citizenship. Yet like the communitarian, she does not see work as merely the instrumental means by which the laborer supports his or her corporation or family; rather, she sees work as the process through which the individual constitutes him- or herself through a process of meaningful collaboration within a community. We are, then, less law’s subjects than “labor’s subjects,” constructed in large part by the form of our gainful employment. Building on the pioneering work of Richard Sennet, Schultz suggests that law, as a tool of social order, requires the stability created by a society-wide “commitment to work performed over the course of a life.” In defending her belief that we all have a right to “full and equal participation in decently paid, life-sustaining work,” Schultz endorses a number of “universal structural solutions.” These include imaginative, if not utopian, reforms such as the adoption of a reduced work week, the offering of periodic sabbaticals to all workers, and the creation of a new ethos of appreciation for service jobs. Here Schultz explicitly defends the power of law to effect such change, at the same time that she acknowledges that a remaking of the laws of work will be both a cause and consequence of a radically redefined understanding of how we are constituted by what we do. If the focus of the essays collected in this book has traveled from the individual in Lahav and Gordon, to the collective in Munger and Schultz, Annette Wieviorka offers perhaps the most capacious understanding of what it means to live in the law. In examining the recent



15

trial of Maurice Papon for complicity in crimes against humanity, Wieviorka reveals how the very identity of a nation can be defined through juridical and legal acts. Specifically, she shows that the trial served to reshape a collective understanding of the Vichy period, challenging the vision of Vichy as a mere puppet regime of the Nazis (an image, in part, created by an earlier act of juridical theater, the Touvier trial). Against this prevailing understanding, the Papon trial presented a picture of Vichy as an administrative entity with its own logic and agency (and here we hear echoes, albeit on a national level, of Munger’s study of welfare women). On one level, Wieviorka’s essay brings us full circle, returning us to Lahav’s insight that legal proceedings can serve as shadow trials, acting out dramas rife with liminal legal meaning. (The trial of the Chicago Seven was, Lahav notes, filled with references to the Holocaust and the Eichmann trial.) On another level, Wieviorka’s study of Papon, a leading “lawyer-statesman,” offers the most emphatic challenge to Kronman’s elite theory of legal practice, reminding us that just as law offers opportunities for ethical flourishing, it creates equally powerful opportunities for moral abjection. Yet finally, and most distinctively, Wieviorka’s essay reminds us of the power of the law not simply to define individual and group subjectivity, but to define the very character of a nation, and to dictate the terms of the memories and stories upon which national identity is anchored.66 Taken together, these essays challenge the shibboleths that have informed liberal, neo-Aristotelian, and communitarian notions of what it means to live in the law. These challenges, however, eschew a simple repudiation of the discourse of rights and the tenets of liberal legality. Certainly they demonstrate the power of the law to define the terms of personal, collective, and national identity. But they also remind us of the power of persons, groups, and nations to construct counternarratives, to define a space of accommodation in which we live more creatively in and through the law.

NOTES 1. Oliver Wendell Holmes Jr., The Common Law (Boston: Little, Brown, 1946), 1. 2. John Noonan, Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks (New York: Farrar, Straus and Giroux, 1976).


16

Lives in the Law

3. Austin Sarat and Thomas R. Kearns, eds., Law in Everyday Life (Ann Arbor: University of Michigan Press, 1993). 4. Patricia Ewick and Susan Silbey, The Common Place of Law: Stories from Everyday Life (Chicago: University of Chicago Press, 1998). 5. See Stephen Carter, Reflections of an Affirmative Action Baby (New York: Basic Books, 1994); also, Patricia Williams, The Alchemy of Race and Rights (Cambridge: Harvard University Press, 1991). 6. See Carol Greenhouse, “A Federal Life: Brown and the Nationalization of the Life Story,” in Race, Law, and Culture: Reflections on Brown v. Board of Education, ed. Austin Sarat (New York: Oxford University Press, 1997). 7. Austin Sarat, “Victims, Vengeance, and the Identities of Law,” Social and Legal Studies 2 (1997): 163. 8. See Leonra Lapidus, “Maintaining the Status Quo: Institutional Obstacles in a Child Custody Dispute,” in Law Stories, ed. Gary Bellow and Martha Minow (Ann Arbor: University of Michigan Press, 1996). 9. See, for example, Peter Brooks and Paul Gewirtz, eds., Law’s Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1996); also Bellow and Minow, Law Stories. Indeed, the rise of this trope has contributed to a recentering of legal discourse, away from the formalism of the early twentieth century (which continues to define, in clichéd terms, the standard picture of legal discourse). 10. For an interesting example of the place of law in the life of a single community, see Carol Greenhouse, Praying for Justice: Faith, Order, and Community in an American Town (Ithaca: Cornell University Press, 1986). 11. See Fox Butterfield, All God’s Children: The Bosket Family and the Tradition of American Violence (New York: Knopf, 1995). 12. Jerome Skolnick, Justice without Trial: Law Enforcement in a Democratic Society (New York: John Wiley, 1966). 13. Austin Sarat, “‘The Law Is All Over’: Power, Resistance and the Legal Consciousness of the Welfare Poor,” Yale Journal of Law and the Humanities 2 (1990): 343. 14. David Engel and Frank Munger, “Rights, Remembrance, and the Reconciliation of Difference,” Law and Society Review 30 (1996): 8. 15. Engel and Munger, “Rights, Remembrance,” 14. 16. Greenhouse, “A Federal Life,” 171, 170. Also Jon-Christian Suggs, Whispered Consolations: Law and Narrative in African American Life (Ann Arbor: University of Michigan Press, 2000), chap. 8. 17. Greenhouse, “A Federal Life,” 186. 18. Alexis de Tocqueville, Democracy in America, vol. 1, trans. Henry Reeve (New York: Knopf, 1984), 280. 19. Hendrik Hartog, “Abigail Bailey’s Coverture,” in Law in Everyday Life, ed. Sarat and Kearns, 107. 20. Harold Berman, William Greiner, and Samir Saliba, The Nature and Functions of Law, 5th ed. (Westbury, N.Y.: Foundation Press, 1996), 3. 21. See Michael Kelly, Lives of Lawyers: Journeys in the Organizations of Practice (Ann Arbor: University of Michigan Press, 1994).



17

22. See, for example, Jethro Lieberman, The Litigious Society (New York: Basic Books, 1981); and Lawrence Friedman, Total Justice (New York: Russell Sage, 1985). 23. Many dispute the accuracy of this perception, arguing that it is based on anecdote, “horror story,” and myth rather than a close look at reliable evidence. See, for example, Marc Galanter, “Reading the Landscape of Disputes: What We Know and Don’t Know (and Think We Know) about Our Allegedly Contentious and Litigious Society,” UCLA Law Review 31 (1983): 56. 24. Clifford Geertz, The Interpretation of Cultures (New York: Basic Books, 1973), 5. 25. Richard Sherwin, When Law Goes Pop: The Vanishing Line between Law and Popular Culture (Chicago: University of Chicago Press, 2000). 26. See Susan Silbey and Austin Sarat, “Critical Traditions in Law and Society Research,” Law and Society Review 21 (1987): 165, for a discussion of the importance of attending to such facts about law. 27. Friedman, Total Justice. 28. One example is discussed in Robert Gooding Williams, ed., Reading Rodney King/Reading Urban Uprising (New York: Routledge, 1993). 29. See, for example, Judith Shklar, The Faces of Injustice (New Haven: Yale University Press, 1988), arguing that matters once seen as misfortunes increasingly are viewed as injustices. 30. Periodically we have the chance to vote, which most of us ignore. We may identify with a particular political party, but most Americans will never contribute to a political cause or attend a political meeting or rally. 31. Louis Brandeis, for example, defended the progressive ideal of the “people’s lawyer,” an advocate dedicated to challenging the power of great corporations. See generally David Luban, Lawyers and Justice: An Ethical Study (Princeton: Princeton University Press, 1988). 32. Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge: Harvard University Press, 1993). 33. This championing of the domain of the political is shared by many contemporary communitarians and civic republicans. See, for example, Michael Sandel, Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge: Harvard University Press, 1996). 34. Kronman, The Lost Lawyer, 41. 35. Ibid. 36. Ibid., 109. 37. Ibid., 121. 38. Ibid., 122. 39. Ibid., 130. For a useful discussion of the role that lawyers play in helping to clarify client interests, see William Simon, The Practice of Justice: A Theory of Lawyers’ Ethics (Cambridge: Harvard University Press, 1998). 40. Kronman, The Lost Lawyer, 109. 41. Kronman distinguishes his argument from the position of contemporary civic republicans such as Cass Sunstein and Frank Michelman, who, Kron-


18

Lives in the Law

man argues, seek to separate Aristotle’s discussion of the practical wisdom from the characterlogical argument upon which it originally depended. 42. Kronman’s views have been the subject of much insightful criticism. For a sample, see Tanina Rostain, “Ethics Lost: Limitations of Current Approaches to Legal Regulation,” Southern California Law Review 71 (1998): 1273; William Simon, “Virtuous Lying: A Critique of Quasi-Categorical Moralism,” Georgetown Journal of Legal Ethics 12 (1999): 433; Charles Silver and Frank Cross, “What’s Not to Like about Being a Lawyer? A Life of Counsel and Controversy,” Yale Law Journal 109 (2000): 1443. 43. As Kelly notes, “The lives of lawyers are . . . a form of multilayered narrative, an effort by lawyers to merge satisfactorily their individual life stories with the organization in which they practice” (Lives of Lawyers, 219–20). 44. For a bracing account of the influence of big firms upon the changing nature of legal practice, see Lincoln Caplan, Skadden: Power, Money, and the Rise of a Legal Empire (New York: Farrar, Straus and Giroux, 1993). 45. Certainly the most influential work of contemporary liberalism defending such a position remains John Rawls’s A Theory of Justice (Cambridge: Harvard University Press, 1971). 46. See, for example, Owen Fiss, “Foreword: The Forms of Justice,” Harvard Law Review 93 (1979): 1–58. 47. For a discussion of this ideology see William Simon, “The Ideology of Advocacy: Procedural Justice and Professional Ethics,” Wisconsin Law Review (1978): 30. 48. See Marvin Frankel, “The Search for Justice: An Umpireal View,” University of Pennsylvania Law Review 123 (1975): 1031–59. See also Marvin Frankel, Partisan Justice (New York: Hill and Wang, 1980). 49. Such an objection, it should be noted, fails adequately to challenge the neo-Aristotelian view, as Kronman insists that the inability to deliberate well about public concerns is less a cause than a consequence of the present-day social organization of law. 50. See Monroe Freedman, Lawyers’ Ethics in an Adversary System (Indianapolis: Bobbs-Merrill, 1975). See also Monroe Freedman, Understanding Lawyers’ Ethics (New York: Matthew Bender, 1990). 51. This problem is discussed in Austin Sarat and Stuart Scheingold, “Cause Lawyering and the Reproduction of Professional Authority: An Introduction,” in Cause Lawyering: Political Commitments and Professional Responsibilities, ed. Austin Sarat and Stuart Scheingold (New York: Oxford University Press, 1998). 52. See Luban, Lawyers and Justice. 53. For a canonical statement of this position, see John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988). 54. The extreme of this position is again found in Rawls, A Theory of Justice. A powerful critique of the Rawlsian picture of the thin self is found in Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982). 55. See John Stuart Mill, On Liberty (Indianapolis: Bobbs-Merrill, 1976).



19

56. See Sandel, Democracy’s Discontents; also Frank Michelman, “Law’s Republic,” Yale Law Journal 97 (1988): 1493–1537. 57. For one example see Engel and Munger, “Rights, Remembrance.” 58. See Sarat, “‘Law Is All Over.” 59. David Trubek, “Where the Action Is: Critical Legal Studies and Empiricism,” Stanford Law Review 36 (1984): 575. Also Robert Gordon, “Critical Legal Histories,” Stanford Law Review 36 (1984): 57. 60. See Gordon, “Critical Legal Histories”; also Christine Harrington and Barbara Yngvesson, “Interpretive Sociolegal Research,” Law and Social Inquiry 15 (1990): 141. We should emphasize at the outset that there are considerable differences between and among those we have lumped together as taking the constitutive view. For example, Barbara Yngvesson’s study, “Making Law at the Doorway: The Clerk, the Court, and the Construction of Community in a New England Town,” Law and Society Review 22 (1988): 409, draws attention to the power of legal officials in shaping the (social) meanings of the “good neighbor,” or “dutiful parent,” but this effect of law on social meaning seems quite different from what, say, Gabel and Feinman have in mind when they contend that contract law encodes an invasive ideology, an idealized (and generally unarticulated and unexamined) way of thinking about conflicts and agreements that tends to legitimate (as natural and necessary) various oppressive socioeconomic realities. See Peter Gabel and Jay M. Feinman, “Contract Law as Ideology,” in The Politics of Law: A Progressive Critique, ed. David Kairys (New York: Pantheon, 1982). In the first case, the law’s effect on social meaning is relatively transparent and explicit; in the other, social meaning is engendered systemically and is, as a result, less easily detected. 61. See, for example, Catharine A. MacKinnon, Only Words (Cambridge: Harvard University Press, 1993). 62. See, for example, Mari Matsuda, Charles Lawrence, Richard Delgado, and Kimberlè Crenshaw, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, Colo.: Westview, 1993). 63. See Michel Foucault, “Governmentality,” Ideology and Consciousness 6 (1979): 5–21; also Discipline and Punish: The Birth of the Modern Prison, trans. Alan Sheridan (New York: Vintage, 1979). 64. See Jerold Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976); and Robert Burt, Two Jewish Justices: Outcasts in the Promised Land (Berkeley: University of California Press, 1988). 65. For another example of this type of relationship to law, see Lucie White, “Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G.,” Buffalo Law Review 38 (1990): 1. 66. See Austin Sarat and Thomas R. Kearns, “Writing History and Registering Memory in Legal Decisions and Legal Practices: An Introduction,” in History, Memory, and the Law, ed. Austin Sarat and Thomas R. Kearns (Ann Arbor: University of Michigan Press, 1999). Also Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven: Yale University Press, 2001).

RT9239_C00.qxd

6/25/04

12:51 PM

Page ii


The Chicago Conspiracy Trial as a Jewish Morality Tale Pnina Lahav [The trial was] a “Jewish morality play.” —Jerry Rubin, We Are Everywhere I came to wonder whether the judge’s efforts to escape his own Jewishness might not explain some of what went on in that courtroom. —J. Anthony Lukas, The Barnyard Epithet and Other Obscenities

The sixties were marked by a massive challenge to the conventional conception of American identity. The civil rights movement, the antiwar movement, students, hippies, and yippies urged a conceptualization of the struggle as “us against them,” seeking a redefinition of the meaning of identity.1 As expected, the challenge met serious and massive resistance. The conspiracy trial of the Chicago Seven is one battleground where the titanic confrontation between conservative and radical forces took place.2 It served as yet another stage upon which the conflict about the deeper meaning of American identity was unfolding. The Chicago conspiracy trial probably was the result of a sea change in American politics, when the progressive politics of the Great Society gave way to the conservative politics of law and order, amid an escalating war, a swelling antiwar movement, turmoil in universities across the country, and the intensification of black militancy. Shortly after power shifted from the Democrats to the Republicans, President Nixon’s Justice Department assembled and put on trial, together, leaders of the different factions of the protest movement: David Dellinger, a well-known pacifist and leader of the National Mobilization Committee to End the War in Vietnam (MOBE), Tom Hayden and Rennie Davis 21


22

Lives in the Law

of the MOBE and the Students for a Democratic Society (SDS), Abbie Hoffman and Jerry Rubin, representatives of the counterculture and founders of the Yippie movement, and Bobby Seale, chairman of the Black Panther Party.3 Their indictment stated that they conspired to cross state lines with an intent to incite a riot.4 A statute hastily enacted by Congress after the assassination of Martin Luther King and never used before was now deployed to quell dissent.5 Important issues rooted in the meaning of democracy and the scope of the protections guaranteed by the Bill of Rights leap to mind: how much offensive, high-decibel, potentially disruptive speech should society tolerate? When does speech turn into incitement? How much association are members of a group permitted before they are deemed to have turned themselves into a conspiracy to violate a law? How much responsibility should be assigned to the police, whose raison d’être is to maintain order? After the Chicago turmoil the Walker Commission, appointed to investigate the civil unrest, concluded that it was the police, not the citizens, who rioted.6 Who then should have been prosecuted for offending law and order?7 The conspiracy trial highlights other, no less intriguing, issues concerning political trials.8 Among them is the appearance of too intimate a relationship between the judge, the prosecution, and the security services (in this case, the FBI); the rigid, oftentimes improper trial procedures deployed by the judge against the defendants; the overt hostility of the prosecution to the defendants and what they stood for; the willingness of the defense lawyers to allow the defendants to shape the trial strategy (thereby turning the courtroom into a theater, sometimes into a circus, and fanning the hostility of the judge toward the defendants); the notorious binding and gagging of Bobby Seale, the only black man among the defendants, as he repeatedly demanded his right to choose his own lawyer or, in the alternative, to represent himself; the behavior of the defendants, refusing to rise when the judge entered the courtroom, munching jelly beans in open court, littering the defense table, and occasionally hurling what the New York Times politely called “barnyard epithets”; and the staggering contempt sentences against the defendants and their attorneys, ranging from two months to four years.9 At the end, the jury acquitted all the defendants of charges of conspiracy. Five were convicted of the individual offense of crossing state lines with intent to incite a riot.10 The convictions were reversed on appeal. The court of appeals also overturned most of the contempt con-


The Chicago Conspiracy Trial

23

victions and agreed that the conduct of the prosecution and the judge was so improper as to deny the defendants their constitutional right to a fair trial.11 This paper focuses on one of the least discussed aspects of the conspiracy trial: the issue of American-Jewish identity as it unfolded during the 1960s in general, and in 1968–69 in particular. The question of American-Jewish identity is interesting to me for obvious reasons. I was born and raised in Israel. I do experience a cultural difference between my American-Jewish friends and myself. My mother tongue is Hebrew and theirs English. My history is rooted in the Arab-Israeli conflict and Zionist ideology and theirs in the Founding Fathers, the Civil War, the New Deal, Vietnam. Our sensibilities, associations, intuitions are different. At the same time, the common Jewish ethnicity provides powerful glue. We all share the understanding that Jewishness entails a struggle, a struggle between universalism and particularism, a tension between the wish to be like everyone else and the realization that we are marked as others. For better and for worse, we all share the trauma of the Holocaust. Do we all share the same values and world view? If the Jewish aspect of the Chicago trial proves anything, it is that we don’t. There is more to my interest in American-Jewish identity. American Jews have played a prominent role in the American legal system of this century—as lawyers, legislators, law professors, and judges. One may even go as far as saying that the integration of American Jewry has been the most spectacular success story of America as an immigration society. And yet the Jewish presence in American law has not yet received a thorough exploration.12 Since Robert Cover’s seminal work “Nomos and Narrative,” more has been written about Jewish law and its relation to American culture.13 In this genre, the assertion of American-Jewish identity in law was expressed through the interweaving of Jewish law into the discussion of American law, as “Nomos and Narrative” does. But the examination of the secular American-Jewish identity has not received enough attention. In general, American-Jewish legal scholars prefer to write about other subgroups: African-Americans, Native Americans, women, and gays. The relative dearth of scholarship about the Jewish presence may reflect the enigmatic nature of this inquiry or the perception that the American-Jewish identity is a nonissue. On the other hand, the fact that so many American-Jewish scholars have been at the forefront of the critical search for equality may


24

Lives in the Law

mean that their concern is also a subtle vehicle through which to assess the meaning of being a member of the Jewish minority in America. Why this is so is a question that calls for another paper. I am only proposing to encourage a more vigorous dialogue about the meaning of American-Jewish identity in law. There is also a general reason to pursue this project. It deepens our understanding of the phenomenon of the hyphenated-American identity and its interaction with law. How do these hyphenated identities, mixing Native American attributes and attributes of other cultures— African, Anglo-Saxon, Asian, Indian, Irish, Italian, Jewish—play out in the law? From this perspective, this essay is a case study of the struggle between the politics of ethnic identity and national identity in the arena of the courtroom. Here are, in a nutshell, the particularly interesting aspects of the Chicago conspiracy trial from the perspective of American-Jewish identity. The trial has a judge (Julius Hoffman), three lawyers (prosecutor Richard Schultz14 and defense counsels William Kunstler and Leonard Weinglass), and three defendants (Abbie Hoffman, Jerry Rubin and Lee Weiner) representing different strands of AmericanJewish identity. I shall focus on three: Judge Hoffman, attorney Kunstler, and defendant Hoffman,15 one a staunch Republican, wealthy, conservative; the second a civil rights activist with a long record as a fighter for racial equality; the third a philosopher-clown, a selfappointed spokesperson for the counterculture and founder of the Yippie movement. If asked, all three would have probably said, “Jewishness had nothing to do with it.”16 And yet, beneath the heated surface of the politics of the trial lay the question of what it meant to be a Jew in America of the sixties, with an emphasis on the right side of the hyphen: Jewish-American. As Arthur Hertzberg tells it, three major themes fed the crisis of American-Jewish identity at the end of the 1960s. One was the relationship between the Jewish community and the African-American community. A second was the war in Vietnam. A third was the Six Day War. Throughout the twentieth century, American Jews were strong supporters of racial equality and of the black person’s quest for full integration into American society. This support, rooted in the common experience of persecution and religious values, was fortified by selfinterest. As Hertzberg explains, “By the mid-1950s, [Jews] had made base camp, through their rapid economic rise, for the final assault on



25

the Mount Everest of elite status in America. Now, through their role in the black revolution, Jews were making their first overt bid for a major place in the American elite. They were announcing themselves as a major force for solving America’s worst problem, racial tension.”17 Not every American Jew was supporting the black effort to undo the regime of discrimination, however. The tension in the black-Jewish alliance was simmering for a while, and by the early 1960s it could no longer be ignored.18 Some blacks were reacting negatively to what they experienced as Jewish patronizing. Jews were beginning to analyze their grievances against African-Americans as well as the ramifications of black equality for Jewish self-interest. The rise of “black power” in the mid-1960s further tested the fragile alliance. Black leaders such as Malcolm X and Stokely Carmichael offered a social analysis that pointed the finger at the Jewish responsibility for some of the black misery. In New York the tension between black demands for more communal participation and for more appointments of public school teachers (many of whom were Jewish and felt threatened by the black demands) erupted into the long 1968 strike.19 To this, one should add the fact that Jewish stores in the ghettos were the main victims of the riots in the cities. All of the above strained the Jewish-black relationship and encouraged a reassessment of the American-Jewish identity. How should an American Jew think about America’s racial problem?20 At the same time, domestic opposition to the American involvement in Vietnam was growing. The mainstream Jewish community, which in general supported the position of the United States government in the cold war, was rethinking its view. While some insisted that any criticism of a war involving the Soviet Union was “bad for the Jews” and “bad for Israel,” others were increasingly vocal about America’s involvement in what they saw as an unjust war.21 In late 1966, President Johnson reportedly “was disturbed by the lack of support for the Vietnam War in the American Jewish community at a time when he was taking new steps to aid Israel.”22 Within this context, the growing estrangement between the Old and New Left in America, both heavily populated by Jews, and the tension between Jewish members of the New Left were also affecting American-Jewish identity.23 Last, but not least, events in the Middle East had a bearing on the self-conception of American-Jews. The Eichmann trial of 1962 put before the world, for the first time, the distinctly Jewish narrative of the Holocaust and the Second World War.24 Five years later, the Six Day


26

Lives in the Law

War jolted the American-Jewish community, repeating the trauma of the Holocaust. Hertzberg explains: “[During] the Nazi years Jews had been too weak, too concerned about themselves, and too trusting of Roosevelt to go to war with major elements of American power and public opinion. In May–June 1967, some atonement was made for those years. The response to the Middle-East crisis was a way of saying that, come what might, Jews would not repeat such conduct . . . the Six-Day War thus united the Jews of America but it also made them somewhat lonelier and even angrier.”25 Attitudes toward Israel, particularly the question of the legitimacy of retaining the vast territories conquered in 1967, were tied intimately to the first two themes raised above. Many members of the civil rights movement as well as some in the antiwar movement and the New Left sided with the Arab, particularly the Palestinian side, of the Middle East crisis.26 Their political positions further shook American-Jewish identity by problematizing questions about racism, oppression, equality, and liberty. How does all this relate to the fact that so many of the participants in the Chicago conspiracy trial were Jewish? On the surface, it does appear as if “Jewishness had nothing to do with it.” Indeed, John Murray Cuddihy, in his The Ordeal of Civility, points out that “almost all the media eliminated the Jewish infighting in their accounts of the Trial.”27 However, despite the compelling universalistic allure of this thesis, it is not persuasive. Enough commentators have referred to the Jewish presence in the trial to indicate that below the surface the Jewish factor had significance and meaning. Helene E. Schwartz, one of the defendants’ appellate defense counsel, while denying the significance of Jewishness in the trial, quoted a Chicago lawyer as saying, “It’s said that every time Julius goes on the bench, he proves that he is not small, not stupid, and not Jewish.”28 Tom Hayden, in his book The Trial, described Judge Hoffman as an “overassimilated Midwestern Jew.”29 Hayden did not mention the Jewishness of the defendants or the defense counsels. Richard Nixon, on the other hand, who was elected president in 1968, saw Jewishness only on the defendants’ side.30 He was probably expressing the conservative stereotype that rabble-rousers and leftists (people like Marx, Trotsky, Rosa Luxemburg, Emma Goldman, Julius and Ethel Rosenberg) were Jewish. By and large, each side noticed Jewishness in the other camp, but failed to see it in its own camp. Thus, both the Left and the Right shared the perception that Jewishness was there and that it was somehow negative. No wonder, then, that each



27

side, if invited to reflect on its own Jewishness, would insist that “Jewishness had nothing to do with it.”31 The drive to compartmentalize the (private) Jewish self from the (public) American identity was a necessity in a social climate that associated “Jewishness” with the “other.” I argue that because of the peculiarity of the Chicago conspiracy trial, where many of the ordinary rules of decorum were suspended, the ever-present undercurrent of one’s Jewishness surfaced and its meaning was called into question. Thus, the courtroom served as space where different conceptions of American-Jewish identity clashed and informed various conceptions of law. Judge Julius Hoffman was seventy-four years old when the trial began. He came from a large family and enjoyed a comfortable childhood. He was a short, bald man, who paid close attention to his appearance and was always elegantly and meticulously dressed. In 1928 he married a wealthy divorcee, Eleanor Greenbaum, and remained devoted to her until she died in 1980. Julius and Eleanor did not have children, but Julius took his responsibilities as a stepfather seriously and raised Eleanor’s two sons from her previous marriage as if they were his own. Julius Hoffman graduated from the Northwestern Law School in 1915 and for a while was Dean John H. Wigmore’s research assistant. In 1953 President Dwight D. Eisenhower appointed him to the federal bench. His interest in legal scholarship distinguished him from most judges. Through the 1950s and 1960s, he regularly published reviews of law books and short doctrinal articles. Julius Hoffman was Jewish, married to a Jewish woman. He was not a religious man, and his stepson William did not recall the celebration of any Jewish holiday, not even Passover, in the family home. Still he epitomized the truth that Jewishness is an ethnic identity not necessarily tied to the observance of any religious commands. Hoffman was a much sought after speaker at Jewish events, a fact that shows that he was both considered Jewish by the Jewish community in Chicago, and that he was willing to play this role. Here is Hoffman in 1963 reflecting upon the meaning of being a Jewish judge in America: The Jew, by tradition—almost, one might say, by definition—is a scholarly and perceptive man, a humane man, and one to whom justice is very dear. For centuries the hostile governments that imposed physical and social restrictions on the Jew gave him time


28

Lives in the Law to develop his mental gifts. When democracy lowered the barriers the Jew was fully prepared to step out and take the place he was eminently qualified to occupy. It didn’t matter that generally he had to be twice as good as others in order to get half as much recognition. Or perhaps it does matter. Perhaps that is one explanation for his excellence, his determination, his durability. Now granted that being a Jew helps a man to be a good judge . . . it does not make him a judge with a Jewish bias. As a component of a system organized to dispense equal justice, a good judge is neither Jew nor Gentile. He knows the law and his rulings are made in accordance with it apart from any extraneous accident of birth or adherence to any particular theological doctrine. That is what we mean when we say that a man is a good judge. On the other hand, a Jew is always, everywhere, a symbol of his people. Whether or not he represents them officially or acts simply in his capacity as a judge, lawyer, businessman or bus driver, what he does is chalked up for or against the Jews as a whole. When a Jew offends against the law he injures all Jews. When a Jew administers the law excellently he also administers an antidote to anti-Semitism.32

In his autobiography, My Life as a Radical Lawyer, William Moses Kunstler observed that he and Judge Hoffman shared the same birthday (July 7) as well as German-Jewish origins.33 Kunstler grew up in a comfortable Jewish home in New York City. His parents, he wrote, “voted for Franklin Delano Roosevelt because they believed his presidency would benefit Jews,” and his mother focused mainly on “how local and world events affected the Jews.”34 His mother also urged him to marry a Jewish woman, more specifically, a German-Jewish woman.35 While he did abide by her wishes and twice married Jewish women, Kunstler experienced awkwardness about the Jewish difference. As a thirteen-year-old he “felt tired of the middle-class Jewish kids” in his neighborhood and joined an interracial gang “comprised of blacks and Hispanics.” They called him Yiddle (Yiddish for “little Jew”), and, he wrote, “although I ran with the gang, I never became close friends with any one boy.”36 Kunstler did not reflect on the meaning of this episode. In general, his autobiography does not show great introspection. But what he could have learned was that at precisely the moment when you believe that you have crossed the barrier and joined



29

“the other” group, that group designates you as “other”—Yiddle among blacks and Hispanics. At Yale University in the 1930s, where Kunstler pursued his undergraduate education, he encountered anti-Semitism as well as support for Nazism. “The message given by anti-Semitic Yalies was that it was not okay to be different. I ended up feeling uncomfortable and sometimes ashamed of being Jewish. At that age, I wanted acceptance more than anything, so while I don’t recall ever attending synagogue, I sat through many church services . . . [and] several of my sonnets . . . had Christian themes.”37 As a young man, Kunstler was not interested in a legal career. After military service during World War II he planned to become a journalist. However, he did end up at Columbia Law School, mainly, as he said, because his parents wanted him to, and out of competition with his younger brother.38 Kunstler started his career as an attorney with a conventional practice of torts, trusts, and estates. He became bored and restless. The radicalizing moment in his life came with the Rosenberg trial in the early 1950s. At first he ignored the case: “I may have been attempting to distance myself from it like my parents and many other Jews. ‘We need this like a hole in the head,’ my father used to say about the Rosenberg case, implying that Jews did not need such negative publicity. There was enough anti-semitism in the world.”39 But the case reshaped his attitude toward law and his own role in it. “I was appalled at the death sentences,” he wrote. On the night of the Rosenberg execution Kunstler and his wife were on the road, driving for a short vacation. When they heard the news they “stopped the car and began to cry.” He thought the conviction as well as the execution “wrong and tragic.”40 Kunstler points out that the judges in the Rosenberg trial were Jewish, and states: “I was certain that their Jewish identity was responsible for the convictions and the executions”; “I believe . . . [that] fear of being identified as a judge following his Jewish affiliation . . . gripped circuit Judge Jerome Frank on the day of the Rosenbergs’ execution [when he refused to grant a stay].”41 Kunstler concludes with an anguished admission of guilt: “Where were the rest of us Jewish lawyers, myself included? With rare exceptions, we sat around, talking, analyzing, complaining but doing nothing.”42 Kunstler yearned to become active. Surely, the Rosenberg trial was not the only factor responsible for his bloom into a “cause lawyer.” He


30

Lives in the Law

loved the publicity, the media visibility, the fast pace, and, as he wrote, the different way of looking at the law. Making constitutional arguments in civil rights cases, occasionally getting a judge to invalidate a statute, was very exciting. After the first case in which he won an argument establishing the constitutional right to travel, he wrote: “Let other lawyers draft wills and do real estate closings. I had changed the law! I had made a contribution! I felt an enormous thrill and a desire for more of the same.”43 He gradually became more involved in the civil rights movement, first, as he put it, “as a liberal lawyer and then as a radical lawyer.”44 He discovered the excitement of what he called “movement law”: “In the past, lawyers, myself included, viewed the law as sacred and inviolate. But movement law considered the legal system as something to be used or changed, in order to gain the political objectives of the clients in a particular case.”45 Kunstler first met Abbie Hoffman in 1964 in McComb, Mississippi. Abbie arrived there as a civil rights activist working in voter registration. Here is how Kunstler introduced Abbie in his autobiography: “As a liberal northern Jewboy, in the argot of the southern rednecks, Abbie got beaten up a lot.”46 Why did Kunstler choose to recall Abbie in terms used by the “rednecks”? He probably wished to impart the Jewish experience of abuse and the bond it established with southern blacks. The two got to know each other better when Kunstler represented Abbie before the House Un-American Activities Committee in 1965. Abbie and Jerry Rubin (fellow defendant in the conspiracy trial) wanted Kunstler as their defense attorney in Chicago. Out of deference to Black Panther Party chairman Bobby Seale, the Chicago defendants agreed to let Seale’s trusted lawyer, Charles R. Garry, head the defense team. But Garry fell ill, Judge Hoffman would not postpone the trial, and Kunstler found himself leading the defense together with cocounsel Leonard Weinglass.47 Abbie Hoffman was born Abbott Howard Hoffman in Worcester, Massachusetts, in 1936. In Ukraine, the Hoffmans went by the name Shapoznikov. They acquired the German name Hoffman while they were preparing to emigrate to the United States.48 The penchant for “better sounding” names is probably what drove John Hoffman, Abbie’s father, to name his first-born Abbot rather than Abraham, the name of Abbie’s uncle on his mother’s side after whom Abbie was named.49 Abbie graduated from Brandeis University and pursued an M.A. degree in psychology at the University of California, Berkeley,



31

before joining the civil rights movement in the mid-1960s. He soon became a leading player in the “counterculture,” and on New Year’s Day 1968, with Jerry Rubin and several others, founded the Yippie movement. There is a consensus that “the name came first, then the acronym, that would satisfy literal minded reporters.”50 Yippie founders claimed that YIP meant Youth International Party. The central premise of the new party was the irreconcilable differences between old and young attitudes and values. A new world order, based on youth culture, they insisted, would eradicate ethnic or national distinctions, and foster love and camaraderie on a universal basis. Yip, however, sounds like Yid (Yiddish for Jew), and Abbie affectionately referred to his movement as one of “Yiddishe Hippies.”51 Abbie came to Chicago to hold “A Festival of Life”—in response to the Democratic Convention that he called “A Convention of Death.” When Abbie, perhaps the most flamboyant defendant in the Chicago trial, began his testimony and was asked to identify himself, he said: “My name is Abbie, I am an orphan of America.” By that he portrayed himself as having the very DNA of America, a true son of the nation. To reiterate the lineage, he named the son born to him in 1971 “america,” indeed lowercase, but nevertheless America.52 Here is Abbie’s description of his biological parents: My parents were sucked into the social melting pot, where they were to simmer uncomfortably for the next thirty years. . . . Deep down I am sure we felt our parents’ generation was a bunch of cop outs. Six million dead and except for the Warsaw Ghetto hardly a bullet fired in resistance. . . . I was shuttled back and forth between Orthodox yeshiva after school on weekdays and the reform Temple Emanuel on weekends. It was getting me pretty mixed up. Eventually, Teffilin and Torah lessons gave way to dancing classes and discourses (in English) on the nature of life and how good things were in America.53 What do the judge, the lawyer, and the defendant have in common? First, they were all born and raised in the United States and identified themselves first and foremost as Americans. They understood the trial to be about the meaning of America, its ideals and its unique promise. We have already seen that Judge Hoffman referred to America as a democracy, where the Jew can prosper and excel. We also know


32

Lives in the Law

that he was very attached to his alma mater, Northwestern University. He was an active contributor to the Republican Party, his courtroom was decorated with portraits of Presidents Washington and Lincoln, and a bust of President Eisenhower was on display in his chambers. He was proud to be in their company. He was content with the American system, which brought him wealth, success, and—above all—respect. Consider the following exchange between Judge Hoffman and Tom Hayden at the end of the trial: Hayden. So Your Honor, before your eyes you see the most vital ingredient of your system collapsing because the system does not hold together. Judge Hoffman. Oh, don’t be so pessimistic. Our system isn’t collapsing. Fellows as smart as you could do awfully well under our system.54 Hoffman understood the defendants’ aim as one of subverting the core of the American civilization, which he had experienced as good and just. Whatever minor blemishes it had could be corrected through the well-established processes within it. The American “system,” albeit somewhat grudgingly, enabled him to distinguish himself. Law—particularly judicial decision-making—was a gratifying way of feeling fulfilled as an American and as a Jew. In his stately courtroom, backed by the Great Seal of the United States, facing an audience bound by the strict rules of decorum, armed with the power to proclaim what the law was, protected by the notion that as the oracle of the law he was anonymous and his religion immaterial, Judge Hoffman felt secure and confident. Both Kunstler as defense attorney, and Abbie as a defendant rejected Judge Hoffman’s conception of America and of the meaning of American law. By 1969 they came to view “the system” as thriving on white racial supremacy, poverty, conceit, and complacency. However, the common bond they shared with Judge Hoffman was their attachment to America. They did not think of themselves as loving America less; rather, they thought of themselves as loving its ideals more. They believed that their attack on the system, particularly during the trial, would precipitate its collapse and facilitate the rebirth of the “true America.” They wanted a revolution in its original sense, revolving to the point of origin and the spirit of the Declaration of Independence. Kunstler perceived his work as defense attorney in the Chicago



33

conspiracy trial as doing “movement law”—deploying legal doctrines and techniques to shatter the complacency of “the system,” thereby advancing the cause of social justice.55 But he went further than that. Kunstler admitted that during the trial he came to identify more and more with his clients. If until 1968 he was willing to work within the system (during the 1968 convention week he was vacationing in Europe and later voted for Hubert Humphrey), he now came to join forces with those who would fight it from without. He agreed to subordinate his own judgment of the correct trial strategy to the wish of the defendants to stage a political defense. In the choice of witnesses for the defense, as well as in pursuing several other crucial trial strategies, he did not take a leading role, as he probably should have, given his expertise and experience, but rather deferred to the defendants’ choice.56 In his exchanges with Judge Hoffman he came to display more and more chutzpah, contributing to the circus atmosphere that overwhelmed the trial.57 Abbie Hoffman was one of the strategists of the defense and one of only two defendants to take the witness stand. His challenge to the “system” and the judge representing it was displayed early on when he declared that he would change his first name to “fuck” so that when he came to the witness stand he could identify himself as “fuck Hoffman.”58 Jerry Rubin referred to the judge as “Abbie’s illegitimate father.”59 In speeches outside the courtroom, aimed to raise funds for the defense, Abbie led the crowds in chanting “fuck the judge” and “Screw Magoo” (“Magoo was [the defendants’] pet name for Judge Hoffman, who bore an uncanny resemblance to the blind cartoon curmudgeon Mr. Magoo”).60 Abbie had his own conception of law. If for Judge Hoffman law was a clear system of rules wrapped in solemn decorum, and for Kunstler law was “movement law,” for the defendant Hoffman law was theater—guerrilla theater, preferably. Here is Abbie speaking to the press as he arrived to stand trial in Chicago: “[The trial] is going to be a combination Scopes trial, revolution in the streets, Woodstock Festival and Peoples Park, all rolled into one.”61 At the end of the trial, Judge Hoffman took his revenge by inflicting harsh contempt-of-court sentences on the defendants and their lawyers.62 He described one of Abbie’s most famous acts during the trial: “On February 6, the defendant Hoffman attempted to hold the court up to ridicule by entering the courtroom in judicial robes . . . he remained in those robes for a considerable period of time before the


34

Lives in the Law

jury. Later, he removed the robes, threw them on the floor of the courtroom, and wiped his feet on them.”63 Abbie was delivering a powerful statement. Not only could anyone become the oracle of the law (judicial decision-making was nothing but appearance, determined by dress, not substance), even in the sanctity of the courtroom itself, but the uniform of impartiality and decorum—the judicial robe—was nothing but (to use the Yiddish word) a shmate (rag). Judge Hoffman chose to ignore two further aspects of this scene. To their black robes Abbie and Jerry affixed the Jewish yellow star. Underneath his robe, Abbie (but not Jerry, who was caught by surprise) wore a Chicago police shirt. I shall return to these aspects below. So far I have established the Jewish-American identity of the three and their different conceptions of law. Is there a common thread lurking underneath these radical differences? I suggest that what unites the three is the rage Jews have felt as they came to realize the gap between theory and practice, American idealism and American reality. All three deeply felt the gap between the promise that “all men are created equal,” the hope that this promise of freedom ignites in the heart of every American-Jewish child, and the reality of subtle discrimination and invisible barriers. One may call it the sheer shock of the cognition that their difference had powerful and negative consequences. Background, age, and life experience made them handle this rage in diverse ways, and their differences affected their attitude toward the law. Judge Hoffman, constructing his self to fit “the system,” retreated more and more into appearance, his own and the courtroom’s. In this small world, a highly stylized, formalized environment where Jewishness seemed irrelevant, surrounded by Americana, he perceived himself to be in total control. The dignity he enjoyed in the courtroom, artificial and coerced as it was, compensated for whatever indignity he felt as a Jew, always having (in his words) “to be twice as good as others in order to get half as much recognition.”64 A good illustration of this indignity we find in Jason Epstein’s The Great Conspiracy Trial. Epstein writes that Judge Hoffman once “admitted that he was ‘lucky to be Jewish’ since he thus became eligible for appointment to ‘the so called Jewish seat on the court.’”65 This may be interpreted as a statement of ambition and conceit. But there was no small amount of humiliation in the realization that, although a perfectly good American, he was eligible only to the particular ethnic seat



35

on the highest court. The feeling that one is forever confined to the ethnic group into which one had been born must create resentment, especially when one perceives significant disadvantages attached to the affiliation. That Judge Hoffman tried to put the best face on this state of affairs, calling himself lucky, should not detract from the fact that he was facing a formidable barrier. It is easy to detect rage in Kunstler—his shame of his difference when he was a young boy, the trauma of the Rosenberg trial. He sublimated his rage through identification with the plight of African-Americans and through his work as a radical lawyer. One interesting aspect of his autobiography is the change he underwent as a result of discovering the professional option of cause lawyering. If the first chapters of his autobiography are peppered with references to his Jewish experience, the rest of the book is almost silent on this issue. When he does refer to the Jewish issue, it becomes “extreme sensitivity, almost paranoia, about anti-semitism.”66 The civil rights movement was a vehicle through which Jews channeled their yearning for the realization of the American promise and their rage at its failure to be fulfilled. Abbie Hoffman was a committed civil rights activist who considered the Student Nonviolent Coordinating Committee (SNCC) “his family.” When in December 1966 the ideology of black power propelled SNCC to pass a resolution expelling all of its white members, an enraged Abbie published an article in the Village Voice expressing his anger and sense of betrayal: “Now I am mad. Emotionally and intellectually I am mad . . . [I feel] the kind of anger one might feel in, say, a love relationship, when after entering honestly you find that your loved one’s been balling with someone else, and what’s worse, enjoying it.”67 One of his biographers tells us that he said he felt “like a schmuck” and explains, “[T]his was the first time he [Abbie] had used Yiddish in print. In years to come he would introduce Yiddish expressions into the movement at large, injecting a Jewish identity into radical politics.”68 This was also the time when Abbie turned from political activist into hippie (and later a Yippie): “Indeed, a year after the Village Voice article appeared in print, Abbie shed his skin as a civil rights activist and SNCC supporter and emerged as a marijuana-smoking dropout on the Lower East Side. If only other white radicals would become hippies, too, there might be a real movement, he believed.”69 Thus viewed, Kunstler chose to sublimate his rage through cause


36

Lives in the Law

lawyering; Judge Hoffman by becoming a court Jew; and Abbie Hoffman by playing the court’s jester. The trial provided a platform for a (very raucous) dialogue between father, son, and grandson, about the right path a Jew should choose when he joins civil and Gentile society. If the judge were not Jewish, and therefore Kunstler and Abbie could not easily see in him a father figure, and he in them identify his sons, the personal tension that pulsated throughout their relationship might have been contained. The course of the trial under such a scenario might have been different.70 But Kunstler and Abbie understood Judge Hoffman’s vulnerabilities as few Americans could, and the more they pushed his buttons, the more he came to view them as “the enemy.” In the shadows of the Chicago conspiracy trial are other trials related to the history of Jews and Gentiles. I have already alluded to Julius and Ethel Rosenberg. Both Kunstler and Abbie were traumatized by the Rosenberg trial and by the Jewish silence that surrounded it.71 Judge Hoffman was appointed to the federal bench one month before the Supreme Court refused to stay the execution of the Rosenbergs; one month and six days before their execution. These were tense days for every American Jew. Did Julius Hoffman pause to think that he might be a pawn in the hands of the Eisenhower administration? That his appointment contained a message: there are good Jews and bad Jews? That he, Julius Hoffman, a good Jew, stood in sharp contrast to Julius Rosenberg, the bad Jew? When he placed the bust of President Eisenhower in his chambers, did he question why this president failed to commute the sentence of, or to pardon, Ethel Greenglass Rosenberg, mother of two, whose offense was much less serious than that of her husband? It is not possible to penetrate the walls of silence that enveloped Judge Hoffman’s thoughts on the Rosenberg trial. One faint clue may be his inability to remember the name of Kunstler’s cocounsel, Leonard Weinglass. Greenglass (Ethel’s maiden name and the name of her brother, David, who was the principal witness for the prosecution in her trial) is similar to Weinglass. Judge Hoffman referred to attorney Weinglass as “Weinrob,” “Weinramer,” “Weinruss.” Somehow, glass was an ending he could barely recall.72 Kunstler implicitly raised the ghost of the Rosenberg trial, where “the system”—using Jewish judges and Jewish prosecutors—tried, convicted, and executed the Rosenbergs, when he said to Judge Hoffman: “Your honor, you are trying a case deliberately designed to



37

destroy and kill dissent in the United States . . . and if you want to say to me that this case has nothing to do with the government’s attempt to destroy . . . all shades of dissent, you are free to say that.”73 Abbie Hoffman was much more blatant in his charge of collaboration. When he and Jerry Rubin arrived in court dressed in judicial robes, they had a further surprise for the judge, the spectators, and the media. Underneath Abbie’s black robes was the shirt of a Chicago police officer. The message was clear: like Judge Irving R. Kaufman in the Rosenberg trial, Judge Hoffman was a front for the brute powers of the executive. A work of fiction certainly should not be taken as empirical proof of the connection between the Rosenberg trial and the Chicago conspiracy case. And yet in E. L. Doctorow’s 1971 novel, The Book of Daniel, a monologue connects the two trials in explicit terms, thus bearing testimony to the mysterious ways in which the collective memory of American Jewry has been formed. The monologue is delivered by Artie Sternlicht, a self-absorbed hippie leader (Abbie?) and is directed at Daniel, Doctorow’s fictionalized Rosenberg son: Your folks didn’t know shit. The way they handled themselves at their trial was pathetic. I mean they played it by their rules. The government’s rules. You know what I mean? Instead of standing up and saying fuck you, do what you want, I can’t get an honest trial anyway with you fuckers—they made motions, they pleaded innocent, they spoke only when spoken to, they played the game. All right? The whole frame of reference brought them down because they acted like defendants at a trial. You dig? . . . I won’t come on except as a judge of them, a new man, like a new nation with new laws of life. And they will be on trial, not me. You see? They blew the whole goddamn thing!74 Charges of collaboration take us to the most painful trauma in Jewish history and to another trial: the Holocaust and the trial of Adolph Eichmann, chief executioner of the Final Solution for the German government of Adolf Hitler. The Eichmann trial took place in Israel in 1962—seven years before the Chicago conspiracy trial. It reached the home of every American Jew. Hannah Arendt’s Eichmann in Jerusalem launched a violent public controversy, particularly among the Jewish intelligentsia. She pointed an accusing finger at the Jewish leaders of Nazi-occupied Europe: “To a Jew this role of the Jewish leaders in the


38

Lives in the Law

destruction of their own people is undoubtedly the darkest chapter of the whole dark story.”75 The Eichmann trial and the Arendt controversy reopened an American-Jewish wound: had American Jews done enough to save their fellow Jews in Europe? Could it be that they ignored the plight and may thereby be perceived as “collaborators” with their government? There is enough evidence to show that the Holocaust and the Eichmann trial were on the mind of the participants of the Chicago conspiracy case. In 1968 Abbie Hoffman published Revolution for the Hell of It, a book he wrote after the events in Chicago, but before his trial, and from which the prosecution quoted extensively for the purpose of proving his subversive intent. On the third page, between a discussion of LSD and Fidel Castro, Abbie wrote: There are no rules, only images. Only a System has boundaries. Eichmann lives by the rules. Eichmann, machinelike, twitching nervously, pushes at his steel-rimmed glasses, takes his neatly folded handkerchief from the breast pocket of his gray-flannel suit and mops his sweating bald forehead.76 The transcript of the Chicago trial is replete with references to the Gestapo, to Hitler, and to the Holocaust. The most poignant is David Dellinger’s outburst at Judge Hoffman: You want us to be like good Germans supporting the evils of our decade and then when we refused to be good Germans and came to Chicago and demonstrated, despite the threats and intimidations of the establishment, now you want us to be like good Jews, going quietly and politely to the concentration camps, while you and this Court suppress freedom and the truth. A few minutes later the judge ordered the marshals to take David Dellinger out of the courtroom. A brawl erupted, and Jerry Rubin is reported to have “jumped out of his chair at the defense table and marched rigidly towards the judge’s bench, his right arm held stiffly out. ‘Heil Hitler, Heil Hitler, Heil Hitler, Heil Hitler, Heil Hitler.’ He screamed, ‘I hope you are satisfied.’”77 Abbie added his own spin: “You are a disgrace to the Jews, you would have served Hitler better, dig it.”78 It was shortly thereafter when Abbie Hoffman and Jerry



39

Rubin appeared in court wearing the judicial robes. In the context of the collective Jewish memory about the Holocaust this incident gains particular power. To their robes Abbie and Jerry attached the yellow star, designed to distinguish Jew from Gentile under Nazi law. The message they were trying to convey to the judge, the jury, and the media was that the judiciary was not immune to totalitarian tendencies and pressures and may well collaborate with the government in denying the humanity of the marginalized and despised. While Judge Hoffman did not refrain from engaging the defendants and their attorneys in sharp repartees—in fact he mostly insisted on having the last word—he failed to react to any references concerning the Holocaust. The protest movement and the defendants often advanced the idea that civil disobedience to an evil regime was justified. As an example, they used Hitler’s Germany. Judge Hoffman refused to engage. The following exchange concerning civil disobedience occurred during the cross-examination of defense witness Donald Kalish by U.S. Attorney Thomas Foran. Foran. In protest to the war, do you think it is justified? Kalish. In certain situations. My analogy would be back to Germany during the Hitler regime . . . Foran. I asked you specifically in protest to the war. He is not responding to my question. The Court. There was no reference to the late Mr. Hitler.79 The phrase “the late Mr. Hitler,” quite odd in any context, was meant to achieve several goals. First, it retained a high level of formality amid the chaotic atmosphere of the trial. Even Hitler was respectfully addressed. It also assisted the judge in maintaining the illusion of a court hermetically closed to outside influence, as if to say that even the identity of “the late Mr. Hitler” was irrelevant in Chicago. “Late” is also a reference to the past, and Judge Hoffman could have been saying that historical events occurring outside America’s shores had nothing to do with the case. But of course Judge Hoffman’s refusal to take judicial notice was absurd, and his reaction only solidified his image as a rote oracle of the law. The Eichmann trial was present in the Chicago conspiracy trial from yet another angle. In the 1960s the Eichmann trial was the most famed full-fledged trial to combine strong theatrical elements with a


40

Lives in the Law

pervasive media presence.80 It was used by the State of Israel to present to the world the history of European Jewry from the rise of Fascism in the 1920s and 1930s to the death camps of the 1940s, the liberation, and the creation of the Jewish state. Eichmann was the formal defendant, yet with him stood to trial the entire Nazi regime. It was a successful attempt to use the prosecution as a vehicle to commit testimony and events to memory. The trial was also meant to be an educational device about the horrors of the Holocaust and about the duty of resistance.81 The Chicago conspiracy defendants and witnesses tried to do exactly that. They wanted the world to realize that the entire protest movement was on trial. Heroes of the counterculture, popular artists, leaders of the civil rights and antiwar movement, rank-and-file activists, scholars, and commentators, trying to explain “the movement” in social and historical terms—all came before the court, committing the 1960s to memory. Allen Ginsberg, Judy Collins, Pete Seeger, Arlo Guthrie, William Styron, Norman Mailer, Jesse Jackson, Ralph Abernathy, Timothy Leary were among those called upon to present “the movement” to the world. Efforts were made—most were unsuccessful because the judge would not permit them—to record the evils committed by the American government at home and abroad. As in the Eichmann trial, the testimonies were not directly relevant to the events stated in the indictment. Rather, they were meant to bring the spirit of the time into the courtroom, to show the entire mosaic, rather than the narrow slice to which the law prefers to confine itself. At issue was the legitimacy of the rebelliousness of the young against the old, what Tom Hayden called “our identity against theirs.”82 The quintessential young rebel, repeatedly invoked by Kunstler and Abbie, was Jesus Christ. Jesus was the rebel against the Jewish establishment; his trial and crucifixion were themes that inspired and fascinated these two Jewish men.83 Jesus and the Jews, of course, have had a long history. The accusation against the Jew of murdering Christ has been a perennial theme in Christianity and a constant threat to Jews over the centuries.84 For this reason the trial of Jesus makes Jewish listeners who are attuned to Jewish tradition and history uneasy. At the same time, the image of Jesus as a challenger of the establishment, a social radical and a man made to suffer for his views, has been seductively attractive to Jewish reformers. A Jewish reformer invoking the name of Jesus signals affinity with likeminded Gentile reformers,85 while at the same time distancing him- or herself from the traditional Jewish consciousness.86



41

Abbie tapped this tradition when he spoke to his followers: I said (in a speech during convention week): When you march to the amphitheater tomorrow, you should keep in mind a quote from a two-thousand-year-old Yippie with long hair named Jesus who said that when you march into the dens of the wolves you should be as harmless as doves and as cunning as snakes.87 The identification with Jesus served several purposes. It depicted Kunstler and Abbie (and possibly most Jewish members of the protest movements at the time) as the savvy citizens of modern American civilization, where Jesus was secularized and could serve as a role model to all conscientious souls, Jews included. From this perspective the reference to Jesus reinforced the notion of a Judeo-Christian civilization and provided a glue that would bind Christian and Jewish members of the movement. Christians identified with the Jewish trauma of the Holocaust, while Jews recognized the universal greatness of Jesus, albeit in a secular and not a theological context. But the reference to Jesus had another purpose. Here is an exchange between Kunstler and Judge Hoffman, which so impressed Kunstler that he quoted it in his autobiography: Judge Hoffman. This is not a political case as far as I am concerned. Kunstler. Well, Your Honor, as far as some of the rest of us are concerned, it is quite a political case. Judge Hoffman. It is a criminal case. There is an indictment here. I have an indictment right up here. I can’t go into politics here in this court. Kunstler. Your Honor, Jesus was accused criminally, too, and we understand really that this was not truly a criminal case in the sense that it is just an ordinary . . . Judge Hoffman (interrupting). I didn’t live at that time. I don’t know. Some people think I go back that far, but I really didn’t. Kunstler. Well, I was assuming Your Honor had read of the incident.88 For Kunstler, as he explained in his autobiography, this was a gesture of comic relief, designed to “relieve the intensity of this most serious and awful ordeal.”89 He also reported, “I became something of a comic myself and learned, for the first time, how wit could be used by a trial


42

Lives in the Law

lawyer to benefit his client.”90 Kunstler used his reference to the trial of Jesus as an illustration of this technique, but there was more there. In depicting Jesus as the quintessential victim of an unjust trial, he perforce relegated Judge Hoffman to the role of the evil judge and the evil Jew. In responding, rather smugly, “I was assuming Your Honor had read of the incident,” he depicted Hoffman as the ghetto Jew, unversed in the culture outside of his small Jewish universe or, in the alternative, as someone who was denying the truth. The judge, on the other hand, while sticking to his effort to exclude “irrelevant” materials, was indeed reacting as a Jew. “I didn’t live at that time” could mean, “We Jews have suffered enough as a result of the death of Jesus. Please don’t revive the specter of collective responsibility.” Or, “I am an individual, an American; the ‘sins’ of my ancestors should not be visited upon me.” One may even interpret his joke about his old age as an effort not only to ridicule the claim that the trial represented a generational war, but also to turn this exchange into a merely personal reference, rather than the ominous revival of the historical Christian grievance against the Jews. The exchange captures a very interesting phenomenon that increased in intensity during the trial. The defendants and their cocounsels91 subtly portrayed the judge as a Jew, an “other.” In a curious way, and probably unself-consciously, they were acting as JeanPaul Sartre’s anti-Semites, creating the Jew by “otherizing” him.92 Judge Hoffman, ever sensitive to appearances, made heroic efforts to retain the public/private distinction and leave his Jewishness outside of the courtroom. Kunstler and Abbie hammered it in. This process came to its peak when Abbie unleashed his anger against the judge, in one of the most famous episodes of the trial: Your idea of justice is the only obscenity in the room. You schtunk. Vo den? Shanda fur de goyem, huh [You skunk, what more? A shame before the Gentiles].93 Again, this statement invites interpretation. Abbie was very angry and speaking from the heart. In the context of the trial, Abbie, the defendant, was speaking, not English, the language all Americans had in common, but rather the language that the Jews had brought with them from Europe. In doing so he exposed the judge, sitting under and protected by the Great American Seal, as a Jew, for all of the United States to watch.



43

Judge Hoffman understood this very well, even if as an AmericanGerman Jew he was not familiar with Yiddish. In his speech about Jewish judges he conceded that a Jewish judge was forever under scrutiny, always representing the collectivity of Jews and always on trial.94 Nothing could be more painful to Judge Hoffman than being stripped of his judicial authority and exposed before the media as a Jew who has brought shame upon his people. Julius Hoffman did not conceal his pain. He shared it not with Abbie, but rather with William Kunstler, a fellow German-Jew, an officer of the court, about the same age as his own stepson William, in the context of the discussion about Black Panther leader Bobby Seale: Hoffman (to Kunstler). Even if I were wrong, if I were wrong, even if the many times he called me the vile names he called me—I don’t know how it could be proven that a man of my faith was a pig [Seale referred to the judge as “a racist pig, a fascist pig”]; that would be very difficult—but . . . you represent yourself to be a leader at the Bar, and you have practiced in all of these courts that you have mentioned, you have never, never, made an attempt to say something like this to him: “Bobby, hush. Cool it. Sit down now.” You let him go on. Kunstler. Your Honor, I am glad your Honor spoke because I suddenly feel nothing but compassion for you. Everything else has dropped away.95 In this precious exchange, Hoffman was baring his heart to Kunstler. He was hurt, particularly by the references to his Jewish identity. He had expected Kunstler to defend him—for the sake of the honor of the court, but probably also out of Jewish solidarity. By doing nothing, Kunstler had collaborated in the humiliation of a fellow Jew. Kunstler understood that well; hence his response, “I suddenly feel nothing but compassion for you.” As a Jew, on a deep level, he understood what this had been about, even though he would do nothing about it.96 Viewed from this perspective, the true locus of tension in the trial was between the two German-Jews who found themselves on opposite sides of the divide in America of the late 1960s. John Murray Cuddihy’s thesis in The Ordeal of Civility, that Judge Hoffman was locked in struggle with Abbie Hoffman, the Eastern European Jew, only partially captures the tension in the trial. Indeed, the judge was very upset about the


44

Lives in the Law

uncivil behavior of the defendants and their lawyers, but he reserved his irk and vengeance for the German-Jewish Kunstler. He expected more from Kunstler, who shared his background and social class, and he therefore inflicted upon him the formidable penalty of four years and thirteen days in prison (compared with the eight months he gave Abbie).97 The Bobby Seale incident, a major confrontation between a Jewish judge acting in behalf of the American legal system and a black defendant insisting on his constitutional rights,98 returns us to Arthur Hertzberg’s observations about American-Jewish history in the second half of the twentieth century. We have already seen how the Holocaust, identified by Hertzberg as one of the important forces in the shaping of American-Jewish identity in the sixties, featured in the conspiracy trial and in the consciousness of the protest movement. The Seale incident brings into stark relief the complex relationship between blacks and Jews in America of the 1960s. The defendants and their lawyers, veterans of the civil rights movement, were eager to stand behind Seale and display their support for his cause. During that course of identification they came increasingly to view Judge Hoffman, representative of the establishment, as their enemy. They might have seen Judge Hoffman as representative of their parents’ generation, willing to extend formal equality to blacks, while at the same time internalizing white America’s racist consciousness. Their zealous support of Seale may have been designed not only to emphasize the difference between them and everything that Judge Hoffman stood for, but also to silence the discomfort that they must have been experiencing in view of the Black Panthers’ overt hostility to Jews. The social history of the Black Panthers takes us to the Six Day War of June 1967. That war, from which the Israel emerged glorious and triumphant, was a watershed event for American Jewry.99 The period before the war, when an isolated and friendless Israel faced lethal threats from its Arab neighbors, brought to the surface the dark anxiety bred by the Holocaust. The stunning victory replaced that anxiety with endless pride and joy, as the “new Jews” of Israel’s Defense Forces reenacted before the world the biblical tale of David and Goliath. The “final” defeat of the old stereotype of the meek and helpless Jew encouraged a new assertiveness and political confidence in young American Jews. It should be responsible, at least partially, for their massive participation in the antiwar and counterculture movements. At the same time, the



45

war exacerbated the already strained relationship between blacks and Jews. Young American Jews were torn between their identification with the heroic “new Jew,” on the one hand, and their identification with the underdog, the African American, and by extension, the Palestinian, on the other. Young blacks were torn between their identification with the children of Israel, erstwhile slaves in Egypt, and their resentment of the triumphant white representatives of the imperialist, neocolonialist world. Whereas many in the black community, empathizing with the Arab, particularly the Palestinian cause, came to view Israel as a part of the evil forces of oppression, the Jewish community was beginning to experience a disagreement within itself. Issues of foreign policy and support for Israel mixed with important domestic matters, such as violence in the inner cities, affirmative action, and welfare. Jews began to disagree, in private and in public, and their identity went through yet another transformation. For one willing to use the microscope, the undercurrents of these disagreements can be detected underneath the chaotic surface of the Chicago Conspiracy trial. The Chicago conspiracy trial may be seen as the triumph of the theory of the melting pot: all of its participants, including its Jewish participants, perceived themselves as Americans first. As I tried to show, they had conflicting visions of what America meant and what the role of law in the American republic has been and should be. The different visions of the Jewish participants were informed, perhaps not exclusively, yet substantially, by their experience as Jews in America and by the way their very different personalities integrated and gave meaning to these experiences. Not only their worldview but also their legal arguments were informed by their Jewishness. This is clearly evident in their reference to major trials in American history (the Rosenberg trial), in European and Israeli history (the Eichmann trial), and in Western consciousness (the trial of Jesus). Similar studies of other subgroups in American society, such as Asian-American, Hispanic-American, and Arab-American, will further complement this work and enrich our understanding of the relationship between law and identity in democracy. NOTES I wish to thank Austin Sarat, Janet Dolgin, Laura Kalman, Jack Katz, Leora Bilsky, and Tom Hilbink for reading previous drafts and making valuable comments.


46

Lives in the Law

1. See generally, Todd Gitlin, The Sixties: Years of Hope, Days of Rage, rev. ed. (New York: Bantam, 1993); Arthur Marwick, The Sixties: Cultural Revolution in Britain, France, Italy, and the United States (Oxford: Oxford University Press, 1998); Irwin Unger and Debi Unger, eds., The Times Were a Changin’ (New York: Three Rivers Press, 1998). 2. See, e.g., Tom Hayden, Trial (New York: Holt, Rinehart and Winston, 1970), chap. 6, titled “Their Identity on Trial”: “Putting our identity on trial caused our prosecutors to expose their own” (49). The trial is sometimes referred to as the Chicago Eight Trial, because the original indictment named eight defendants. It is a conspiracy trial because the indictment charged the eight of a conspiracy. After defendant Bobby Seale’s trial was severed, the trial became known as the Chicago Seven Trial. I shall refer to it as the Chicago conspiracy trial, as that name captures better its essence as a political and cultural event. 3. Two academics, John Froines and Lee Weiner, were added to these six leaders, making the number of defendants eight. Froines and Weiner were not as prominent as the other six. Theories about why they were included range from the desire to include people clearly associated with universities to a ploy to provide grounds for partial acquittal that in turn would fortify public perception that the remaining six were justly accused. Larry Sloman, Steal This Dream (New York: Doubleday, 1998), 171. David J. Danelsky also suggested that the inclusion of Froines and Weiner “gave some substance to the government’s case, for without the count involving incendiary devices, the indictment charged little more than thinking, speaking, and associating—activities generally regarded as protected by the First Amendment.” David J. Danelsky, “The Chicago Conspiracy Trial,” in Political Trials, ed. Theodor L. Becker (Indianapolis: Bobbs-Merrill Co., 1971), 146. 4. United States v. Dellinger, 472 F.2d. 340 (1972), cert. denied, 410 U.S. 970 (1973) (following the Seventh Circuit’s decision to reverse and remand and the denial of certiorari, the government decided not to press for a retrial). 5. 18 U.S.C. sec. 2102. 6. Rights in Conflict: Convention Week in Chicago August 25–29, 1968, A Report Submitted by Daniel Walker (New York: E. P. Dutton, 1968), 5. Some, however, felt that the problem was not low-level police brutality but rather a deliberate order from above to use excessive force. For an analysis of the dilemma of the police see David Farber, Chicago ’68 (Chicago: University of Chicago Press, 1988), 129–32. 7. In March 1969 a grand jury in Chicago indicted eight police officers and the eight demonstrators. The police officers were subsequently acquitted. Exiting attorney general Ramsey Clark, who opposed the prosecution of the demonstrators, called it “politics pure and simple. The eight-to-eight balance makes this clear.” Jason Epstein, The Great Conspiracy Trial (New York: Random House, 1970), 34. 8. Leora Bilsky, “Political Trials,” in International Encyclopedia of the Social and Behavioral Sciences, ed. Neil J. Smelser and Paul Baltes (Oxford: Elsevier Science, forthcoming), vol. 3.8 and references therein.



47

9. See generally Epstein, The Great Conspiracy Trial; John Schultz, Motion Will Be Denied (New York: William Morrow, 1972); Pnina Lahav, “The Chicago Conspiracy Trial, Character, and Judicial Discretion,” University of Colorado Law Review 71 (2000): 1327. 10. The five were David Dellinger, Rennie Davis, Tom Hayden, Abbie Hoffman, and Jerry Rubin. John Froines and Lee Weiner were acquitted. United States v. Dellinger, 472 F.2d 340 (1972). 11. In the Matter of David Dellinger, 461 F.2d 389 (1972); In the Matter of David Dellinger, 370 F.Supp. 1304 (1973). 12. Donna E. Artz, “The People’s Lawyers: The Predominance of Jews in the Public Interest,” Judaism 35 (1986): 47; Robert Burt, Two Jewish Justices: Outcasts in the Promised Land (Berkeley and Los Angeles: University of California Press, 1988); Marc S. Galanter, “A Vocation for Law? American Jewish Lawyers and Their Antecedents,” Fordham Urban Law Journal 24 (1999): 1125; Sanford Levinson, “Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity,” Cardozo Law Review 14 (1993): 1577; Naomi Maya Stolzenberg, “Un-covering the Tradition of Jewish Dissimilation: Frankfurter, Bickel, and Cover on Judicial Review,” Southern California Interdisciplinary Law Journal 3 (1994): 809. 13. Robert Cover, “Nomos and Narrative,” Harvard Law Review 97 (1983): 4. For work interweaving Jewish Law into American culture see, e.g., Suzanne Last Stone, “Judaism and Postmodernism,” Cardozo Law Review 14 (1993): 1681; and, most recently, Joseph Singer, Edges of the Field: Lessons on the Obligations of Ownership (Boston: Beacon Press, 2000). 14. The Jewishness of all the participants except for Schultz is a matter of public record. Jerry Rubin, We Are Everywhere (New York: Harper and Row, 1971), 74, refers to Schultz’s Jewishness and says he was trying to educate Schultz, presumably to remind him of the common Jewish past of oppression and the need to identify with the underdog. The “education” of Schultz, however, amounted to Rubin’s periodically “saying to him, loud enough so he’d hear but not loud enough to disrupt the trial, ‘Schultz, you would have made a great nazi prosecutor’” (We Are Everywhere, 74). 15. There is a consensus in the literature that these three were the outstanding Jewish participants in the trial. I shall weave in the presence of some of the other participants as this essay unfolds. 16. I first came across this reaction (even though the particular phrase was not used) in Helene E. Schwartz, Lawyering (New York: Farrar, Straus and Giroux, 1977), 99: “Some said that his rumored discomfort at his own Jewishness accounted for his animosity toward the defendants and their lawyers, a good half of whom were of Jewish background. I never believed this.” In many conversations where the issue was raised the first reaction was that Jewishness was an irrelevant or trivial factor in the trial. 17. Arthur Hertzberg, The Jews in America: Four Centuries of Uneasy Encounter (New York: Simon and Schuster, 1989), 340. 18. See David Brion Davis, “Jews and Blacks in America,” New York Review of Books, December 2, 1999, and references there. See also Stuart Svonkin,


48

Lives in the Law

Jews against Prejudice: American Jews and the Fight for Civil Liberties (New York: Columbia University Press, 1997). I am grateful to Thomas M. Hilbink for referring me to this book. 19. See generally, Janet Dolgin, Jewish Identity and the JDL (Princeton: Princeton University Press, 1977). 20. See generally, Arthur Liebman, Jews and the Left (New York: John Wiley and Sons, 1979), 564–67. 21. “In a major study of student activism conducted by the American Council of Education during the 1966–1967, a Jewish background was the single most important predictor of participation in anti-war or anti-(college) administration protests” (ibid., 68). 22. Hertzberg, The Jews in America, 370. 23. See Liebman, Jews and the Left, 576–87. 24. Pnina Lahav, “The Eichmann Trial, the Jewish Question, and the American Jewish Intelligentsia,” Boston University Law Review 72 (1992): 601. 25. Hertzberg, The Jews in America, 371–73. For an elaborate discussion of the impact of the Holocaust on American Jewry, see Peter Novick, The Holocaust in American Life (Boston: Houghton Mifflin Company, 1999), 146–50. 26. Liebman, Jews and the Left, 568–76. 27. John Murray Cuddihy, The Ordeal of Civility: Freud, Marx, Lévi-Strauss, and the Jewish Struggle with Modernity (New York: Basic Books, 1974), 194. For my analysis of Cuddihy’s thesis, see text accompanying note 98 below. 28. Schwartz, Lawyering, 99. Schwartz disclosed her own Jewish sensibilities by referring to a particular argument she developed in the appellate brief as Dayenu: “We ended . . . with the following argument: ‘It may be that any one of the episodes discussed here might not necessarily in and of itself require reversal. However . . . the cumulative prejudicial effect of the trial judge’s behavior requires reversal of appellant’s convictions.’ ‘You may laugh’ I said to Doris, ‘but this part of the brief reminds me of a section in the Passover Seder . . . called Dayenu which is Hebrew for “It is sufficient,” . . .’ ‘It’s just like the section with the judge,’ I continued . . . ‘If he had only interfered with the presentation of the defense, it would have been sufficient for reversal . . . But he did all these terrible things, and surely there must be a reversal’” (181–82). 29. Hayden, Trial, 51. Hayden omitted this vignette in his book Reunion (New York: Random House, 1988). Hayden’s own Catholic identity is very evident in the trial, e.g.: “Going upstairs to the jury room on the first day of the trial, we felt like the early Christians being paraded before the Romans” (Trial, 77). 30. “‘Aren’t the Chicago Seven all Jews?’ Nixon asked his chief of staff, H. R. Haldeman, as though he assumed that Jews and radicals were one and the same. ‘Davis is a Jew, you know,’ the president continued. When Haldeman explained that Rennie Davis was definitely not a Jew, Nixon retorted, ‘Hoffman, Hoffman’s a Jew.’ There was no dispute there. ‘Abbie Hoffman is and that’s so,’ Haldeman agreed.” Jonah Raskin, For the Hell of It: The Life and Times of Abbie Hoffman (Berkeley and Los Angeles: University of California Press, 1996), 201.



49

31. Two of the Jewish defendants, however, did refer to the Jewish aspect of the trial, but they may have done so in hindsight. See Rubin, We Are Everywhere, 74; and Lee Weiner, interviewed in Sloman, Steal This Dream: “It was dope-taking, longhaired Jews against these straight-assed goyish guys. . . . It was a Jewish morality play” (187–88). 32. Julius Hoffman, speech before the Jewish Federation Campaign, Dinner in Honor of Jewish Judges, December 12, 1963, Chicago Historical Society, Hoffman Archive, folder 8. 33. William M. Kunstler, My Life as a Radical Lawyer (New York: Citadel Press, 1994), 11. See also David J. Langum, William M. Kunstler: The Most Hated Lawyer in America (New York: New York University Press, 1999). 34. Kunstler, My Life, 56. 35. Ibid., 56, 54. 36. Ibid., 58. 37. Ibid., 67. 38. Ibid., 80, 82. 39. Ibid., 90. 40. Ibid. 41. Ibid., 93. 42. Ibid., 94. 43. Ibid., 97; emphasis in the original. 44. Ibid. 45. Ibid., 105, and he continues: “Movement law was created and refined in the South by lawyers like me and dozens of others, as we rushed from one civil rights crisis to another, inventing legal remedies as we went, with the goal of desegregation before us at all times.” 46. Ibid., 7. 47. Ibid., 14. Tom Hayden, in his autobiography, Reunion, omits the fact that Judge Hoffman was Jewish, but does tell us that Charles R. Garry was of Armenian origin (346). 48. “The original family name is Shapoznikoff. My grandfather’s brother stole identity papers from a German named Hoffman and fled to America around 1900.” Abbie Hoffman, Soon to Be a Major Motion Picture (New York: Perigee, 1980), 13. 49. Raskin, For the Hell of It, 9. “Johnnie [Abbie’s father] wanted to be embraced by gentiles and to move freely in their world” (7). 50. Gitlin, The Sixties, 235. Present at the creation were Paul Krassner, Abbie and Anita Hoffman, Jerry Rubin, and Nancy Kurshan. Abbie Hoffman, Revolution for the Hell of It (New York: Pocket Books, 1970), 85; Hoffman, Soon to Be, 137; Jack Hoffman and Daniel Simon, Run, Run, Run: The Lives of Abbie Hoffman (New York: Putnam, 1994), 89. 51. Hoffman, Soon to Be, 137. But see also Raskin, interpreting YIP as “suggesting Walt Whitman’s ‘Barbaric yawp’ (For the Hell of It, 129). Codefendant and cofounder of the Yippies, Jerry Rubin agreed that Jewishness was an important factor in the understanding of Yippie: “I think we must destroy all sectarian religions to create a common Communist humanity based on a universal moral-


50

Lives in the Law

ity. . . . Judaism—as well as Christianity and other religions—have universalized into yippie” (We Are Everywhere, 76). 52. According to Raskin, Abbie Hoffman was the first person to be prosecuted under the new federal statute that made it a crime to deface or defile the flag of the United States by wearing a “flag shirt.” Abbie’s attorney, Gerald Lefcourt, explained that in wearing the shirt Abbie was “saying ‘I’m more American than you’” (Raskin, For the Hell of It, 178). This episode and Abbie’s appearance in a flag shirt on the Merv Griffin Show (which was censored) show Abbie claiming that the American flag (i.e., American culture) was as natural to him as a second skin. 53. Marty Jezer, Abbie Hoffman American Rebel (New Brunswick, N.J.: Rutgers University Press, 1992), 204; Farber, Chicago ’68, 6. 54. Contempt: Transcript of the Contempt Citations, Sentences, and Responses of the Chicago Conspiracy 10 (Chicago: Swallow Press, 1971), 112. 55. For an elaboration on cause lawyering, see Austin Sarat and Stuart Scheingold, eds., Cause Lawyering: Political Commitments and Professional Responsibilities (New York: Oxford University Press, 1997), 317. 56. “I made an opening statement which focused on the First Amendment. . . . The defendants were furious with me for this opening. They wanted me to talk about Vietnam rather than what was happening to their rights. . . . It became clear to me after I blew it with my opening statement that these defendants wanted to decide for themselves what happened during their trial. They wanted our legal strategies to reflect their political philosophies. After a time, I began to understand their point of view and act on it. Chicago became a proving ground for the political-legal defense” (Kunstler, My Life, 19). 57. Judge Hoffman was seventy-four years old and Kunstler fifty years old. Judge Hoffman’s stepson was also named William. Indeed, some of the verbal exchanges between the two were typical of a father-son exchange, with the father trying to whip some manners into the recalcitrant son. 58. Raskin, For the Hell of It, 201. 59. Rubin, We Are Everywhere, 21. 60. Raskin, For the Hell of It, 198. 61. Ibid. 62. In the Matter of David Dellinger, 461 F.2d 389 (1972). For example, defendant David Dellinger received a sentence of two years, two months, and nine days. Abbie Hoffman received a sentence of eight months. Attorney Kunstler received a sentence of four years and thirteen days. The Court of Appeals for the Seventh Circuit reversed and remanded, holding inter alia that Judge Hoffman should have disqualified himself from hearing the contempt proceedings. Most of the charges were later dismissed. In the Matter of David T. Dellinger, 370 F. Supp. 1304 (1972). 63. In the Matter of David Dellinger, 461 F.2d 389 at 429. For this conduct Judge Hoffman sentenced Abbie to seven days in jail. On remand Judge Gignoux convicted Abbie, holding that this conduct “constituted an actual and material obstruction of the administration of justice.” In the Matter of David



51

Dellinger, 379 F. Supp. at 1314. However, Judge Gignoux also ordered that due to extenuating circumstances no sentence should be imposed (1323). 64. See text accompanying note 32. 65. Epstein, The Great Conspiracy Trial, 143. 66. Kunstler, My Life, 158: “Jack [Ruby] joined the army and was discharged after three years with a good record. But his growing violent outbursts and extreme sensitivity, almost paranoia, about anti-Semitism left those who knew him concerned about his mental stability.” 67. Raskin, For the Hell of It, 76. 68. Ibid. 69. Ibid., 80. 70. Indeed, on appeal before the Seventh Circuit and later in their new trial for contempt before Judge Gignoux, all of the defendants and their lawyers behaved in accordance with convention. One may, however, attribute this change in demeanor to their sober understanding of what was at stake rather than to the personalities of the judges before whom they appeared. 71. Raskin, For the Hell of It, 11: “As an adult [Abbie] would resent the fact that neither his teachers nor his parents had told him of the trial and execution in 1953 of Julius and Ethel Rosenberg.” Jack Hoffman, Abbie’s younger brother writes: “Later, when Ethel and Julius Rosenberg were accused of giving the secrets of the nuclear bomb to the Russians, they were accused not only of treason but, implicitly, of failure to assimilate. Their names were never mentioned in our house, not during the trial, or even later at the time of their execution in 1953. . . . We were Americans and Jews, in that order. Americans first.” Hoffman and Simon, Run, Run, Run, 27. See also Jack Hoffman’s description of the family’s distress during the 1960s: “To some people we must have appeared as traitors of the same stripe as Julius and Ethel Rosenberg, whom people still thought of as archcriminals. Jewish acquaintances might say to me, ‘what is your fucking crazy brother up to now?!! He’s an embarrassment!’” (Hoffman and Simon, Run, Run, Run, 127). See also Jerry Rubin’s free association concerning the connection between the trial and the Rosenbergs: “[The trial] was in the tradition of Socrates, Jesus . . . the Rosenbergs” (We Are Everywhere, 32). 72. In one instance, however, he called him “Fineglass.” Another interpretation of Judge Hoffman’s failure to remember attorney Leonard Weinglass’s name is the disdain he felt toward anyone associated with the defendants or his discomfort with Eastern European Jewish names. 73. Anita Golove Shmukler, “The Chicago Seven Trial: The Rhetoric of Melodrama,” Ph.D. diss., Temple University, 1976, 132. As late as 1967, Kunstler was sure that fear motivated American-Jewish judges to rule against defendants charged with national security violations. In the context of Morton Sobell’s 1967 failed motion to vacate his conviction, Kunstler observed, “I am convinced that had (federal judge Edwin) Weinfeld not been Jewish, he would have ruled in Sobell’s favor” (My Life, 93). 74. E. L. Doctorow, The Book of Daniel (New York: Penguin, 1996), 151. 75. Hanna Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil


52

Lives in the Law

(New York: Penguin, 1994), 117. The charge of collaboration, however, appeared previously in Ben Hecht, Perfidy (New York: Julian Messner, 1961). Arendt does not mention the controversial Perfidy, but it is not impossible that her account of the conduct of the Jewish leadership in Eastern Europe during the Holocaust is based on Hecht’s polemical book. For a discussion, see Pnina Lahav, “A ‘Jewish State . . . to Be Known as the State of Israel’: Notes on Israeli Legal Historiography,” Law and History Review 19 (2001): 387, 420. 76. Hoffman, Revolution for the Hell of It, 15. The Eichmann trial was one of the defining events of the 1960s. Adolph Eichmann, chief executioner of Adolph Hitler’s plan to murder the Jews, was kidnapped from Argentina and brought to Israel to stand trial. The Israelis put him in a glass booth, opened the courtroom to cameras, provided simultaneous translation into a variety of languages, and proceeded to document Nazi atrocities in all their gruesome details. See Pnina Lahav, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley and Los Angeles: University of California Press, 1997), 146. One of the deepest wounds of Jews was the silence of the world during the Holocaust. Now Israel was trying to heal the wound by asserting the Jewish right to put the perpetrators on trial, for the whole world to watch. Among those who brought the trial to America was philosopher Hannah Arendt. Her book Eichmann in Jerusalem was a defining event for many on the New Left, who came to demonstrate in Chicago and sought a different path for America. The demonstrations in Chicago were primarily known for the chant, “The whole world is watching.” The reader should decide if the deeper wound at the core of the Eichmann trial was reverberating in that slogan. One thing, however, is clear: many in the protest movement came to see the United States government as a 1960s reincarnation of the Nazi regime (see, e.g., Gitlin, The Sixties, 25). 77. Epstein, The Great Conspiracy Trial, 410. This scene becomes even more bizarre when one considers the fact that many of the marshals in the courtroom were of Polish descent. The Nazi death camps employed a large number of Polish and Ukrainian guards. The spectacle of Marshal Dobowski following Judge Hoffman’s orders to restrain the seemingly persecuted and helpless defendants had an eerie aura about it. 78. In the Matter of David Dellinger, 461 F.2d 389 at 428. In another incident he said to the judge: “The Judges in Nazi Germany ordered sterilization, why don’t you do that, Judge Hoffman?” (429). In We Are Everywhere, Jerry Rubin also discusses his Holocaust trauma: “When I was in Germany recently I felt very Jewish. Stew (Albert) and I freaked out when we saw a German in uniform. . . . We met Danny Cohn-Bendit [sic] . . . [and] said . . . ‘Hey, we thought the subway conductor was taking us to a concentration camp,’ and Danny jumped up and down and shouted, ‘Me too! I feel the same way!’” (75). 79. Jules Feiffer, Pictures at a Prosecution; Drawings and Text from the Chicago Conspiracy Trial (New York: Grove, 1971), 93. 80. For a penetrating analysis of such political trials, see Mark Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick, N.J.: Transaction, 1997).



53

81. Shoshana Felman, “Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust,” Theoretical Inquiries in Law 1 (2000): 465; Leora Bilsky, “In a Different Voice: Nathan Alterman and Hannah Arendt on the Kastner and Eichmann Trials,” Theoretical Inquiries in Law 1 (2000): 509. 82. Hayden, Trial, chap. 4, “Our Identity on Trial”; chap. 6, “Their Identity on Trial,” 29, 49. 83. Leonard Weinglass, Kunstler’s cocounsel, relied on the Gospel of Matthew in his closing argument: “Christ said ‘I have come here to set sons against fathers, daughters against mothers . . .’ and what he meant was that the new idea he was bringing, and this was a long time before our present generation gap, would set the old generation off from the new generation. That is the Passion according to St. Matthew, but you have to understand Christ, you would have to understand what he meant in order not to interpret that as a violent statement.” The Conspiracy Trial, ed. Judith Clavir and John Spitzer (Indianapolis: Bobbs-Merrill, 1970), 558. In an interview with the author Mr. Weinglass explained that relying on the Gospel was meant to get to the hearts of the non-Jewish jurors. However, he did concede that invoking Christ may cause discomfort to Jewish listeners inasmuch as it may suggest Jewish responsibility for his death. 84. Jean Paul Sartre, Anti-Semite and Jew (New York: Schocken Books, 1995), 67. 85. See, e.g, Benjamin Harshav, Language in Time of Revolution (Berkeley and Los Angeles: University of California Press, 1993), 30 n. 13. 86. For example, Hannah Arendt, in her Eichmann in Jerusalem, titles her discussion of the alleged collaboration of the Yudenrat with the Nazis as “The Wannsee Conference, or Pontius Pilate” (112). She implies that just as the Jews handed Jesus over to Pilate (presumably knowing full well what consequences would follow), so the Yudenrat handed over the Jews to the Nazis. 87. Clavir and Spitzer, The Conspiracy Trial, 365. 88. Kunstler, My Life, 26–27. 89. Ibid., 26. 90. Ibid. 91. Both Kunstler and Weinglass referred to Jesus in their closing arguments. Kunstler said: “To use these problems by attempting to destroy those who protest against them is probably the most indecent thing that we can do. You can crucify a Jesus . . . you can jail a Eugene Debs or a Bobby Seale . . . but the problems remain” (Clavir and Spitzer, The Conspiracy Trial, 567). For Weinglass see the passage quoted in note 83 above from Clavir and Spitzer, The Conspiracy Trial, 558. See also . 92. See generally Sartre, Anti-Semite and Jew, 84. In a similar fashion, it is arguable that Abbie’s Jewish identity was rekindled when SNCC excluded him from their ranks. See text accompanying note 67. 93. In the Matter of David Dellinger, 428. In the spirit of political correctness, some interpreted the phrase to mean “Front Man for the WASP Power Struc-


54

Lives in the Law

ture” (Rubin, We Are Everywhere, 68). The original Yiddish, however, knows no distinction between WASPS and other Gentiles and is built on the premise that every “bad” move of a Jew in the outside world (before the Goyim) is damaging to Jews. 94. Hoffman, speech before the Jewish Federation Campaign. 95. Contempt, 209. 96. The compassion expressed by Kunstler did not prevent the judge from imposing on Kunstler a sentence of four years in prison for contempt of court. Nor did it prevent Kunstler, or any of the other members of the defense, from depicting Judge Hoffman in very negative terms. 97. Cuddihy, The Ordeal of Civility, 194. 98. See Pnina Lahav, “The Chicago Conspiracy Trial: Character and Judicial Discretion,” University of Colorado Law Review 71 (2000): 331. 99. Novick, Holocaust in American Life, 148–49.


Law and Everyday Death: Infanticide and the Backlash against Woman’s Rights after the Civil War Sarah Barringer Gordon

In Philadelphia in July 1868, Hester Vaughn was tried for first-degree murder.1 Vaughn was a young English immigrant, and had been a domestic servant. Unmarried and alone, she gave birth in a boardinghouse and was found by neighbors with her dead infant. The baby’s skull had been crushed; bludgeoned by a blunt instrument, according to the coroner. Clots of blood were found on the baby’s head, and its abdomen showed signs of a severe beating. Before the birth of her child, Vaughn had denied her pregnancy to the neighbors and other residents of the boardinghouse, who later found its body under the bed of the room she rented. At the trial, one woman testified that she had heard the baby crying. Vaughn, such testimony implied, had planned to murder her infant before its birth, and attempted to hide its very existence.2 The all-male jury voted, quickly, to convict. In his sentencing colloquy, Court of Common Pleas judge James Ludlow addressed the prisoner. Her crime was both heinous and prevalent, he charged. Infanticide had become so common, Ludlow concluded, that some woman must be made an example of. He sentenced Vaughn to hang “for the establishment of [the] principle” that death awaited women who killed their own children. She was taken to Moyamensing Prison to await execution.3 While Vaughn languished in a Philadelphia jail in the fall of 1868, suffragists in New York cast about for “issues ripe for agitation.” Fresh from defeat in other venues—the failure of the popular referendum for 55


56

Lives in the Law

woman suffrage in Kansas in 1868 is only the most obvious—liberal woman’s rights advocates broadened and deepened their political focus. Their “search for a constituency” in the late 1860s, as Ellen DuBois put it, had been characterized primarily by rejection and disillusionment.4 They formed the Working Woman’s Association, a group composed of wageearning women and middle-class woman’s rights activists, one of several attempts to form politically productive alliances. The association found only one notable cause. Temporarily at least, their campaign to save Hester Vaughn from the gallows provided suffragists with a popular story, and a sensational topic. They used the Vaughn case as a means of raising and debating a range of issues about the violent oppression of women, laced with class, racial, and scientific undertones. Their reconstruction of Hester Vaughn’s story was cumulative, reaching its height for a several weeks in November and December 1868. It then disappeared from view almost as quickly. This article is a study, in other words, of a celebrated case. The reason for the sudden disappearance of Vaughn from the pages of the liberal press are as intriguing as the decision to use her as an example of injustice in the first place. Hester Vaughn was plucked from obscurity by suffragists for strategic purposes. In their hands her story became a morality play that illustrated the flaws of the legal system by which she was trapped. And yet here, as with many other celebrated causes, there was palpable tension between the particularity of Vaughn’s life and the death of her newborn infant, and the issues and arguments that woman’s rights activists wanted to connect with her case. To turn Vaughn into an appealing heroine of a legal drama, suffragists invented a Hester Vaughn in their own likeness. They challenged head-on Vaughn’s conviction and the system that had produced it. The construction of a coherent story in the press, especially in the liberal prosuffrage newspapers in New York, called into question the validity of the “facts” that had emerged from the trial. The debate between the two forums, between the law of the courtroom and narratives in the press, highlighted a dynamic that characterized popular debate about sensational criminal prosecutions. Public fascination with private violence allowed activists to exploit the pathos of an actual drama and to inject their own concerns into the plot. The trajectory of Vaughn’s life intersected with, and then quickly separated from, the social movement that grew up around the issues her plight represented. What had looked in the courtroom like a depressingly quotidian, if underprosecuted, crime became a battle over women’s rights in the


Law and Everyday Death

57

press. Suffragists homed in on the Vaughn case as an example of the gendered meaning of responsibility and the role of law in the perpetuation of injustice. They drew out of the life of an English servant woman and the death of her baby a tangle of claims of innocence, violence, and indeterminacy. Even as her stature as a symbol of oppression grew, however, Hester Vaughn was also a real presence in the prison system of Pennsylvania. The “facts” of her case and her own maneuvering for release, combined with her apparent desire to escape the embrace of her own supporters, eventually undid the dramatic tissue that woman’s rights activists had constructed around her story. Perhaps the most important lesson of “Hester Vaughnism,” as advocacy on Vaughn’s behalf was popularly known, is that it backfired. Stories and Strategies The most striking feature of the debate over Vaughn is the plasticity of her story. Vaughn’s isolation and desolation were manipulable, as readily deployed by her opponents as by her defenders. The debate swirled away from Vaughn, from Philadelphia, and even from poor women, as New York suffragists spun the tale in their own interests and the opposition followed suit. Hester Vaughn truly became a vehicle, a vessel into which was poured the hopes and fears of liberal suffragists, much as Judge Ludlow had used Vaughn as a symbol for all the unpunished infanticides he spoke of at sentencing. Suffragists proceeded largely without regard, as their critics pointed out later with no little satisfaction, for the “facts” of Vaughn’s treatment by the very men suffragists accused of betraying her. In the mainstream press, suffragists eventually were exposed as manipulators of fact at best, moral monsters in more extreme formulations. The backlash revealed the extraordinary difficulty of talking about infanticide in public, despite its everyday occurrence. Suffragists, no less than their opponents, apparently were incapable of a treatment of Vaughn that would both acknowledge her agency and yet remain sympathetic to her plight. The acknowledgment of deliberation and violence on Vaughn’s part undid the complex of sympathy that enveloped Hester Vaughn (and still does, in many historical treatments).5 Thus while the Vaughn case has received periodic attention from historians, they have not focused on the role of this kind of crime—infanticide—in the formation of an agenda for woman’s rights, or on the uses of actual cases by activists in the suffrage movement. Prosecutions for infanti-


58

Lives in the Law

cide, and the imposition of the death penalty on the women convicted of killing their own infants, had been the subject of a powerful critique twenty years earlier by author and activist Lydia Maria Child. Telling the story of Elizabeth Wilson, hanged in 1786 after she was convicted of infanticide, Child claimed that Wilson’s brother frantically rode to the gallows with a pardon, only to find that his sister had already been executed by a vengeful and heartless state. He saw her corpse swinging on the scaffold.6 In Child’s story of Wilson’s execution, the state, rather than the woman, was the violent offender. Perhaps the example provided by Child’s dramatic condemnation of the death dealt by a male legal system prompted suffragists to take up a similar case two decades later. Certainly the Vaughn case, which also involved a death sentence, provided a contemporary vehicle for raising questions about the “justice” meted out to lone and friendless women. In the late 1860s, however, the deployment of publicity about a particularly poignant infanticide case, and the consequences of such publicity for the criminal defendant as well as for those who championed her cause, exposed the dangers of highlighting a form of intentional killing that was (and is) both ubiquitous and unspeakable. The everyday occurrence of infanticide travels uneasily alongside competing, even contradictory, reactions of horror at the death of a newborn and sympathy for the woman who killed her own offspring. Woman’s rights activists exploited the sympathy generated by Vaughn’s plight. They also strove to distance the visceral repugnance that their audiences showed for women who “willingly” or “knowingly” killed their infants. This was a dangerous strategy, as later events proved. Once Vaughn’s supporters had undertaken to make an example of a young woman whose isolation and misfortune made her vulnerable to public inquiry and prosecution, they all too quickly found themselves tarred with accusations that they colluded in her guilt, and by extension in the guilt of all women who sought to “avoid the responsibilities” of pregnancy and motherhood. Uncontrolled sexuality and violence by women lay at the root of such irresponsibility, charged their opponents. “Hester Vaughnism” thus provided liberal activists with a sensational vehicle, but a topic whose moral edges shifted ever further out of reach.7 Suffragists made two alternative, even contradictory, bundles of arguments on behalf of Vaughn. The first translated her tale into one of



59

rape and insanity. In this story line, Vaughn was a victim pure and simple; she bore no responsibility either for her pregnancy or the death of her newborn. Her conviction was based on a mistake of fact, a failure to appreciate the true circumstances of her pregnancy and labor. In the second set of arguments, suffragists argued that a double standard divided society, slicing legal consequences according to gender and class and race, rather than guilt or innocence. Vaughn, they claimed, was convicted by her poverty and her sex and even her whiteness. She was unfairly punished for acts that wealthy women and all men (including “Negroes”) committed with impunity. The legal system was not so much mistaken, in this scenario, as inevitably corrupt, compromised by its lack of a woman’s voice in the making and administering of law.8 This critique of the double standard in law traveled alongside the claim of rape, and thus of innocence by any standard. Woven together, the claims constructed a vision of Hester Vaughn, of her trial and conviction, that personified a literal travesty of justice; factual innocence, that is, obscured by an unjust legal system. It was the factual half of the equation, the portrayal of Vaughn as the ultimate victim—a woman not morally responsible for her pregnancy (she had been raped) or legally responsible for infanticide (she was insane at the time)—that exposed suffragists to derision by the mainstream press and that undermined their alternative theory of a double standard in law. The story of Hester Vaughn, the celebrated case, eventually cost the cause dearly. But while the going was good, the Vaughn case appeared to be the best of both worlds; a dramatic, heart-wrenching (the suffrage press titled stories about Vaughn with labels like “Another Dose of Heart-aching Facts”) example of the myriad consequences of women’s powerlessness. The Revolution, the weekly newspaper edited by Elizabeth Cady Stanton and managed by Susan B. Anthony, noticed the Vaughn case early on in an editorial in August 1868. According to the editorial, Vaughn was a “poor, ignorant, friendless and forlorn girl who had killed her newborn child because she knew not what to do with it.” Vaughn had been “seduced” by “our society and our civilization,” which was implicated in her crime.9 The case then disappeared from the pages of the Revolution until November, when it emerged as a central feature of the cultivation of the “wholesome discontent” that Anthony urged upon laboring women in general and the Working Woman’s Association in paraticular.10 In a speech in early November,


60

Lives in the Law

the popular lecturer and activist Anna Dickinson described Vaughn’s “terrible wrongs and sufferings,” in what the Revolution labeled “her usual graphic and feeling manner,” at a lecture at the Cooper Institute to benefit the Working Woman’s Association.11 In an editorial on November 19, Stanton picked up on Dickinson’s use of the Vaughn story and changed the tone, ratcheting up the tale of seduction into a sentimental trope of female beauty and guilelessness exploited by male cunning and heartlessness. Stanton charged that Vaughn was a “pretty English girl” who had been seduced by her own employer, whom she had trusted when he offered her work for his family.12 “But alas!” Stanton wrote, “her protector proved her betrayer, and she was turned into the street at the very time she needed shelter, love and care.”13 The claim that “protection” of women by men was nothing more than a veil for oppression of the same women by the same men was plumbed not only in the Vaughn case, but was a staple of liberal suffragism. Private authority, especially male control of households and the sexuality that occurred within households, was the essence of the problem, according to woman’s rights activists. For it was the rubric of “protection” that justified the virtual legal invisibility of married women under the system of coverture and provided the political mandate for men’s “representation” of women’s interest at the polls. Protection of this sort, for suffragists like Stanton, was the seedbed of abuse, the negation of individual rights by rendering women publicly invisible.14 As suffragists probed the Hester Vaughn story, weaving into the tale their critique of the “protection” afforded women by men, they eventually cast the blame for Vaughn’s pregnancy on a purported bigamous husband, and eventually a rapist, in addition to the original (ambiguous) charge of seduction by a licentious employer. At a meeting of the Working Woman’s Association in late November, journalist Eleanor Kirk filled in more detail on Vaughn, saying that “[Hester had] married the man she loved; but on coming with him to this country she found that he had another wife. She was deserted, and left to wander through the streets of a great city in a strange land. In that condition a child was born to her on the streets, when she was dragged in a dying condition to the Station-House. In the morning the babe was dead.”15 Kirk called for the appointment of a committee, and the solicitation of the “influential persons in this city” to sign a petition asking for Vaughn’s pardon. A delegation from the Working Woman’s Associa-



61

tion consisting of Kirk and Dr. Clemence Lozier visited Vaughn at the Moyamensing Prison several days later. They then called a meeting to publicize the results of their inquiry on the evening of December 1 at the Cooper Institute. According to advance publicity about the meeting in the New York World, Vaughn had a “sweet, trusting face altogether, showing her to be a woman of a confiding, viny nature, who would cling to one she loved through good and evil treatment, and who would suffer and keep silence rather than let others know of her troubles.”16 Vaughn, in this view, was a woman for whom “protection” was a trap (her confiding nature and trusting face were evidence of her vulnerability), and privacy an insulating device for her oppressor (her loyalty and reluctance to complain would shield the wrongdoer). As the story gathered steam, the question of Vaughn’s moral innocence in the conception of the child carried ever greater weight. The tale became one of outright rape, rather than a more subtle seduction at the hands of “civilization,” or an employer, or even a deceptive bigamist. Vaughn had “yielded only to physical force,” Kirk charged, and did not love the man who fathered her child.17 At the Hester Vaughn rally that night, Kirk reported that Vaughn would not reveal the name of the man who overcame her, “not in a moment of weakness and passion, but by superior strength—brute force.”18 Vaughn’s resolve, Kirk said, came from the desire to protect the woman who had since married her ravisher. “Glorious Hester Vaughn!” Kirk thundered to applause from the audience, “True as steel to her own sex.”19 Vaughn’s physical weakness as a woman, then, and her vulnerability to abuse in a spurious system of protection were no evidence of moral weakness, or lack of resolve, according to her defenders. Far from creating her own ruin, Vaughn had resisted, ultimately protecting another woman from the exposure of her husband’s perfidy. Vaughn, in Kirk’s portrait, was abused by male physical and social power but rose above it, refusing to shatter the potential happiness of another woman, who might be better served by the very man who had escaped punishment for the rape of Vaughn. This extraordinary sacrifice and virtue in the face of violence were typical of women, in the view of liberal suffragists. They were also undervalued (even unrecognized) by the men who claimed women were adequately represented by their husbands, fathers, and employers. Instead, innocent women were doubly punished, first by the men they trusted, and then by a legal system that ignored the painful truths of women’s lives.


62

Lives in the Law

Dr. Lozier offered her medical opinion next, diagnosing the case as one of “puerperal mania,” or “puerperal blindness.” Vaughn had been blinded by the pain of giving birth, a blindness that Lozier claimed could last up to four days. It was this mania that explained the marks on the infant’s body, caused not by deliberate, calculated violence, but by virtue of having fallen or fainted on top of the baby. “I believe this poor girl when she says ‘I did not see’” Lozier reported. “That poor woman, in her agony, alone, without fire, without light, may have injured the child, but not wilfully. I said to her: ‘Hester, you love children?’ She replied: ‘No one ever loved children more than I do, no one. I dearly love them. I wish I had my little babe. It would be some comfort to me.’”20 Given Vaughn’s fondness for children and her report that she “did not see” after giving birth, Lozier argued, the death was nothing more than an accident, brought on by temporary insanity, hardly the coldblooded murder Vaughn had been convicted of. Vaughn would have drawn “comfort” from her baby, the only character in the plot as vulnerable as she, claimed her supporters. Instead, she suffered additional punishment. Responsibility and the Double Standard in Law And yet Vaughn had been convicted of killing that same beloved child. The social difficulty of absorbing such an act is as great today as it was in 1868. The fact that infanticide is common does not make violence by women against newborns easier to talk or think about. Indeed, the assumption that the widespread availability of abortion has “solved” the problem of infanticide is a myth that retains considerable power in the early twenty-first century. Few statistical studies address the issue, which remains among the most unstudied and unspoken forms of infant death. Abandonment, smothering, strangling, and other forms of infanticide remain far more common than scholars, medical professionals, or media address openly. Infants are still frequently “tossed away in the trash, suffocated in bags, smothered in shallow graves.”21 The revelation that sudden infant death syndrome (SIDS) has sometimes been a euphemism for infanticide, for example, re-creates in contemporary language the medical and theoretical explanations that nineteenth-century woman’s rights activists deployed in their defense of Hester Vaughn.22 The death of infants is always painful, frequently inexplicable. The placing of blame in such circumstances violates the



63

sense that sympathy and respect for private grief are the most appropriate response to such profound loss. And yet the recent cases of Amy Grossberg and Susan Smith, two widely publicized infanticide trials, highlight the fact that the death of newborn infants remains, as it apparently has been throughout human history, a frequent if infrequently discussed (or prosecuted) occurrence.23 Traditionally, infanticide was a difficult crime to prove, especially when the infant in question was a newborn killed shortly after birth by its mother. Smothering, crushing, abandonment, even beating of newly born infants may produce no marks different from those that result from a difficult labor or stillbirth. In nineteenth-century Philadelphia, thousands of dead newborns were found in alleys, ash heaps, privies, rivers, and so on. Doubtless many more were never discovered, or if found, never reported or recorded. The cause of death was, in most cases, undetermined and undeterminable. One historian has even speculated that women may actually have killed more frequently than men, if infanticides are added into the total number of other forms of homicide.24 Hester Vaughn’s case was thus unusual, not because it involved the death of a newborn, but because the evidence of violence was so unambiguous. A counterexample reveals the relative openness of the cause of death for Vaughn’s infant. On the same day that Vaughn’s trial was held, Rose Solomon, also a domestic servant, was tried in the same court for the same crime. But because Solomon’s child showed “no marks of violence whatever,” there was, as the district attorney admitted to the jury, no conclusive evidence that the child had not been dead before it was thrown in the sewer. It was a sad and unusual sight, the Philadelphia Inquirer reported, to see “those two young girls sitting side by side in the prisoner’s dock, who, having fallen, in order to hide their shame, had brought themselves within one step of the gallows.”25 Solomon, like the majority of women accused of infanticide, was acquitted. In circumstances of ambiguity, compassion dominated legal outcomes.26 But the sympathy that traditionally greeted defendants in infanticide cases was contingent. It depended both on a sense of plausible doubt about the cause of death (thus the exercise of compassion would not be based on an obvious ruse) and on the desperation of the accused (who presumably, therefore, acted out of panic and despair rather than as a calculating murderer). In Vaughn’s case, the brutality of the death of her newborn seemed to belie innocent explanations. Vaughn’s behavior before the birth, too, violated traditional legal and social norms. In English law, a woman who refused the help of other women


64

Lives in the Law

when she gave birth was subject to suspicion. Any woman who was found to have concealed the death of an illegitimate child could be hanged for murder. By the nineteenth century, however, the law in Pennsylvania and other American jurisdictions required proof of a live birth for an infanticide conviction. Thus by the time of Vaughn’s trial secrecy was no longer dispositive. Yet Vaughn’s flat denial of her pregnancy to neighboring women and the fact that she gave birth “alone” despite the presence of experienced and (so the testimony implied) sympathetic women in the house, resonated with the traditional presumption that secrecy meant guilt. And according to her neighbors’ testimony, Vaughn must have planned the murder of her baby even before its birth. Otherwise why conceal her pregnancy? Without the benefit of the usual ambiguity that sustained the sympathy of jurors and judges, Hester Vaughn drew the full wrath of the law. Vaughn also symbolized a new fear. Her trial coincided with widespread campaigns for medical and legal control of women’s reproduction. Doctors, lawyers, and clerics called for the enactment of legislation criminalizing abortion and the provision of birth control. Frequently, they drew no distinction between abortion and infanticide, calling both the betrayal of sacred duty. In England as well as the United States, alarm over infanticide coincided with fear of violence by women, and provided a powerful counterweight to romantic images of motherhood. Traditional associations between infanticide and unmarried women led many commentators to connect illegitimacy with women’s violence. More recent notions of the essential “emotional” (as opposed to logical or rational) nature of all women also played into debates over infanticide. Opponents of abortion blended fear of irrationality with condemnation of woman’s rights claims to a separate moral and legal world for women. The danger, they claimed, was that women would abuse and murder helpless infants and then shield their crime behind claims of “woman’s sympathy.”27 In England, alarm over infanticide in the 1860s prompted widespread concern, even panic, over the hidden violence of women. For example, one coroner in a poor London parish claimed that twelve thousand women then living in London had killed their own newborns. The influential British Medical Journal, as the historian Ruth Homrighaus has shown, focused repeatedly and intently on “who was responsible for infanticide, why they committed the crime, and how



65

they could be stopped.”28 Punishment, British doctors concluded, would be the best deterrent. The sympathetic involvement of wellmeaning but ineffective upper-class women, they argued, only clouded the issue and shielded wrongdoers. Their concern, as well as their sense that infanticide was properly subject to criminal penalties, was mirrored in Judge Ludlow’s determination to impose the death penalty on Hester Vaughn. “[Y]ou have no idea how rapidly the crime of infanticide is increasing,” Ludlow assured a group of woman’s rights activists. “Some woman must be made an example of.”29 Contrary to the exaggerated sympathies of “strong-minded” suffragists, the legal system knew murder when it saw it. The activists’ campaign to save Vaughn drew stinging rebukes in defense of punishment. Hester Vaughn, the New York Times insisted, was a violent criminal: she did not deserve “apologies for her crime, mawkish sentimentality about her sufferings, and appeals, not only for her pardon, but for her triumphal release from the prison where she is confined.”30 The sense that infanticide was both prevalent and largely unpunished was not confined to the working women whose interests the suffragists claimed to represent. Especially in large cities, married women of wealth and stature also “redden[ed] their souls” with the blood of their own children. The problem was especially common in urban areas, where the lure of pleasure led women to sacrifice infants to their own selfish desires. Abortion, charged the conservative press, was as much a threat as the murder of newborns. Both were forms of infanticide. A New York Times editorial, written on the day of the Hester Vaughn rally in New York, claimed that “the horrible crime of infanticide prevails to such an extent in America, that in some localities the growth of the population is seriously affected by it. In great cities especially, its results are as shocking as they are alarming; and the attention of social philosophers and Christian moralists has lately been directed to the necessity of adopting some means of limiting its prevalence.” The Times also charged that upperclass women were guilty of infanticide: “It is not only practiced by women who, having gone astray, are so anxious to conceal the result of their error as not to stop at murder, but women who are legally married, and move in respectable society, redden their souls and their hands with the blood of legitimate children, to escape the troubles of maternity and the labors of nurture and


66

Lives in the Law

training.”31 The growth of flourishing businesses that openly advertised abortifacient medicines fueled a sense that the incidence of abortion among middle- and upper-class women was rising in proportion to falling birth rates among native-born, white Protestant women.32 Concern over the vulnerability of children increased as the rate of abortions and the apparent power of women grew in the nineteenth century. Woman’s rights activists were frequently blamed for threats to the welfare of children, and the decision whether to have children at all. Letters to the editor in Philadelphia papers about the Vaughn case revealed that the connection between Vaughn’s situation and the practices of upper-class women was widely perceived. Fighting back against New York suffragists, for example, one outraged correspondent claimed that “we have the authority of Henry Ward Beecher and other divines, for believing that amongst the virtuous matrons of the virtuous city of New York, [infanticide] is of frequent occurrence and regarded as a very trifling offence; therefore . . . we need not be surprised if these ladies pass resolutions condemning the Philadelphia jury which regards so trifling an offence as the killing of an innocent babe, ‘murder in the first degree.’” Opponents translated “Hester Vaughnism” into an excuse to attack the middle-class women who defended Vaughn, charging them with the crime Vaughn had been convicted of.33 These attempts to deflect support for Vaughn by arguing that her case represented simply a more overt form of the abortion (and associated selfish individualism) practiced by wealthier women, were met head-on by suffragists. In a column in the Revolution, Parker Pillsbury claimed that agitation for the pardon and release of Hester Vaughn was expressly designed to “unfold that very evil [infanticide] in all its horrible enormity and extent.”34 Suffragists shared with Judge Ludlow the sense that infanticide was a growing and urgent problem in American cities. They embraced the claim that abortion and infanticide were identical morally, if not criminally. To hammer home the connection, they shot back at Philadelphia, insisting that “infanticide is as fashionable among the virtuous matrons of Philadelphia as those of [New York].”35 Pillsbury’s speech on behalf of Vaughn at the Cooper Institute was directed at precisely this issue, arguing that to hold Vaughn guilty was to apply a double standard. It would be unfair, Pillsbury argued, to hold a working woman accountable for a practice indulged in with impunity by “fashionable matrons” and their husbands. Pillsbury also



67

claimed that the press itself was as guilty as any patron of the famous abortionist known as “Madame Restell”: “Did it never occur to you that in large numbers of these newspapers—religious papers not excluded—professional infanticide is advertised in a disgusting form? (Applause.) Have your not in your own city professional murderers? How many newspapers have you too pure to advertise these murders from week to week? (A voice, ‘None.’).”36 “The loathsome operators of the abomination,” claimed suffragists, were the real murderers.37 But the legal system punished only innocent young women who had no control over their actions and were too poor to provide shelter and care for their babes. The Revolution reported a case in January 1869 in which a newborn froze to death after its mother gave birth in a shed near Bethlehem, Pennsylvania. “Why not try her for murder?” the editor queried rhetorically, implying that Hester Vaughn, like the woman in the story, was a victim of circumstances outside her control.38 As the historian Linda Gordon has pointed out, nineteenth-century woman’s rights activists did not support abortion, focusing instead on abstinence and husbands’ responsibility for respecting their wives’ desires for “Voluntary Motherhood.” In the nineteenth century, liberal suffragists accepted broadly what most twentieth- and twentyfirst-century feminists deny categorically: that is, they equated abortion with infanticide. As Gordon put it, motherhood in nineteenth-century activism was both central to respect for women, and the site of male sexual tyranny.39 To embrace abortion would be to countenance sexual licentiousness, woman’s rights activists concluded, instead of attacking the problem where it began, in the unlimited access of husbands to their wives’ bodies. Exemption from motherhood was not a viable alternative in nineteenth-century suffragism, for it would mean the abandonment of the source of women’s unique ability to rise above individual identity, and all the selfishness that such individualism implied. According to one report of the Hester Vaughn rally, Elizabeth Cady Stanton’s announcement that the Revolution accepted no advertisements for abortifacients or other forms of birth control was greeted with applause.40 Woman’s rights activists also welcomed the opportunity to recast Hester Vaughn in their own image. As they warmed to the task of creating a womanly portrait of Vaughn to counter the unfeeling, manmade law, activists plunged into a narrative of character that chal-


Lives in the Law

68

lenged the miserable story of her trial. In the retelling, Vaughn acquired a delicacy and refinement that were hidden from the harsh and hardened perception of lawyers and judges. Her qualities, essentially those of every woman, were obvious to those activists who claimed that they shared her womanly virtues. In the process of discovering the “true” Hester Vaughn, the debate swirled away from the discussion of Vaughn and infanticide among the working poor to the concerns of middle-class women. Elizabeth Cady Stanton’s speeches, editorials, and letters on Vaughn’s behalf created an identity for Vaughn that had eluded a callous legal system. Reporting on a visit to Moyamensing Prison, Stanton said, “On seeing the poor girl, . . . we felt more than ever convinced of her innocence.” Her description of Vaughn was of a middle-class girl manqué, a woman who (in a just society) would not have fallen into economic or social distress: “She has a quiet, self-possessed manner, and is gentle in her movements and speech. She can read and write, and is very intelligent for one of her class,” wrote Stanton. By sentencing Vaughn to die a felon’s death, Stanton implied, the court had fundamentally mistaken her character. The real quality of Hester Vaughn was revealed instantly to a sympathetic woman by her manner even in the confinement of a prison, and by the cultural and material trappings of her life. “[Hester] showed us several of Leigh Richmond’s stories that she had been reading, and exhibited undergarments that she had made that were very neatly embroidered. Everything about her indicates a taste for order, cleanliness, and beauty.”41 The order and beauty that Hester had brought to her cell in the Moyamensing Prison, suffragists implied, belied the claim that chaos and violence marked her earlier existence. No woman of such impeccable orderliness could have been the monster of violence and abandon that her arrest, trial, and conviction determined she was. Instead, the legal system and the law itself must be to blame. Sex and the Legal System A delegation of activists led by Stanton met with Pennsylvania governor John White Geary to demand Vaughn’s pardon. They argued that not only was a class-based double standard at work in the fixation of blame for pregnancy and illegitimate birth among poor women, but that a legal double standard lay at the root of Vaughn’s, and by extension all women’s, treatment by the legal system. According to Stanton’s



69

report of the meeting, the governor himself conceded that “justice would never be done in cases of Infanticide, until women were in the jury-box.”42 Because of the gendered nature of criminal definitions and criminal punishment meted out to women, charged Stanton, the entire system was corrupt. Stanton condemned the “holocaust of women and children we offer annually to the barbarous customs of our present type of civilization, to the unjust laws that make crimes for women that are not crimes for men!”43 Over and over, woman’s rights activists pointed to the cases of General Cole, Daniel Sickles, and Daniel McFarland, each of whom had killed his wife’s lover and had been acquitted in highly publicized jury trials. Killings such as these, argued suffragists, were the true murders, while the death of newborn infants in ambiguous circumstances provided a legal system that was inordinately sympathetic to the vengeance of men with an excuse for punishing helpless women. An editorial in defense of Vaughn in the New York World, for example, charged, “It is an insult to the intelligence of America to say that the good order of society and the sanctity of human life require a felon’s grave to be dug for and filled by this unhappy girl in the land which had made Daniel E. Sickles a hero and a statesman.”44 A letter to the editor in the Revolution entitled “General Cole and Hester Vaughn” hammered home the connection: “Is the man to be forgiven who, through a mistaken idea of revenging the dishonor of his family, shoots another, and no sympathy be extended to a woman who kills a child, the fruit of an outrage perpetrated upon her—a perpetual reminder of her misery and shame? . . . Let not the jury that acquitted Gen. Cole dare to answer in the affirmative.”45 Here was another ground of complaint: juries, judges, and lawyers were all men. By definition, argued suffragists, those who controlled the legal system were incapable of understanding the tribulations of women. The Revolution complained that women whose lives were dominated by men were nonetheless powerless to protect themselves against a legal system that punished them for crimes committed by men against them. As one letter to the editor put it, how could Hester Vaughn in justice be punished for the death of a baby that was the “result of an outrage upon her”? The fact of rape, according to liberal suffragists, and its lack of punishment were the key to true moral responsibility in Hester Vaughn’s case. Equally important, they claimed, no man could understand the fear of rape and the burdens of pregnancy. The insanity brought on by the pres-


70

Lives in the Law

sure of such burdens was special, confined to women, and incomprehensible to men. Because of this dual vulnerability based on gender, argued the liberal press, the legal system should recognize the fundamental divide between men and women in competence to judge “crimes” committed by women. As suffragists saw it, if an all-male jury could acquit General Cole of the deliberate killing of his wife’s lover on a theory that sexual betrayal rendered him temporarily insane with jealousy, then women should in equity have the same power to determine the mental effects of pregnancy on a desperate woman. The claim that women should be empowered to make such determinations was a response to the “unwritten law” that procured the acquittal of wronged and vengeful husbands in the 1860s.46 According to Parker Pillsbury, “man’s inhumanity to woman in general, to [Hester Vaughn] in particular, has pointed, poisoned every arrow of her affliction.”47 As one editor put it in the Revolution: “Men can feel for the wrongs of a man, but only women can feel for woman; let her be tried by a jury of her peers, wives and mothers, women who, while knowing the depth and purity of maternal love, know also of the agency that almost robs them of reason when ushering a new life into the world; women who pray for death rather than dishonor, feeling through sympathy the bitterness of shame. Let women defend woman, let them be her judge, then and only then can justice be done, that sublimest justice that is tempered with charity.” The conviction of a lone and desperate woman like Hester Vaughn fed into longstanding complaints made by woman’s rights advocates that the legal system demonized the women it presumed to punish.48 As one activist put her complaint, “The only case in which [a woman’s] individuality is acknowledged by the law, is in her punishment.”49 If men like Daniel Sickles and other jealous husbands were privileged by an unwritten law that allowed jurors to sympathize with wounded pride and sexual humiliation, then woman’s rights women wanted parallel doctrines and the power to implement them. Stanton especially called for the training of women in law, as the only valid means of ensuring justice for women. Professional women “of wealth,” Stanton argued, would provide the real protection that women like Hester Vaughn needed. The Vaughn case, Stanton insisted, “carries with it a lesson for the serious thought of every woman, as it shows the importance that women of wealth, education and leisure study the laws under which they live, that they may defend the unfortunate of



71

their sex in our courts of justice, and, as able advocates, avail themselves of every advantage the law gives for acquittal.”50 Far from defending her with the zealousness she deserved, Vaughn’s lawyer, according to her defenders in the woman’s press, had taken her last thirty dollars and had then given her only the most lackluster defense. Ernestine Rose put it succinctly: “Woman is being constantly told that man is her natural protector. Was the man that called himself a lawyer, who took the last few cents she had in her purse but failed to consult with her and failed to advocate her cause her natural protector?” The implication, of course, was that no woman lawyer would have left her client so bereft and friendless.51 And the very essence of the jury trial, the concept of trial by equals, demanded that women serve on juries in cases involving “the mothers of the race.” Motherhood defined women’s legal as well as personal lives, the Revolution maintained, and should be understood as a source of women’s separate legal identity and separate legal power. The sensibilities of men and women, and their relative positions of power, were so very different, that men could not presume to understand the motives or actions of women. “If nobles cannot judge peasants, or peasants nobles, how can man judge woman?” queried Stanton, overlooking her own call for upper-class women to represent “the unfortunate of their sex” in the same issue of the Revolution. Gender, rather than class, was the central determinant of character, Stanton implied, and thus of legal responsibility. Without women as both the source and administration of law for women, injustice was not only predictable, it was inevitable.52 Activism versus Actual Results Stanton and other suffragists made much of the Vaughn case. But its appeal was bounded by the circumstances of her case and the nature of her crime. As a strategy, the use of Hester Vaughn was both brilliant and misguided. No one, apparently, really wanted to hang Hester Vaughn—thus it was easy to argue that the sentence should not be carried out. But her appeal as a sympathetic victim was also limited. Like other women accused of infanticide in the nineteenth century, Vaughn was simultaneously pitied and despised. And she had already been convicted. A new trial was out of the question. Her quiet disappearance, as Governor Geary hinted to the delegation of New York activists that visited him on Vaughn’s behalf, was the only practical


72

Lives in the Law

resolution of the quandary that her presence in the Pennsylvania prison system created. By the end of December, the Vaughn case quietly disappeared from the pages of the woman’s rights press, but not because suffragists agreed with the governor. Nor did the Working Women’s Association, which had taken up her defense, ever again find such an appealing issue, or raise working women’s legal consciousness in any broad-ranging way. Arguably, the backlash from the association’s advocacy for Vaughn was more powerful than the short-lived and qualified sympathy it generated. In part, activists laid themselves open to the criticism, at least insofar as they based their appeal on rape and insanity. If Vaughn was not really a rape victim; if her employer had not ravished and then betrayed her; and if Vaughn was not afflicted by puerperal mania and blindness when her newborn died, then her status as victim was called into question. Without the claim that there had been a fundamental factual mistake in Vaughn’s conviction, the force of the suffragists’ arguments was diluted, despite their claims for a double standard in society and a double standard in law. As one critical report noted in December, the “woman who is supposed to have provided a final settlement for her child by driving in the soft part of its head upon the brain” was painted by suffragists with “all the glowing colors of morbid sympathy.” The evident violence of the case haunted suffragists’ efforts to reconstruct Vaughn as a gentle, cultured victim.53 And it was the “facts” that opened activists to the derision of the mainstream press, especially the popular weekly The Nation. By midDecember, opponents charged Stanton, Anthony, and their allies with outright falsehood. “Nearly all the picturesque part of the New York narrative were pure fiction,” concocted to serve the selfish interests of the “wild and reckless” women of the woman’s rights movement, charged Nation editor E. L. Godkin. But “the liar, no matter what the cause he serves, holds only the ground he camps on.” The exposure of the “truth,” according to the Nation, undercut not only the power of woman’s rights arguments in the debate over the Vaughn case, but also of suffragism altogether. The response was fast and furious.54 Horace Greeley’s influential New York Tribune, cautiously supportive at first, turned quickly into an opponent. The paper labeled the activities of New York suffragists “interference” in the orderly administration of justice and mercy, which had been “plainly and pointedly rebuked, as it deserved.” For as the Tribune claimed, Vaughn had



73

“frankly confessed her guilt” in August, only a week after sentencing, months before the suffragists claimed she had steadfastly maintained her innocence.55 The Vaughn case, as Greeley (pompously, if accurately) predicted it would, became a cause célèbre in New York as a vehicle for polemic about abstract principles, rather than about Vaughn’s actual experience. The New York Times accused suffragists of manipulating and misrepresenting “virtually every circumstance” of Vaughn’s actual conduct and her treatment at the hands of the legal system. Vaughn, argued mainstream editors, had been created by suffragists for their own misguided ends. The reality was far more sordid and revealed that woman’s rights activists were themselves perpetrators of a double standard. They sacrificed truth when it suited their purposes, charged Godkin. In the process, they also denied the moral responsibility of a violent woman, “sniveling” and “ranting” about the suffering of Hester Vaughn, but never honestly addressing the real “crime of infanticide.” Men, not women, argued Greenley and Godkin, had acted according to principle and objective fact.56 The reality, of course, is what is unrecoverable, perhaps unknowable at the time. And certainly both sides used Hester Vaughn as a talking point, a label, rather than as a genuine subject. Vaughn’s victimhood or criminal agency was translated into the moral accountability of all women, and the symbol of the worth of woman’s rights activism. The ambiguities of her case remain unresolved—was her pregnancy the result of a consensual liaison, or rape? Did her newborn baby die after its head was deliberately and repeatedly smashed against a bedpost, or did Vaughn faint, as she later claimed, and “overlie” the baby? How many days after its birth did the child die? Did Vaughn receive a fair trial, or was her case bungled by a lazy lawyer and a corrupt criminal justice system inherently biased against women? Did Vaughn “freely confess her guilt” to the governor of Pennsylvania the week after her conviction, as reported later in the New York Tribune, or did she “steadfastly maintain her innocence,” as suffragists claimed? The answers to these questions were abstracted away from the particulars of the case, as the debate careened away from Vaughn, from Philadelphia, and from poor women. New York woman’s rights activists “made” the Vaughn case; they spun the story in ways that bear the stamp of liberal suffragism in the late 1860s, especially claim that a double standard pervaded all of society, a standard based in the lack of


74

Lives in the Law

women’s political power, but with ramifications for all aspects of women’s lives. Woman’s rights activists, who had attended (and been outraged by) the sensational trials of men who were acquitted of violence because of their finely tuned sense of marital virtue and husbandly honor, wanted their own “unwritten law,” their own access to legal power through emotional appeal. But their choice of cause was compromised by fear of women’s violence and Vaughn’s own strategic behavior, which eventually undercut the credibility of the extravagant claims suffragists made on her behalf. For all their claim to instant sympathy and identity between them, in the end Vaughn eluded her champions, eliding their embrace even at the moment of her apparent triumph. Vaughn herself, her thoughts and feelings, have remained mysterious and unspoken, despite the intense flurry of attention her case provoked. The trial record was destroyed in the 1960s by the city of Philadelphia. Her lawyer left no papers. Nor did Vaughn herself publicize her tale. The debate over whether she was a calculating murderer or a guileless victim took place almost without her voice. Yet the undeniable presence of Vaughn was both central to the suffragists’ appeal, and their essential problem. Vaughn’s only official statements in the entire process formed the basis of the undoing of the suffragists’ claims on her behalf. In early December, at the height of the campaign to free her, and apparently in response to an overture by authorities, Vaughn made two affidavits. In the first, she denied having claimed that her employer was the father of her child; she also denied that she concealed the identity of the man to protect the woman he later married: “He was not a gentleman at all, but a laboring man; I do not know if he is married; I have not heard since I have been here that he was married; I never saw or heard of him after he did the act; I know nothing about him at all.”57 Vaughn also swore that she “was entirely satisfied with [my lawyer’s] efforts in my behalf. . . . But he ought to have visited me in prison before the trial, I think, as the counsel for a woman in another cell visited her every day.”58 The next day, according to the Tribune, and well before a series of stories and editorials appeared in the Revolution implying that Vaughn still suffered under threat of execution, Governor Geary “informed” Vaughn that “he will never enforce the sentence of the Court.” The inescapable implication was that suffragists themselves had ignored the unpleasant facts that rendered their “Hester Vaughnism” untenable, attempting to excuse the inexcusable by creating a tissue of lies about Vaughn, about judicial process, about criminal punishment.59



75

The difficulty, of course, was that Vaughn’s affidavits, and especially her release, were the solution to her own incarceration, even as they simultaneously undermined the claims of her supporters. In December, as the delegation from New York visited Harrisburg to plead with him for Vaughn’s pardon, Governor Geary had referred obliquely to the tension between a happy resolution for Vaughn and the blazing publicity that New York suffragists insisted was the most efficacious strategy. As the governor and prison officials assured Stanton, “the women of Pennsylvania had already quietly moved in this matter.”60 The effectiveness of such discreet action, the warden of Moyamensing Prison warned, might be undermined by the very public sympathy and Vaughn rallies in New York. But Stanton charged ahead, assuring herself and her readers that no actions in a “sister state could interfere with the proposed justice and mercy to a helpless criminal.”61 Their enthusiasm and their conviction that their support could only help a friendless prisoner led suffragists to make claims of “fact” that evaporated under scrutiny or under pressure on Vaughn. The final unraveling of the New York suffragists’ campaign occurred in early 1869, when they waited on a train platform for Vaughn, whom they learned had been pardoned and freed. They brought with them some three hundred dollars that had been collected for Vaughn during the height of the campaign. But Vaughn herself never came, although the delegation waited on the platform until midnight. She had gone home to England instead. Her pardon had been conditioned on her return to England. Perhaps she, too, wanted only to leave, to go home to England, to her father and sister who did not know of her pregnancy, or incarceration, or any of the other nightmarish aspects of her American experience. Several weeks later, a letter from Vaughn addressed to a Philadelphia doctor was published in the New York World: “I would be obliged to you if you could get that money from New York for me,” wrote Vaughn, “as what I had when I came away is all gone.”62 Conclusion “Hester Vaughnism” tainted the woman’s rights movement with an aura of baby killing and irresponsibility. The deconstruction of the Revolution’s story made the deployment of similar claims more difficult in suffrage activism—violence, abortion, the legal system, all had proven costly. Historians who read only the suffrage press have assumed that


Lives in the Law

76

the Vaughn campaign revealed the “injustices [she] suffered” and marked a significant success for the Working Woman’s Association and the suffragists who led it.63 Attention to a wider spectrum of public discussion, however, reveals that Hester Vaughnism also created a backlash, explaining the abrupt cessation of stories and editorials on Vaughn in early 1869. The cost of agitation on Vaughn’s behalf also helps explain the narrowing of suffragists’ causes in the 1870s, as they absorbed the lessons of Hester Vaughnism. And although there is no record of a conscious decision by Elizabeth Cady Stanton, Susan B. Anthony, or other New York activists to abandon such controversial topics, their own record of their successes does not include Hester Vaughn. There is no mention of the Vaughn case, or the campaign to save her, in the multivolume History of Woman Suffrage. The narrowing of woman’s rights activism and rhetoric after the 1860s has long been noted by historians. Attention to the treatment of Vaughn and her champions in the mainstream press reveals that woman’s rights activists paid a price for their choice of infanticide as a cause and Hester Vaughn as a heroine. The tension between the principles invoked by liberal suffragists in their advocacy on Hester Vaughn’s behalf, and the gritty legal “facts” of Vaughn’s case, silenced debate for suffragists. The victim in the case, no tawdry lover as in sensational “unwritten law” trials, but a tiny and defenseless newborn, undercut the viability of a widespread appeal based on the case. Instead, the prospect of violence by women undermined sympathy for women’s independence and activism. And suffragists’ strategic manipulation of the story eventually sapped their own credibility, revealing them, according to their opponents, as untrustworthy and scheming meddlers in legal process. The silence that envelops infanticide testifies to the virulence of the backlash, as well as the painful inadequacy of woman’s rights rhetoric. NOTES I would like to thank Austin Sarat, Martha Umphrey, and the members of the Program on Law, Jurisprudence, and Social Thought at Amherst College, the Ad Hoc Workshop of the University of Pennsylvania Law School, the Brown Bag Lunch Series in Women’s History at the University of Pennsylvania History Department, the University of Virginia Legal History Workshop, the Center for Human Values at Princeton University, and the Legal History Colloquium at New York University Law School. I also thank Cornelia Hughes



77

Dayton, Bridget Crawford, Hendrik Hartog, Heide Heller, Kathleen Brown, Drew Faust, and Matthew Sommer. 1. Commonwealth v. Hester Vaughn, No. 298, Records of the Court of Common Pleas, Docket Book, 1868, 330–31. Infanticide prosecutions in Pennsylvania have not been studied systematically. Thus although we know that ninetytwo prosecutions were initiated between 1682 and 1800, G. S. Rowe, “Infanticide, Its Judicial Resolution, and Criminal Code Revision in Early Pennsylvania,” Proceedings of the American Philosophical Society 135 (1991): 207, there is no reliable information on the number of reported or prosecuted infanticides in Pennsylvania since 1800. 2. Dr. Shapleigh, the coroner for the City of Philadelphia, testified that the infant had been killed by a blunt instrument, which had fractured the skull in several places (Philadelphia Inquirer, July 1, 1868). 3. According to one report in the suffrage press, Judge Ludlow remained adamant even after Vaughn’s cause had been taken up by woman’s rights activists. In response to a challenge to the harshness of the death penalty in such a case, Ludlow retorted, “It is for the establishment of a principle, ma’am” (Revolution, December 10, 1868, 358). On the use of infanticide prosecutions for purposes of deterrence, see Cornelia Hughes Dayton, “Narratives of Infanticide: Changing Configurations of Gender, Race, and Class in Eighteenth-Century New England,” paper presented to the Annual Meeting of the Law and Society Association, Phoenix, 1994. 4. Ellen Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women’s Movement in America, 1848–1869 (Ithaca, N.Y.: Cornell University Press, 1978), 146. See also William Leach, True Love and Perfect Union: The Feminist Reform of Sex and Society (Middletown, Conn.: Wesleyan University Press, 1980). 5. A story illustrates the ongoing difficulty of treating Vaughn as anything other than a victim. As I have worked on this project, the Biddle Law Library at Penn began to receive calls from a lawyer-filmmaker interested in making a popular movie about the case. After he was referred to me, we had several conversations about Vaughn, and I sent him a draft of this paper. He called me after reading the paper, deeply distressed at what I had found in the records and the popular treatment of Vaughn outside the woman’s rights press. “If she’s not a victim,” he said, “there’s no point in making the film.” Telephone conversation with Daniel Zipser, Los Angeles, November 19, 1998. 6. Lydia Maria Child, Fact and Fiction: A Collection of Stories (New York, 1849), 146–49; Daniel A. Cohen, Pillars of Salt, Monuments of Grace: New England Crime Literature and the Origins of American Popular Culture (New York: Oxford University Press, 1993), 147–49. 7. On the ubiquity of infanticide in contemporary America, see Michelle Oberman, “Mothers Who Kill: Coming to Terms with Modern American Infanticide,” American Criminal Law Review 34 (fall 1996): 4. For the language of irresponsibility and women’s sexuality, see New York Times, December 1, 1868, 4. 8. Arguments about mental distress and a double standard in law still characterize scholarly and popular studies of infanticide. See, e.g., Judith A. Osborne, “The Crime of Infanticide: Throwing Out the Baby with the Bathwa-


78

Lives in the Law

ter,” Canadian Journal of Family Law 6 (1987): 47; Keith Wrightson, “Infanticide in European History,” Criminal Justice History 3 (1982): 1; Phillip J. Resnick, “Murder of the Newborn: A Psychiatric Review of Neonaticide,” American Journal of Psychiatry 126 (1970): 55; Paul Ramsey, introduction to Infanticide and the Handicapped Newborn, ed. Dennis J. Horan and Melinda Delahoyde (Provo: Brigham Young University Press, 1982), vii. 9. Revolution, August 6, 1868, 74. 10. Revolution, October 1, 1868, 198. 11. Revolution, November 2, 1868. 12. Throughout Europe and in England in the eighteenth and nineteenth centuries, one historian has concluded, “It seems to have been taken for granted that the upper classes were entitled to the favors of pretty girls of the lower classes and that fornication was looked upon as an inevitable aspect of lower class life.” William L. Langer, “Infanticide: A Historical Survey,” History of Childhood Quarterly 1 (1974): 357. But see Joan Jacobs Blumberg, “‘Ruined’ Girls: Changing Community Responses to Illegitimacy in Upstate New York, 1890–1920,” Journal of Social History 18, no. 2 (1984): 247. According to one source, more than 90 percent of all unmarried mothers in England in 1871 were (or, more likely, had been) domestic servants: “in many instances the fathers of their children are their masters, or their masters’ sons, or their masters’ relatives, or their masters’ visitors.” Langer, “Infanticide,” quoting Mr. Cooper, secretary of the Society for the Rescue of Young Women and Children. 13. Revolution, November 19, 1868, 312. 14. On the critique of private authority, see Elizabeth B. Clark, “Self-Ownership and the Political Theory of Elizabeth Cady Stanton,” Connecticut Law Review 21 (summer 1989): 937–39; Pamela Haag, Consent: Sexual Rights and the Transformation of American Liberalism (Ithaca, N.Y.: Cornell University Press, 1999), 42–43. 15. New York Tribune, November 24, 1868, 5. 16. New York World, December 1, 1868, 1. 17. Ibid. 18. New York World, December 2, 1868, 1. 19. Ibid. 20. Ibid. 21. Randal C. Archibold, “Dignity for the Tiniest Victims: Paramedics Arrange Funerals for Abandoned Infants,” New York Times, December 7, 1999, B1. Even though the article speaks in terms of abandonment, it describes eleven cases of infanticide in one county on Long Island in a single year. These infants were found in recycling bins, shallow roadside graves, and so on. It is safe to assume that a large proportion of such “abandoned” newborns are never discovered. 22. See, for example, Steven Pinker, “Why They Kill Their Newborns,” New York Times, November 2, 1997, 52; Christine Blatchford, “Getting Away with Murder,” Toronto Sun, March 15, 1996, 5; Blaine Harden, “Tale of 8 Infant Deaths: A Long-Standing Mystery; New Proble, Old Doubts in Infant Deaths,” Washington Post, April 3, 1998. 23. For a discussion of widespread yet rarely reported or publicized cases



79

of infanticide, see, e.g., Oberman, “Mothers Who Kill,” 4 (Amy Grossberg and Susan Smith stories). 24. Roger Lane, Violent Death in the City: Suicide, Accident, and Murder in Nineteenth-Century Philadelphia (Cambridge: Harvard University Press, 1979). See also Sharon Ann Burnston, “Babies in the Well: An Underground Insight into Deviant Behavior in Eighteenth-Century Philadelphia,” Pennsylvania Magazine of History and Biography 106 (1982): 151–86. Infanticide has been practiced in human societies on every continent and at every level of social and industrial development. See, for example, Kathryn L. Moseley, “The History of Infanticide in Western Society,” Issues in Law and Medicine 1, no. 5 (1986): 345; Simon Mays, “Infanticide in Roman Britain,” Antiquity 67 (December 1993): 883; W. L. Langer, “Infanticide: A Historical Survey,” History of Childhood Quarterly 1 (1974): 353; S. C. M. Scrimshaw, “Infanticide in Human Populations: Societal and Individual Concerns,” in Infanticide, ed. Glenn Hausfater and Sarah B. Hardy (New York: Aldine, 1984), 439. For treatments of infanticide in early America, see N. E. H. Hull and Peter Hoffer, Murdering Mothers: Infanticide in England and New England, 1558–1803 (New York: New York University Press, 1984); Dayton, “Narratives of Infanticide. 25. Philadelphia Inquirer, July 1, 1868, 4. 26. On the acquittal rate for women accused on infanticide, see Constance B. Backhouse, “Desperate Women and Compassionate Courts: Infanticide in Nineteenth-Century Canada,” University of Toronto Law Journal 34 (1984): 448. The difficulty of proving infanticide underlies an English statute enacted in 1623, which provided that any woman found to have concealed the death of an illegitimate child could be hanged for murder. Laws Respecting Women (London, 1777), 307. An identical law was passed by the Pennsylvania legislature in 1718. By the end of the eighteenth century, however, the law required proof of a live birth for an infanticide conviction. An Act Amending the Penal Laws of this State, September 15, 1786, and reenacted April 5, 1790. 27. On the antiabortion campaign in the mid–nineteenth century, see Carroll Smith-Rosenberg, Disorderly Conduct: Visions of Gender in Victorian America (New York : Knopf, 1985), chap. 10; James C. Mohr, Abortion in America: The Origins and Evolution of National Policy, 1800–1900 (New York: Oxford University Press, 1978), 147–225. 28. Ruth Ellen Homrighaus, “Wolves in Women’s Clothing: Baby-Farming and the British Medical Journal, 1860–1872,” typescript, 3; Edwin Lankester, “Third Annual Report of the Coroner for Central Middlesex,” British Medical Journal, April 28, 1866, cited in Homrighaus, “Wolves in Women’s Clothing,” 29 n. 18; Ann R. Higginbotham, “‘Sin of the Age’: Infanticide and Illegitimacy in Victorian London,” Victorian Studies 32, no. 3 (1989): 319. 29. Revolution, December 10, 1868, 358. 30. New York Times, December 1, 1868, 4. 31. Ibid. 32. For a discussion of the reasons behind increased rates of abortion beginning in the 1840s, and the complementary growth of a commercial abortion industry, see Mohr, “The Great Upsurge of Abortion, 1840–1880,” chap. 3 in Abortion in America.


80

Lives in the Law

33. Evening Star, December 2, 1868, 3. 34. Revolution, December 10, 1868, 361. 35. Evening Star, December 3, 1868, 4. See also ibid., December 5, 1868, 1: “Could I be put upon a Court stand, and compelled by law to state what little I know, I would produce an ‘earthquake’ in Philadelphia. . . . Thousands yearly are thus infanticided in fashionable life in Philadelphia. I lie not! [signed] M.D.” 36. New York World, December 2, 1868, 1. 37. Revolution, December 10, 1868, 361. 38. Revolution, January 14, 1869, 21. 39. Linda Gordon, “Why Nineteenth-Century Feminists Did Not Support ‘Birth Control’ and Twentieth-Century Feminists Do: Feminism, Reproduction, and the Family,” in Rethinking the Family: Some Feminist Questions, ed. Barrie Thorne and Marilyn Yalom (New York: Longman, 1982), 45–46. 40. New York World, December 2, 1868, 1. As Linda Gordon pointed out, nineteenth-century suffragists were caught in a quandary. They were committed both to individual fulfillment and respect for women, and to opposition to birth control. Only in the twentieth century, argued Gordon, did feminists “change their minds, [and then they] took the initiative in finding the technology they needed” (“Nineteenth-Century Feminists,” 46). Gordon saw a similar quandary in twentieth-century feminists’ approach to abortion and birth control, as the role of the family and motherhood fell out of view, and individualism assumed much greater prominence. “The problem is to develop a feminist program and philosophy that defends individual rights and also builds constructive bonds between individuals” (51). 41. Revolution, December 10, 1868, 353, 354. See also New York Tribune, December 11, 1868, 5. 42. Revolution, December 10, 1868, 354. 43. Revolution, November 19, 1868, 312. 44. Reprinted in Philadelphia Evening Star, December 2, 1868, 1. 45. Revolution, December 31, 1868, 406. 46. On these cases, see Hendrik Hartog, “The Unwritten Law and Husband’s Rights,” Journal of American History 84 (1997): 67–96. Hartog’s argument that such cases represented a reassertion of husbands’ rights highlights the parallel that woman’s rights activists saw to the Hester Vaughn case. See also Melissa Ganz, “Wicked Women and Veiled Ladies: Gendered Narratives of the McFarland-Richardson Trial,” Yale Journal of Law and Feminism 9 (1997): 255–303; Norma Basch, Framing American Divorce: From the Revolutionary Generation to the Victorians (Berkeley: University of California Press, 1999), 68ff.; Robert M. Ireland, “The Libertine Must Die: Sexual Dishonor and the Unwritten Law in the Nineteenth-Century United States,” Journal of Social History 23 (fall 1989): 27–44. 47. Revolution, December 10, 1868, 361. 48. Revolution, December 31, 1868, 406. Linda Kerber’s work on women’s service on juries, “‘Woman is the Center of Home and Family Life’: Gwendolyn Hoyt and Jury Service in the Twentieth Century,” also makes this point. See No



81

Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998), 124–220. 49. Maria Giddings, “Justice to Woman: Address of the Woman’s Rights Convention, to the Legislature,” Una, April 1854, 250, quoted in Nancy Isenberg, Sex and Citizenship in Antebellum America (Chapel Hill: University of North Carolina Press, 1998), 131. 50. Revolution, December 10, 1868, 360. For earlier critiques of the justice meted out to women in a male-run legal system, see the speech of Wendell Phillips condemning the ridicule of Daniel Sickles’s wife in the courts and press during Sickles’s trial. Proceedings of the Ninth National Woman’s Rights Convention held in New York City, May 12, 1859 (Boston, 1860), 13; Isenberg, Sex and Citizenship, 152. 51. New York World, December 2, 1868, 1. 52. Revolution, December 10, 1868, 360. 53. New York Times, reprinted in Revolution, December 10, 1868, 361. 54. Nation, December 10, 1868, 470. 55. New York Tribune, December 8, 1868, 2. 56. New York Times, reprinted in Revolution, December 10, 1868, 361. 57. New York Tribune, December 8, 1868, 2. 58. Ibid. 59. Ibid. 60. Revolution, December 10, 1868, 354. 61. Ibid. 62. New York World, August 5, 1869, 5. 63. See, for example, Lana Rakow and Cheris Kramarae, eds., The Revolution in Words: Righting Women, 1868–1871 (New York: Routledge, 1990), 73.

RT9239_C00.qxd

6/25/04

12:51 PM

Page ii


Dependency by Law: Welfare and Identity in the Lives of Poor Women Frank Munger

The End of Fate My understanding of welfare law is taking shape through my research on the moral identity of poor women. The central principle of welfare— deservingness—is at stake in the identities that we create for welfare recipients. Following rhetorical battles about welfare waged by constructing identities for poor women, victories are reflected in the language of new welfare law. In contrast to the public rhetorical construction of moral identity of the poor, my research examines identity and welfare law in the lived experiences of poor women. In particular, I attempt to understand the embedding of deservingness in perceptions and treatment of the poor and in the concept that poor women have of themselves. My research springs from concerns about welfare reforms enacted by Congress in 1996 that swept away a seventy-year-old program of poverty relief and replaced it with a work-oriented program that would “end poverty as we know it.” A new realism about the lives of welfare recipients drives these reforms.1 Politicians across the spectrum of mainstream parties have declined to challenge the new realism’s first principle—personal responsibility must be the first goal of welfare policy.2 A large literature suggesting that poverty and need for welfare are the result of background and social circumstances has been shelved.3 Public debate has assumed that poverty will no longer be excused by fate, and, indeed, few reformers have been willing to acknowledge that 83


84

Lives in the Law

fate—disadvantages of social origin and institutional structure—plays a predominant role in their understanding of the need for welfare. Rather the new realism claims persistent poverty arises from a perverse system of governmental handouts that has brought about a failure of personal responsibility on the part of the poor,4 notwithstanding historical and contemporary research suggesting otherwise.5 It has mattered little that the new realism is not new, and in fact returns to the oldest themes of poor relief in our society—the moral deservingness of the poor. “Coddling the poor” because of their fate as poor has always been denounced. The new realism provides images of welfare recipients who lack the will to leave welfare in order to support themselves and their families, and the imagery has shaped both the politics of welfare reform and the laws that determine welfare policies. Welfare reformers draw on such images to persuade us that poor mothers rely unnecessarily and undeservingly on welfare because they are dependent and irresponsible. The new law assumes that mothers receiving welfare require sticks and carrots to micromanage their maturation into responsible, working adults.6 Neither the statistics of well-meaning researchers nor the journalism of the best reporters has been effective in displacing the stereotypes on which the new realism of personal responsibility in welfare law rests. Indeed, as Herbert Gans pointed out thirty years ago in an insightful critique of poverty scholarship and journalism, scholars and journalists often approach the subject of poverty with questions and answers informed by their own or their audience’s stereotypes.7 In reality, while the moral issues may seem clear, the moral lives of the women to whom these judgments apply are complex. Like the lives of those who judge them, the moral lives of the poor are a mixture of worthy aspirations, fallible judgment, and ordinary virtue. Contrary to the presumptions of many liberals, questions of moral responsibility and deservingness at the heart of our welfare policies concern values and decisions made by the poor, not only their material circumstances or the events that befall them. Contrary to the presumptions of many conservatives, questions about the values of the poor implicate the way in which understanding and meaning take shape in a social context, and they may not be understood merely by comparing the behavior of the poor to the behavior of the more comfortable classes. In this essay I describe my first attempts to explore and illuminate the moral identity of the poor. I have begun by studying the discourse


Dependency by Law

85

about moral identity that occurs in focus groups. My focus groups have been conducted in several contrasting settings. The first setting included members (and friends of members) of Project Dandelion, an organization founded by welfare recipients to help other recipients leave welfare. The second setting included women who are residents in the poorest and most isolated public housing in western New York, the Perry Housing project. These two settings bracket the experiences of women who have received welfare, the first group including women whose experiences were briefer and alternated with periods of greater affluence, while the second group included women who have received welfare for longer periods and whose poverty is much deeper. In a third setting I have attempted to tap a wider public discourse about poverty by conducting focus groups with women who have sought help from the local Private Industry Council (PIC) in making an employment transition. The local PIC, like PICs nationwide, previously administered the Department of Labor’s CETA and JTPA programs and continues to conduct employment training, placement, and counseling under government grants for persons from a wide range of backgrounds. PIC contracts with the county Department of Social Services to assist women who are required to meet welfare-to-work requirements. Below I describe and contrast conversations conducted with women who participated in focus groups in the latter two settings, women living in public housing in deep poverty and women from diverse backgrounds who shared only the experience of unemployment. My method for conducting these focus groups on moral discourse about the social citizenship of poor women has been to listen as women talk to each other about their lives and their opportunities. I report what I hear and my own responses to it. Later, I talk with each of the women at length about family, childhood, childbearing, welfare, work, hope, and other matters that are central to who they are and what they do in their lives. I have been helped to reach a clearer understanding by the participation of two co-interviewers, Carla Burke,8 an African-American mother on welfare, and Tamara Dent, a divorced middle-aged white woman who receives Supplemental Security Income for a severe learning disability. Carla Burke and Tamara Dent are leaders of Project Dandelion, and they and other members of Dandelion have been mentors and interpreters throughout this research. What I learn from these women may not only challenge the con-


Lives in the Law

86

ventional understandings of the moral identity of poor women on which welfare law is based, but may also help begin the process of building new theory for two purposes. First, as Herbert Gans has concluded, in order to help individuals leave poverty we must understand their aspirations and capacity to act on their aspirations. Second, in order to enact programs that can accomplish this goal, we must understand how moral identities are formed in public narratives of poverty and welfare. Identity is central to both sides of this inquiry. Individuals acquire consciousness of identity through interaction with others over a lifetime. Public narratives about welfare recipients and the poor, including those narratives embedded in enactment and administration of the law, capture one aspect of this experience, conveyed through the media but also by means of more proximate actions and conversations. By means of life stories told in focus groups and interviews I explore more fully the way moral identity is formed and the part in this process played by welfare law and public narratives of welfare. Stories We Tell and Laws We Create Enacting a law requires imagining the persons who are to be affected by the law and the circumstances in which the law is to play a part. While imaginative constructions giving meaning to consciousness of law can be subtle and complex, the discursive practices of welfare reformers lie at the opposite extreme. The welfare reforms of the 1990s were created in a public and politicized debate, and the law embodies politically contrived and simplified constructions of the poor and their circumstances.9 The stories constructed by politicians and reinforced by the media have had a decisive impact on policies for the poor. The stories link the generosity of the public with the needs of recipients. Because welfare recipients are said to be inclined toward dependency by past policies that allowed them to remain on welfare beyond the point of real need, the generosity they require is discipline. Recipients are assumed to be weak-willed and self-indulgent because they continue to seek welfare support, and it is assumed they would be better off as self-supporting workers. Welfare law is designed to force recipients to leave welfare for work and, through work, to become self-sufficient as other Americans are presumed to be.10 Under the federal reform known as the Tempo-


Dependency by Law

87

rary Assistance to Needy Families Block Grant, welfare recipients must begin work activity within two years and may not receive welfare for more than a total of five years.11 Responsibilities for caring for young children or other dependent relatives will not excuse the obligation to work, and opportunities for education beyond high school as an alternative to work are severely restricted. Not only does the law’s requirement that all recipients work reflect an assumption that seeking welfare is conclusive evidence of the lack of a work ethic, the law also assumes that recipients can be motivated and morally educated by very small, short-term changes in incentives—much as parental discipline imposes moral lessons on a child through constant supervision and sanctioning. Further, the law assumes that such moral deficits in financial responsibility are closely related to other forms of moral deficit, failure to marry, childbearing out of wedlock, dropping out of school, and a variety of other presumptive requirements for successful self-support. The reformers have required the states to impose behavioral discipline on welfare recipients that will alter each of these deficits. As a consequence of these presumptions about the causes of poverty, the level of moral supervision and control of welfare recipients imposed by welfare law is indisputably very high. Welfare law is closely related to the public’s perceptions of dependency. Receiving welfare benefits has historically been a marker for dependency. Only those who are involuntarily dependent are considered deserving beneficiaries, and many conditions are attached to weed out those who could work and do not deserve benefits. Receiving welfare, though formally restricted to the “deserving” poor, taints the character of recipients, though deserving and undeserving poor have always been difficult to distinguish.12 Further, dependency is a problematic category in our society. Historically, dependent persons, such as slaves and women, were denied the full benefits of citizenship.13 In contemporary society, those who are dependent are often not treated as social equals of those who are perceived as self-sufficient, a distinction that applies to persons with disabilities, the unemployed, and the poor. Recent welfare reforms reflect widespread revival of an argument about the relationship between welfare and dependency.14 Reformers have suggested that receiving welfare actually increases dependency. Poor women, they argue, have sought or remained on welfare when they did not truly need it, and they have become less capable of surviving without it. Welfare, it is claimed, is a moral hazard, and poor


88

Lives in the Law

women lack the moral judgment or will to resist the temptation to receive welfare when they might, through sufficient effort, become independent. Moreover, reformers have argued that receiving welfare has even weakened the identity of poor women as potentially self-sufficient persons. Children of recipients are also said to be affected by a mother’s dependence on welfare, and they are, therefore, more likely to choose welfare rather than work.15 The strict time limits, work requirements, and sanctions related to childbearing and parenting required by the 1996 federal welfare law are justified by these assumptions about the moral character of welfare recipients. Few groups have been subjected to laws that call for such complete surveillance and control. Yet we know little about the most critical aspects of the involvement of poor women with the new realist welfare policies, namely the way in which their decisions concerning work and family relate to the law. In truth, we know little about whether the welfare law that so powerfully projects an identity for welfare recipients plays any part at all in their everyday lives. Welfare law may become active in the lives of poor women in at least three ways.16 First, the meaning that the women themselves give the rights and obligations created by the law will shape the law’s most immediate effects on their lives. If the assumptions of legislators about the values and motives of welfare recipients are wrong, then the instrumental effects of the law may be very different from those anticipated. Indeed, life stories show that the law has had few of its intended effects on the trajectories of work and family of some women. While any failure of welfare law to achieve its objectives may be attributed in part to imperfections of administration,17 far more may be due to a profound misreading of the character of recipients, the dilemmas they face, and a consequent misunderstanding of the support they would most benefit from. Conversely, some of the “success” of the reforms arises because the women have been successful in adapting welfare to goals that better suit the circumstances and needs of their lives. Such adaptations often accommodate complexities not anticipated by the law. Second, the new welfare law may also become active in the lives of poor women indirectly but no less powerfully by influencing the actions of the organizations with which poor women must interact. Poor women interact with government agencies far more frequently than others who are affluent. Welfare administrators, as well as employers and private social service providers, are directly affected by


Dependency by Law

89

welfare laws, and, in turn, their actions affect poor women. More subtly, welfare reform has influenced the public’s perceptions of welfare recipients and might well influence incidental social interaction between poor women and others. Third, closely related to the law’s influence on the public’s perceptions of the poor, welfare reforms may influence a welfare recipient’s sense of herself. Law is a powerful cultural presence affecting meaning, actions, and expectations in everyday life. Morally freighted terms such as workfare, welfare recipient, and personal responsibility become building blocks of everyday awareness. These terms are built on an identity presumed by the law. What role do they play in the self-awareness of welfare recipients? Welfare laws, like civil rights laws, carry implications about identity and the distinctiveness of rights bearers, and they may, therefore, create a double bind for persons who take advantage of them.18 Because in the minds of many members of the public the beneficiaries of welfare laws have a particular demographic or social identity, all individuals in that demographic or social group may carry the stigma of welfare. Indeed, the law communicates such strong assumptions about the identity of welfare recipients that one of the law’s primary effects may be potentially to reinforce the social fault lines embedded in the reformer’s and the public’s stereotypes. I will explore the possibility that welfare law, far from being ameliorative, has destructive consequences, isolating welfare recipients from family, community, and other poor women. Among other important factors, race tacitly informs the stereotype of the welfare recipient.19 I will consider how welfare plays out differently in the lives of women whose identity falls on one side or the other of the fundamental fault line our society has constructed around race. Exploring the ways in which the law becomes active in the lives of poor women who receive welfare may provide important pieces in a larger puzzle. The life stories of poor women reveal their moral identities as well as the similarities and differences between the identity of the poor who receive welfare and the identity of those who do not receive welfare. In one sense, to interrogate this distinction is to pursue a red herring. Statistical, historical, and ethnographic studies have suggested that women who receive welfare are mostly members of the working poor.20 Individuals and families move on and off welfare, in and out of work, as well as in and out of poverty. The poverty line itself


Lives in the Law

90

is arbitrary, and the very meaning of poverty is in part determined by the politics of poverty rather than a comprehensive understanding of the capabilities and opportunities of the poorest members of society.21 Thus, the law attributes a distinct moral identity to a group that cannot be distinguished from the poor in general, and the distinction maintained by the law has had real effects on the lives of poor women. Life stories illuminate the interplay between the law and women’s decisions about work and family that are relevant to the assumed line of demarcation between the moral identities of the deserving and undeserving upon which the institution of means-tested welfare is based. Culture and Authority: The Perry Housing Focus Group I am listening to the tape of the Perry Housing project focus group. The six African-American and Hispanic women in the group live in dilapidated public housing owned and run by the Buffalo Municipal Housing Authority (BMHA) in a barren waterfront neighborhood. The housing is so bad that a substantial portion will be razed during the coming year, and some of the women will have to leave, a move they welcome. Nearby houses are falling into ruin. Drug dealing is common on nearby streets. There is no supermarket, chain store, or fast food restaurant in this neighborhood, nor can they be reached easily by public transportation. Residents rely on one or two bodegas that provide overpriced items and cash public assistance checks. My first impression is that the lives of this group of women seem prototypical welfare cases, examples of the pattern of nonwork, childbearing, and struggle to manage a family made familiar by the extraordinary attempts of sophisticated news media to report the inside story of poverty and welfare reform. Yet, unlike the image the media often create, these women are not passive and unreflective. The women readily identify the problems the public associates with poor mother-only families living in barren ghetto neighborhoods with other poor families and individuals: poor housing, the dangers of the street (their first thoughts are for their children), and dependency on public assistance for an adequate income (the nickel-and-diming under the welfare rules). The group quickly creates a discourse of protection, defense, self-help. Without prompting, their attention frequently turns to their involvement with public authority and with law. They perceive public authority as oppressive, but they respond to different kinds of author-


Dependency by Law

91

ity in different ways. They support each other’s stories of trouble with housing administrators, caseworkers, and police on the streets. Their perceptions are often subtle and understanding. As I listen, I sense the strength they require to confront the daily interaction with others having authority over them. To me the women do not seem humiliated or humbled by their experiences with welfare officials, in contrast to many women on welfare I had spoken with previously. Later, Carla Burke, who is African American, and Tamara Dent, who is white, my collaborators from Project Dandelion, comment that the Perry Housing women are indeed coping with the pressures of poverty, welfare, and low self-esteem. Carla and Tamara are strong believers that receiving welfare has a profound effect on identity. “Welfare redefines you,” Carla said. Tamara added that simply having “to come and go all the time” at the command of a caseworker affects how you feel about yourself. Yet self-esteem seems to me to be a more complex issue, not constructed by the broad authority of public officials who can influence their lives. I hear something not in the give-and-take of the women who participated in earlier groups who seemed closer to leaving public assistance. Hovering over the discussion of the dangers of the street and the temptations presented by their children’s peers is a sense of the personal responsibility they assume for their dilemmas. In response to our first question for the group, “How are you doing?” Anita Clark says, “I don’t like myself.” Sarah Cox says, “I fell and I had kids.” Rosalyn Workman says, “I am struggling right now.” A clue to the identities of these women is suggested by the way they speak to each other. There is something remarkable about the flowing discourse. The discourse is not always a conversation, but sometimes confessional and something closer to bearing witness to a shared experience. When a statement confirms an important element of their shared experience, Anita Clark shouts, “Thank you! . . . Thank you!” I have not been to a Pentecostal church or Sanctified Christian service, but I sense the origins of this form,22 and it is very moving. The culture that gives form to this interaction has also had a profound effect on their identities, and I believe that their consciousness of authority, law, and opportunities in their lives has been shaped by the culture of domesticity and family learned and reinforced in childhood. Anita Clark speaks first, and she talks about the neighborhood. She is thirty-nine. She lives with her five children in Perry Housing, and the protection of her children is at the core of many of her concerns. Anita is vocal about the many dangers on the street—drug dealers and


92

Lives in the Law

gangs, neighbors’ children . . . and cops. Police terrorize the children; they frequently chase kids or rough them up. The women agree that the police behave differently in this neighborhood. Jackie James says, “They have the mentality because we are in the BMHA that we don’t have feelings, we aren’t people.” Anita angrily points out that the teens have rights under the law, and she has been outspoken in her criticism of abuse when she encounters police in her neighborhood. The women know how easily the exercise of public authority over them becomes disrespectful and abusive. Yet Anita’s talk about legal rights of suspects strikes some of the other women as an attempt to shift blame for misbehavior of her children or perhaps for risks that Anita herself has imposed on her children. Sarah Cox, who is thirty and has two children, is not so inclined to be critical of the police. Sarah believes that the dangers of the street are real, and neighbors like Anita should not be so quick to assume that the police acted without reason when they are observed chasing teens in their neighborhood. Nevertheless, Sarah concludes that the surest protection standing between her children and the street is her front door. The police comprise one important aspect of a complex relationship between the lives of women in Perry Housing and the law. Power to control children is given to the police, while at the same time public agencies undermine the authority of poor parents. Anita describes the difficulties of disciplining her teenage daughter in a dangerous neighborhood. During one argument with her daughter about coming home a half hour later than the 10:30 curfew set by Anita, a neighbor called Child Protection Services, and the police responded with an alacrity they do not always show under other circumstances. The irony was not lost on Anita. They got all this problem with you whoopin’ your kids, but they ain’t got no problem with layin’ that billy club upside your child’s head after you let ’em grow up any kind of way . . . No problem whatsoever! Crap! They gonna bust ’em upside the head, but they tryin’ to tell me that I can’t whoop somethin’ that came out of my body . . . Anita Clark often seems angry. When I spoke to her after the focus group, I learned that her life has been profoundly affected by lost opportunities. Her identity is deeply embedded in the history of her migration from Alabama and


Dependency by Law

93

upbringing in Buffalo by middle-aged cousins. She has been influenced by the strict observances of her Sanctified Christian cousins, her outstanding achievement in high school, and her increasing isolation after the death of her cousins due to a dispute with relatives over the cousins’ house, which was left to her alone, and the severe economic decline of the African-American community in which the house is located. As a child, Anita flourished in her cousins’ financially comfortable home in a vibrant working-class neighborhood. Anita was a top student, and “mother” encouraged her to attend Hutchinson Central Technical High School, a school sending many of its graduates to the best colleges. At the same time, Anita was raised in strict accordance with the teachings of the Sanctified Christian church. Although encouraged to achieve in school, she was also taught a woman’s role, denied an opportunity to wear jewelry or to maintain friendships outside of strict limits set by her “mother.” These two strong values, achievement and family, came into conflict during high school. Her grades were good, and she received a letter from Duke University urging her to apply. She was offered a scholarship, but she never left Buffalo to attend the university. During her last years in high school her cousin was diagnosed with cancer, and Anita’s first priority was to care for her cousin. After her cousin died, Anita chose to enter the army as a career. Anita Clark’s failure to follow up on her striking opportunity to attend an elite university may mystify a middle-class observer. Yet, the closeness of Anita’s family not only meant commitment, but enclosure. From a sheltered adolescence Anita was thrust into adulthood without an older generation to guide her and immobilized by ownership of a house located in a neighborhood that was declining rapidly under the impact of Buffalo’s deindustrialization. Anita’s decision to enter the army did not surprise Carla Burke, my co-interviewer from Project Dandelion. Carla understood immediately that to an African-American woman from a strict religious upbringing the army was an opportunity to break free of the extremely confining gender role ingrained by her religious upbringing. At the same time, the army reproduced Anita’s strict upbringing. After several years in the military, Anita suffered a debilitating leg injury, and she asked to be discharged. Following her discharge, reinjury to her leg in an automobile accident has left her with a permanent disability. She has not had full-time employment, and she began to use drugs and alcohol. Unlike most women in the Perry Housing focus group, she has continued have children after age thirty.


94

Lives in the Law

As I listen, the conversation shifts to other forms of oversight by public authority. Sarah Cox is grateful for the safety of her home in Perry Housing. However, many of the other women say they feel trapped. Jackie James said she often thinks of herself as a displaced person. Jackie reluctantly applied for Perry Housing when she was driven by financial necessity. Another woman describes being coerced to live in BMHA housing by the Department of Social Services, which refused to pay her rent anywhere else. Several of the women expressed relief that the housing would soon be torn down. Officials of the BMHA, which owns and manages the public housing, are well known to the focus group’s participants. The women describe how they manage when behind on rent, or handle trouble with neighbors’ children, or make complaints about upkeep. Relations with the managers of the housing project are personal, if not always friendly. The women know the managers well enough to negotiate with them; sometimes the women have connections through friends or relatives with higher-ranking BMHA officials that enable them to “go right to the top” to get what they want. Jackie James’s attitude toward BMHA officials is distinctive. The other mothers seem paralyzed by their inability to close their doors to the street life that invaded their homes and took their children. As one of my university colleagues put it, the women have a fortress mentality; they want to associate with a few families and close out the rest if possible. Much of their discourse is about their inability to protect themselves, but Jackie seems ready to take action. She assumes that the mothers who live in the Perry Housing project can act as a community, confronting the problems of the street and the Housing Authority collectively. She alone says nothing self-deprecating about her life. Jackie James, age forty-six, lives in a two-story apartment in Perry Housing with her sixth and seventh children. Five-year-old Brandon interrupts repeatedly. He is being watched half-heartedly by his nine-year-old sister. Finally, in exasperation Jackie threatens to call her father, who will speak to Brandon over the phone. Only her father and her current (second) husband, the father of both of these children, command sufficient respect to control them when they get out of hand. Jackie’s second husband lives with her some of the time, but he is often unable to support her and has been in Tennessee for eight months looking for work. One of Jackie’s siblings, an older brother, is living with her temporarily. Her father and mother live in a subsidized apartment in another part of town.


Dependency by Law

95

Jackie’s first husband is paying child support and helping in other ways when he can. He is a police officer assigned to the narcotics squad, and often in the Perry Housing project. His presence in the community may be an important factor in keeping Jackie’s twenty-one-year-old son from complete immersion in street life. Jackie uses these connections to maintain a distance between herself and the other residents of Perry Housing. Jackie James is a case study of the mismatch between old-fashioned values and the social and economic demands of a new age in poor African-American communities. Her skepticism about early marriage comes from her own experience. Jackie interprets her teenage pregnancy and marriage as an act of rebellion against her father’s strict upbringing. His “Christian” values emphasized marriage and childbearing while forbidding contraception and abortion. Like Anita, she was not allowed to participate in activities outside the home, such as Girl Scouts, or have clothes conforming to contemporary styles or have a social life. She aspired to be a dancer, but her father strongly opposed it and would not allow her to consider such a career. So, she says, “I decided I might as well get married.” If she has achieved a greater awareness of the importance of being able to maintain her family independent of marriage, why has she continued to have more children, and why has she not worked? She is energetic and certainly does not lack a work ethic. Her planned childbearing stopped within a few years of her second marriage. Resistance to contraception and to abortion is deeply ingrained, but it is also at odds with her sense of the practical reality in which she lives. She felt compelled to speak to her pastor before making a decision to have a tubal ligation after giving birth to her last child. The pastor supported her decision indirectly, saying it was between herself and God, but I am not sure what Jackie would have done if he had strongly objected. Working has been complicated her disability, narcolepsy, that remained undiagnosed until she reached her forties. She remembers falling asleep in school and later in job training programs. At work, the symptoms of her disability were taken as evidence of her laziness and drinking on the job. Her father is a believer in herbal medicines and home remedies, and he did not encourage further diagnosis of her problem. She sought diagnosis and treatment in her early forties as a result of seeing a TV program about the disease. Medication now makes it possible for her to hold a job, but few jobs have been offered because, she suspects, she always faithfully lists her disability on her job applications. All of her older daughters have completed high school, but not her twentyone-year-old (the first child of her second marriage). So far the lure of the street


96

Lives in the Law

is stronger than his interest in completing school. The examples set by Jackie’s first husband and his grandfather have been undermined by the lack of firm discipline at home and the readiness of the Department of Social Services to pay for an apartment for her son to “solve” the problem created by the lack of supervision at home. Jackie acknowledges that requesting a separate apartment for her son was a mistake because her son lacked the self-discipline to live on his own, attend school, and finish his education. While not permanently lost to the streets, his future hangs in the balance between the drug-selling friends he values for good times and money and his claim that he will continue his education when he is ready. During the focus group, Jackie criticizes the interventions of welfare officials. She has come to believe that “social services is the breakdown of family.” The Department of Social Services offers immature teen sons and pregnant daughters their own apartments. Further, BMHA and the welfare office have strict rules about who can live with her that bar significant others, sick children, or any other member of her family from staying for more than a few days. These rules are at odds with the relationships that sustain her resource-poor extended family, and she has been prepared to “go to court . . . cause you’re not gonna tell me who can come in and out of my house.” Like Anita’s invocation of rights, Jackie’s threat to mobilize the law attempts to legitimate a claim that seems, even in her own mind, to rest on contested ground, shifting blame for her family’s problems to others. Jackie Jones’s story about her son’s apartment marks yet another complex shift in the conversation that occurs when the women describe experiences receiving welfare. At one extreme, Jackie views the intrusion of public supervision of her family in negative terms. Sarah Cox has a different view. In her teens, Sarah alternated between work and welfare, and when she was forced by circumstances to stop working, she became a drug addict. She voluntarily gave up her children to foster care. Through her own efforts she conquered her addiction, and she has reunited her family. She says repeatedly that is grateful to the Department of Social Services for “being there for me.” During the focus group, Sarah in particular voiced the “fortress” mentality of Perry Housing project mothers—keep your kids at home and away from other children who lack supervision. In my conversation with her, she repeated her determination to separate herself and her children from her neighbors, and to


Dependency by Law

97

call on her relatives when she needs help. Her sisters also live in Perry Housing. Her mother lives in public housing on the west side of Buffalo, and these vital connections helped her through an extremely dangerous period of her life. Sarah Cox was born after the family migrated from the south to the same Buffalo neighborhood that Anita Clark and Carla Burke grew up in. Her alcoholic father abandoned the family when she was an adolescent. The neighborhood had a dangerous street life, but Sarah had friends in school. She got “good” grades—by which she meant Cs earned without a struggle. Her mother cared about completing high school, although she did not place great emphasis on high grades. Sarah wanted to become a teacher. At age sixteen Sarah became pregnant, and at age seventeen she had a second child by the same man. After the second child she dropped out of high school to take care of her children. I asked her why she had become pregnant, an event that affected the course her life has taken, and one which she seems to regret. “I was hard-headed; I didn’t listen to my mother’s advice about contraception,” she says. Although Sarah’s mother did not belong to a strict Baptist denomination, her religion was nevertheless clear about the menial role of women and their subservience to men. Sarah began working after the birth of her second child, leaving her children with her mother while she took a company bus every day to a packing plant where she bagged vegetables for freezing in a cold, damp room. She became ill from the dampness, but the company had no nurse or dispensary on the premises, and Sarah was told she could wait on the bus until the end of the working day. Her illness eventually led to her decision to leave work, obtain her own welfare grant, and to move into her own apartment. Her decision to leave work had serious consequences. She did not return to any form of employment for eight years. She began living with a man who used drugs. Through him she fell in with a “good time” crowd where she lived, began using drugs herself, and neglected her children. After years of deteriorating care for her children, Sarah gave legal custody of her children to her older sister Dolores. Dolores told Sarah to stay away as long as she was on drugs. Sarah says that separation from her children forced her to get off of drugs. Through great determination she rescued herself by entering a rehab program and ending the relationship with her drug-using and abusive boyfriend. For a year and half after leaving the drug program she lived by herself in a one-bedroom apartment. Not until she had lived successfully on her own for this length of time did she seek custody of her children again and fully resume her role as mother.


98

Lives in the Law

Sarah Cox’s story demonstrates how the new welfare law’s moral construction of a “work ethic” falls short. The law permits commitment to work and self-sufficiency to be demonstrated in just one way, continuous employment. Sarah has never lacked determination to take care of herself and her family, surviving the job at the packing plant, getting herself off of drugs, and separating herself completely from the former friends in “the life.” Her determination makes her a protective and capable parent, doing everything she can to protect her children in a predatory environment. Many others have failed in this task; she has a chance of succeeding. Her determination is currently directed toward some goals that demonstrate her “work ethic” (e.g., raising and protecting her children) but not toward others (such as full-time employment, to which she is likely to return at a later point in her life). Under New York’s Community Work Experience Program, Sarah has tried working as a building cleaner, but she has suffered a leg injury that makes it difficult to perform jobs that require long hours on her feet. She is aware that workfare was touted as a training program leading to the acquisition of work skills and jobs, but she knows different. A real job lasts, and a good job requires education that welfare won’t provide. In Sarah Cox’s perception, welfare law is legitimated not by the law’s requirement that recipients work for their welfare, which makes little sense given their multiple responsibilities and lack of resources, but by the fact that welfare recipients are workers and will provide help to others when they are in a position to resume work. Indeed, she views welfare as a necessary form of social reciprocity because “some way, somehow, everybody needs help.” As a taxpayer she would not criticize welfare recipients. Everybody needs help, and there’s not like they’re taking a lot away from you to help keep social service going to benefit others. So I wouldn’t feel that way. I just would always say, “Well, if I’m workin’ and I can maybe eventually somewhere down the line, they’ll go to work, and they’ll give back what was given to them.” Sarah Cox’s story, like the stories of the other women, suggests that self-esteem and aspirations are closely related. Sarah is a determined mother, and she aspires to independence through employment. She lacks self-confidence, not because she has never worked, but because the culture in which she was raised prepared her for roles in a family she cannot form and did not prepare her for self-sufficiency in a community that offers little social support.


Dependency by Law

99

These women were raised to achieve in contradictory ways. Their religious upbringing taught them roles that were self-destructive in the contemporary ghetto setting. They have had to set other goals for themselves with no role models or mentors to guide them, to give them instruction, to tell Anita about other colleges, to tell Jackie James about other outlets for her rebellion, to help them understand and guide their own children. Rebellion is a youthful way of breaking from an oppressive culture that offers no opportunities. These African-American women are attempting to give effect to their aspirations in a profoundly isolated social setting with almost no social capital to draw upon. The lack of self-esteem of these women does not arise from dependence on welfare. Rather, it arises from a seamless convergence between the moral judgments derived from their strict upbringing and the identity of the iconic welfare-dependent mother conveyed by welfare law and its administration. Thus, poor women make choices within an overdetermined opportunity structure shaped in part by the law. At the same time, their paths to and through poverty, and in particular the role played by the law we create for the poor, have been affected by how they understand themselves and how they view the opportunities that they have. Race, Dependency, and Identity: The Private Industry Council Focus Group I am conducting our sixth focus group. The participants are receiving job training and counseling from the Private Industry Council (PIC). This group of women is different from the Perry Housing group in important ways. These women come from a variety of backgrounds, but all are unemployed and seeking work. By inviting a conversation among women from different backgrounds, some from deep and continuous poverty, others from relative affluence, some from African-American origins, others from a variety of white cultural origins, I hoped to learn more about mutual perceptions across major boundaries of social difference. I was particularly interested in the differences and commonalities in the women’s perceptions of themselves and each other. Two of the women, Khala Tomkins and Cheryl Clauson, both African American, are receiving welfare and are engaged in welfare-towork job searches. One of the five other women, Claire Lewis, is also African American. Claire has been a single parent but has been married


100

Lives in the Law

for many years. She was pushed out of a high-ranking state administrative job for political reasons, and she is seeking meaningful activity rather than employment that resembles her former job. The four other women are white. They include Mary McCurtis, a divorced single parent who tends bar by night and is looking for day work in an office. Krista Egri, in her fifties, has recently remarried but was a single parent for many years after her first marriage ended in divorce. Krista’s confidence and self-esteem have been severely shaken by the loss of highly responsible executive positions in two firms that closed in Buffalo. Sue Cort is young, recently married, and seeking a job that will enable her and her husband to own a home and begin a family. The seventh participant, Ann Courtnall, is a nurse administrator with a husband and children who has been forced to leave her job by her employer’s decision to reorganize her office. All except Khala Tomkins have recently lost jobs; Khala is seeking work to qualify for welfare. Together their lives illustrate the problems of women’s economic dependency in the 1990s. As I lead the group, I am struck by how much the two women on welfare have in common with the other members of this group of women. Cheryl Clauson, age thirty-one, mother of four children, married thirteen years, describes her strict upbringing, escape from home with a man in the service, and the eventual breakup of her marriage three years ago. She has survived much hardship, she says, and believes her mother’s statement, “If it doesn’t kill you, it will make you stronger.” The group comes alive, expressing strong agreement. The traumatic experiences of job loss, unemployment, and seeking employment have created bonds among the participants in these focus groups notwithstanding the great differences in background. The next to speak is Khala Tomkins, age twenty-seven, and mother of one child. Khala’s voice is so soft she can barely be heard. She is a college graduate with a major in computer programming. The group comes alive again. Many of the women are older, and upgrading their computer skills is an important stepping-stone to employment. They are clearly impressed by Khala’s mastery of computers well beyond the office applications they themselves are learning. Claire Lewis speaks next. She is an African-American woman in her forties, married to an elected official and seeking work because “she needs a purpose” following the termination of her state administrative job to make room for someone with better political connections. Claire places herself on a different track from the others because she says she


Dependency by Law

101

is seeking work for the enjoyment, not for the income. Claire also mentions that she has been a single parent; notwithstanding, she does not engage Cheryl Clauson or Khala Tomkins as some of the others do. As the women speak, I hear spoken and unspoken judgments about the women on welfare. When Khala acknowledges that she has a problem being effective in interviews, the other women are maternal toward her, giving her advice about the importance of being more outspoken and self-confident with prospective employers. Khala seems younger than her twenty-seven years, and they treat her almost as a daughter. She might almost be perceived as immature, and I, too, wonder why she seems to have stayed home with a child although her degree in computer science suggests that she could find a good job that would pay for child care. The group would like to believe that she represents hope for her generation of young, poor but educated black women. I no longer doubt Khala Tomkins’s ambition or self-possession. Her story has dimensions not apparent in the focus group. By the time I interviewed Khala at her home, a week after the focus group, Carla had already recruited her to join a delegation that drove to Albany to lobby western New York legislators about social services legislation. Carla reported that Khala had no problem speaking to the legislators. While Khala is quiet, she is articulate and thoughtful and does not hesitate to stand up for her interests. She has compensated for her quiet disposition by choosing a college with small classes that would allow her to participate more comfortably. Her career decisions place her in a small group of success stories among the graduates of an all-black inner-city high school. She and a group of close friends have postponed their first pregnancy into their twenties and limited their childbearing. For nine years she has lived with her boyfriend, the father of her child. He has stayed at home and cared for their daughter, allowing Khala to finish school and to work. She will not marry him, however, because neither of them is ready to provide support for a family. She might easily find work and in fact has a job earning $7.38 an hour when I interviewed her, but her longterm goal is to find work in her technical field at a much higher, family-supporting wage. The focus group members believed that the economy, particularly the high-tech economy, was providing extraordinary opportunities for young persons in Khala’s field, but I believe Khala, who says the opportunities do not exist in Buffalo. She is considering moving to North Carolina, where she believes the opportunities are better.


102

Lives in the Law

In contrast to the sympathetic responsiveness to Khala, there is little interaction with Cheryl Clauson. Cheryl seems much older than Khala, although she is only thirty-one and Khala twenty-seven. She has been married most of her adult life, but her four children and spotty work experience suggest to the group a different identity. The group falls silent after she tells a long story about being repeatedly deceived by a used-car dealer. The group’s faces read, “Why is this woman paying so much for a car?” “This woman does not know how to handle her own affairs.” Later, Sue Cort, the young newlywed, tells of totaling her car a day or two earlier. She has borrowed another car to make her job interviews and has handled the problem more effectively than Cheryl. I learn during the lunch break that Sue’s father is a used-car dealer. Although there is no direct interaction with Cheryl, there are what I read to be strong indirect responses. Mary McCurtis is Boston Irish, a divorced single parent. Growing up, she was not encouraged to think ahead to college or independence; marriage was expected instead. She escaped her troubled middle-class home by marrying a man in the service (just as Cheryl had). When the marriage failed, she was far away from home and chose to remain at a distance from her family. Her sisters also have failed marriages, and they returned to their parents’ home. Mary has refused to return and resists dependence on her parents. Mary declared to the group that though poor, she would never have applied for welfare. The statement was spontaneous, but I cannot help wondering whether Cheryl’s and Khala’s presence made the statement necessary. Mary did apply for the emergency fuel assistance program (HEAP), but has never been on welfare. When I later asked Mary McCurtis about her refusal to apply for welfare, she was unable to give what I would call a rational response. She suggested spontaneously that Khala and Cheryl probably needed the money more than she did. Although it was difficult to determine precisely what Mary’s financial resources were at that point in her life, I suspect that her income was low enough to qualify for welfare. She had resources, of course. She was white and had made friends in the community where she had lived with her husband, including her husband’s sister. She was able to turn friendships into jobs. Neither Khala nor Cheryl possessed such social capital. Mary commented that she looked on Khala with greater favor than Cheryl. She mentioned Cheryl’s trouble dealing with the crooked used-car dealer. Cheryl had become the stereotypical welfare recipient.


Dependency by Law

103

Krista Egri spoke last. She has survived three emotionally devastating job terminations after playing an important role within each company. In her fifties, she describes her track record as an extraordinarily capable personnel manager and business administrator, and her misfortune that two of the companies she has picked soon went out of business. The third, a large bank, downsized her department. Her lack of formal education has been a lifelong barrier to a more secure career. Krista left a marriage with teenage children and became instantly poor. She, like Mary McCurtis, commented to the group that she never relied on welfare, but also like Mary had applied for emergency fuel assistance. I learned later that Krista Egri is a third-generation American of Hungarian descent (on her father’s side). Her grandfather was a craftsman who settled in Lackawanna and worked in the steel plants until the factory’s took a toll on his health. He and his wife ran a corner grocery store after that. Her father was a tool-and-die maker with a GED. Her mother finished high school, and she met her father while they were both working at DuPont (during the war, since she is about my age). She was a shift supervisor. Her mother stopped working when she became pregnant and never worked after that. Krista says her mother was restless and would have liked to work; she was active in the community. Krista worked during high school. She herself made a decision to attend a private Catholic high school that was more orderly and serious than the public high school she would have attended. Her parents agreed to pay her tuition, but they allowed her to make her own decisions and never pushed her to go to college. While her parents set up college funds for each of their three children, family traditions (work and marriage) worked at cross-purposes with educational aspirations. None of the children finished college, although her two younger brothers have received associate’s degrees in technical fields. Her marriage lasted almost twenty years, but for many years it was not a good relationship. She did not mention abuse, but her husband had a problem (something like compulsive gambling—I did not ask), and she eventually left. She was very private about the breakup. She did not tell her parents at first and has always been reluctant to accept help. Her parents had to sneak food into her house, she said. She has received help in other ways, too—a tolerant employer who valued her work and permitted flexibility to take care of kids. She would not take welfare. The self-esteem issues are huge. She feels responsible for the breakup, as she does for her job losses, even though she knows she is not responsible and would not be viewed that way. Later, when I asked again why she thought Khala and Cheryl were on welfare while she her-


104

Lives in the Law

self had never applied for welfare, she gave reasons for the difference between her own attitude and theirs. She expressed her tolerance in spite of the difference. Their kids are small, she said; they face minimum-wage employment that will not support a family. Taking care of kids comes first. But this does not capture the strength of feeling she expressed, which suggested to me that applying for welfare would have contributed to further loss of self-esteem by a person who already felt herself to be a failure. She had used the terms “those people” and “them” to refer to welfare recipients. I trust this first take—she needs to be different from them. Like Mary McCurtis, Krista Egri has social capital in the form of friends and a safety net in the form of her family even if she is very reluctant to use it. Beneath the surface a careful appraisal was being made across the table as the others made up their minds about the two African-American welfare recipients. But the appraisal of the welfare recipients by the other women was at the same time a self-appraisal and an indication of the difficulty and complexity of the problem of dependency for poor women, and indeed all women in our society. At the end of the focus group I asked what should be done to help women like themselves. Notwithstanding the undercurrents that suggested that some of the women viewed “welfare recipient” as a status and an identity did they not want, there was consensus about the deservingness of women who were supporting children. Mary McCurtis immediately said that day care should be publicly provided, and Krista Egri said the issue has become so important that corporations are concerned. Krista also suggested that an increase in the minimum wage would go a long way toward helping women, who disproportionately rely on low-wage jobs. Others thought that support for the unemployed, whether in need of welfare or not, should be more comprehensive. Their belief that there was an overall lack of fit between public benefits and the needs of women supporting children was quite apparent. Claire Lewis suggested that welfare should be more generous with much more support for making the transition to work by providing services, counseling, and transportation. Her suggestion that welfare should be more generous, as much as her silences about her single parenting, may reflect conflicted feelings about having shared Khala’s and Cheryl’s experience. Cheryl Clauson and Khala Tomkins did not speak during the discussion of ways to help women supporting small chil-


Dependency by Law

105

dren, although they were in many ways the subject about which the women were speaking. Dependency by Law The life stories of poor women suggest that the law’s authority is deeply embedded in their lives, but their stories suggest that there is a difference between dependency on welfare and dependency constructed by welfare law. As we have seen, poor women are not weak or without the will to protect their families or to work to support them. Most of the women not only managed child rearing and work, but also dealt with major problems—family needs, neighborhood dangers, personal addiction, or hostile caseworkers and other public officials. Welfare provided benefits for these women, but the law also constructed their dependency, by giving arbitrary authority over them to public officials, by sanctioning their isolation, and by reinforcing social fault lines that separate poor African-American women from others who share their needs and interests. The women were aware of the law’s destructive influence, and their stories displayed their resourcefulness and determination in resisting the construction of their dependency. Scholars who have considered the place of law and the role of rights in the consciousness of welfare recipients have concluded, not unreasonably, that the law is oppressive to the poor. Law subjects few other persons to such close supervision and dependence on the will of administrators as welfare law imposes on welfare recipients. Although it might be argued that recipients voluntarily submit to the terms and supervision required by welfare law, the extreme necessity that must be demonstrated for eligibility suggests recipients have severely constrained choices, and to decline welfare has high costs. Recipients can hardly be said to consent knowingly and freely to the maze of terms and regulations through which benefits trickle or to the nearly unfettered discretion that the complex interplay of conditions grants to administrators. John Gilliom concludes that the welfare recipient lives in a world of “confusion and ignorance about basic regulations” and “fear of the welfare agency and its enforcement of those regulations” that constitutes “an almost totalizing system of laws.” The recipient’s entrapment is complete, Gilliom notes, because the women are also denied access to the legal system’s emancipatory capacity to give voice


106

Lives in the Law

to those aggrieved by authority.23 In the world of dependency created by welfare, he concluded, law renders poor women rights-less and without consciousness of rights.24 While it cannot be disputed that the power exercised by welfare administrators over poor women is one-sided, the identity and legal consciousness of these women is far from one-dimensional. Welfare mothers’ life stories suggest that their understanding of law can be both more complex and, at times, more effective than would follow from the stark picture of naked oppression.25 The picture of law’s oppression of the poor confuses the identity of the welfare recipient constructed by the world of legal and administrative practices with the capabilities of welfare recipients. It confuses dependency as a legal construct with the ability of the poor to use their interactions with welfare administrators in strategic ways. It overlooks the fact that the women’s interactions with different institutions of law can be quite different. And it assumes a close relationship between rights and identity, overlooking other sources of identity that provide a different framework for understanding authority and moral behavior (as suggested by Gilliom at other points) and ground legal consciousness in experience outside the welfare system. Understanding the legal consciousness of poor women and the role of law is made more complex by the women’s self-presentation, which often seems to concede that they are incompetent to engage in the discourse of rights required by law. Few of the women spoke of their interactions with welfare administrators in terms of rights. Of course, to expect welfare recipients to speak of welfare in terms of rights seems to be on quite the wrong track because few citizens think of their routine interactions with government bureaucracies in terms of rights. In the welfare setting, however, recipients are often practical and strategic about their relationships with caseworkers and other administrators.26 Further, the law’s legitimacy in imposing public authority on the irresponsible behavior of the poor seems to be confirmed by widely observed “irrational” behavior of the poor—the welfare recipient buying luxuries with food stamps, the poor family dining out. Similar behavior—including extravagant or self-indulgent purchases—occurs at all income levels. The problem of poverty is that the poor have too little money to live tolerable lives and to be considered rational.27 Misperception of complex personal histories and the cultural context of


Dependency by Law

107

poverty also contributes to validation of the supervisory powers created by welfare laws. In our PIC focus group, Cheryl’s story about unsuccessful attempts to get a used-car dealer to repair a lemon suggested to other members of the group that she was immature and foolish, as they unself-consciously expected a black welfare mother to be. Her ineptitude following a recent divorce could have created a bond with the white divorcees if her race and demeanor had counted for less. Such misperceptions and the new realism of welfare reform mutually reinforce each other. As I noted, at my first listening the Perry Housing focus group seemed to confirm the story of the iconic welfare mother. The slice of each individual biography that was shared in the conversation contained elements that welfare reformers have remarked upon in their efforts to redirect the lives of mothers who rely on public assistance. Each of the participants received some form of public assistance. Each has two or more children. They recounted difficulties with drugs and with live-in boyfriends. Most worked irregularly or were not working. Yet the picture that is composed from just these elements, like the interpretations embedded in the new law by welfare reformers, is outside of biographical time, outside the life cycle that sequences building social capital, learning about work, making decisions about childbearing, and supporting, in many different ways, other members of a family. The period of time on welfare for most women is far shorter than the public imagines.28 It is relatively short not because the women eventually acquire the work ethic they lacked, but because childbearing and child rearing constitute only one phase in a life cycle that includes other phases. As a society we allocate these burdens uniquely to women; yet as a society we are unwilling to recognize that women’s decisions about work and other desired activities must always take account of that responsibility. Nor are such life cycles constituted in the same way in all parts of our culture.29 Childbearing, work, marriage, and caring for other members of the family can fall in a very different order in different cultures.30 Thus, dependency is often misperceived through the lenses that the law helps to construct. The Perry Housing women often seemed unready to participate in the labor market. How is this to be understood? In general, women in our society are expected to assume responsibilities that are not assigned to men; indeed society pressures women to make child rearing their priority notwithstanding personal aspira-


108

Lives in the Law

tions for market labor or a career. In the African-American community of the Perry women, their Christian fundamentalist background and limited family resources combined to make their early childbearing trajectory intelligible. As teenagers, their belief that completing school would have been a waste of time was not unreasonable because so many peers who finished school were unable to make a living wage in the job market. As adults, most have an increased appreciation for their need for education, but the rules of public assistance now bar that alternative. They are undaunted by the risks of working; contrary to the expectations of new realist welfare reformers, all have worked. They have accepted public assistance rather than take other kinds of risks, for example risks that might affect the well-being of their children. Yet, the law brands them as morally dependent and disrupts an efficient plan for managing both child rearing and education,31 for example, by imposing a family cap or time limits and requiring work instead of education.32 As the PIC women made clear, the public identity of welfare recipients affects the choices of all poor women. The unemployed poor white women in the PIC group made a point of rejecting welfare. Their reasons for doing so may have been influenced in part by the complex interplay between the stigma of welfare and the stigma of a “failed” marriage, or the moral degradation associated even with “deserving” dependency for women. Most of all the white women’s rejection of welfare seemed to reflect the racialization of welfare and the stereotype of the welfare mother.33 Not only may dependency be misperceived through the lenses that law helps to construct, but poor women have become more dependent through the interplay of law and the conditions of their poverty. The women are often aware that the law contributes to their dependency. Anita Clark, the strongest voice in the Perry Housing focus group, understood the irony that public supervision leads to loss of autonomy. She observed that public officials undermined the autonomy of parental supervision through welfare conditions that removed parents from the home in order to work or fulfill bureaucratic requirements, through the disorder characteristic of vast, anonymous public housing projects, and through intrusive oversight by Child Protection Services. She was angry that, as a result of undermining parental authority, children grow up requiring greater public supervision on the street, in schools, and ultimately in prisons. Further, Anita and other group participants understood that the


Dependency by Law

109

greatest task of a single mother in the projects is policing boundaries between family and the world outside in order to protect her children. She, like the others, has fought to maintain the boundary between her apartment and the unpredictable environment outside, the boundary between her children and the children of neighbors she could not trust, the boundary between the de facto nuclear family (mother and children) and a nonresident father or lover, the boundary between the nuclear family and relatives who have a claim on her emotional, moral, and financial resources. In the complex social and spatial geography that dominated the group’s discussion, the public-private boundary became one more border to police. Welfare law makes poor women dependent by isolating them. For example, the Perry Housing women described ways in which the law’s authority has created and reinforced barriers to relationships that might have assisted or sustained them or members of their families. The most pervasive influence in the lives of the Perry Housing women was the Perry Housing project itself. The women emphasized that it was housing of last resort; each of them had lived in better housing and entered the housing project only after misfortune reduced their means of social and financial support. The project is old, poorly maintained, dangerous, but, above all, isolated from public transportation, services, and shopping. The neighborhood is a good example of William Julius Wilson’s second-generation ghetto, without members of the working class or middle class to sustain a sense of connection to possibilities for work and a better life. Unless relatives live in the project, the women are unlikely to see them on a regular basis. Sadly, there is a waiting list even for these apartments. The women are not provided opportunities to live elsewhere, and as long as they live in Perry Housing, their chances of reconnecting fully to a better life continue to decline. Jackie James has another perspective on the interplay between welfare and family separation. Welfare authorities offered to place her teenage son in an apartment of his own during his last years of high school. Their offer seemed an easy way out of her difficulties in parenting the boy. In the project neighborhood, however, teenage boys are at great risk to gang influence and drugs. Jackie’s first husband is a member of the police undercover detail that apprehends drug dealers. He is not the boy’s father, but his influence over Jackie’s son has been extremely important in keeping him from the worst influences on the streets. Those risks were greatly increased, Jackie says, by the welfare


110

Lives in the Law

department’s misplaced generosity. The other strong male presence in her son’s life, Jackie’s father, will have less frequent contact with him as a result of the change in living arrangements. It is possible to imagine a far better use of the cost of rental housing for the son, for example paying for his enrollment in a private school or doubling Jackie’s own rent subsidy and allowing her to move with her children to a better neighborhood closer to her parents. The cooperation by the Department of Social Services in setting up separate living arrangements for Jackie’s son to leave her home is just one example of welfare’s micromanagement of household composition. Welfare eligibility rules are far less benign, making it difficult to combine incomes to assure a poverty-level subsistence. Although the days are gone when fathers had to leave a household supported by welfare, new rules for combining sources of income received by others in a household disqualify many individuals living with an extended family with multiple, yet collectively inadequate, sources of income.34 Welfare also creates dependency by affecting the way poor women perceive themselves. We know women who receive welfare are not dependent in the way the public thinks because they often work and because their behavior does not support the theory that welfare is a moral hazard.35 They do not lack determination. Yet, there is a connection between welfare and self-concept. The moral icon to which welfare is calibrated is the working male.36 Women are viewed by the new realism of welfare just as the male job market often perceives them, as workers with baggage. After offsetting the distinct cost factors that make female caretakers’ job market participation visibly different from males’, for example, by providing day care, welfare requires recipients to behave like males. The PIC men’s focus group validated this standard by accepting the dominant discourse of the contemporary job market, aptly reflected in the faith expressed by one participant that “there’s a job out there for everyone.” The implication of this standard is that unemployed men should feel bad about themselves (and they do) and expect no assistance. The selfconcept of the women in both focus groups was more complex. The PIC women were sensitive to the imperative imposed on women to care for children. They wanted public resources to help with child rearing and not just resources for minimal day care. Yet, even for them child rearing was not the moral equivalent of work and did not excuse nonwork. Of all the women interviewed in both focus groups, Sarah Cox, the


Dependency by Law

111

reformed drug addict who had traveled the longest road back to redeem her family and her life, provided a justification for the women’s claim to welfare as a universal entitlement based on fair play. Significantly, the foundation for her claim of entitlement to welfare rested on two assumptions, first that everyone will work when they are able to and second that everyone is dependent at some point in life and must give back to the community for the support they receive. Sarah’s insightful theory would relieve women of the stigma of welfare, but other women in the focus groups had difficulty separating their experiences and their own values as single parents from the wider cultural significance of their mother-only child rearing. For the Perry Housing women welfare was often a symbol of a deficiency—unreadiness to become self-sufficient by morally acceptable means, either marriage or work. For the white women in the PIC group, the identity imposed by welfare reinforced preexisting moral fault lines, a failed marriage, the struggle to preserve class and race identity in the descent into poverty. The African-American recipients in the Perry Housing group made a seamless connection between their identities as welfare recipients and the moral degradation they experienced through religious beliefs that identified them as fallen women. The simultaneous moral degradation of their religion and stigmatization by law surely made it harder to resist the public’s condemnation. Recipients, including the Perry Housing women, readily criticized other recipients for their abuses of welfare. Their own low self-esteem, evident from the opening moments of their conversation, cannot be very far removed from the public’s perceptions of them. Fighting Dependency in the Trenches Although women’s stories show that the law’s assumptions about the dependency of poor women with children can become a self-fulfilling prophecy, many of the women struggled to avoid the dependency constructed by welfare law. Some women refused to apply for welfare benefits that might have alleviated their poverty because they found the symbolic costs too high. Other women adopted creative strategies that instrumentalized their relationship to the law in order to benefit themselves or their families in ways that the law did not formally permit. Differences among the women’s stories of their resistance to dependency by law remind us that race deeply colors the identity and con-


112

Lives in the Law

sciousness of all poor women and their moral judgments about each other. In the lives of poor women the boundary between public and private always seems to be problematic. Less affluent members of our society have far more contact with government agencies in general,37 and poor women approach such contacts with far fewer social and cultural resources than most others. The Perry Housing women did not always overtly contest the domain and authority of officials, but they often attempted to manage incursions into their lives. Identity itself may be in the balance for these women. As Tamara commented, selfesteem is affected simply by the power of minor officials to require recipients to come and go, often by making extraordinary efforts to transport and present themselves to satisfy trivial, routine, often apparently meaningless requirements. Welfare recipients must deal with the enormous discretionary authority of minor functionaries in the welfare bureaucracy. The proliferation of rules under prereform welfare created effectively unlimited discretion.38 Far from simplifying and clarifying eligibility and other conditions of welfare, reform greatly complicated the task of determining eligibility and coordinating provision of benefits and services. Caseworkers retained their discretionary authority. Many recipients echoed the complaint of Tamara Dent, my collaborator from Project Dandelion, that the power of the system, however it was exercised by caseworkers, was degrading and humiliating. Yet some women described effective strategies for dealing with the discretionary authority of caseworkers. Sometimes, the women found a sympathetic caseworker who used her discretion to the recipient’s advantage and occasionally colluded with the recipient in bending rules. For example, one participant found it was possible to extend educational benefits well beyond the permitted maximum time period by judicious cycling on and off welfare and with the help of a sympathetic caseworker. Her goal was a college education and a thirty-thousand-dollar-a-year job, not a minimum wage job. She has postponed marriage until she can, in Carla’s words, “bring something to the table.” There are reasons why recipients and caseworkers might be able to establish a sympathetic relationship, although this is by no means universal. Many caseworkers have had experience living on low incomes, and they are themselves closely supervised. Bonds of empathy can be created between recipients and caseworkers, but caseworkers can also


Dependency by Law

113

respond to their own oppression by becoming hostile to recipients, increasing the frustration and oppression of mothers on welfare. The women in Perry Housing quickly learned how to change caseworkers if necessary by complaining to a supervisor, and a number have asked for fair hearings when dissatisfied with decisions. Few of the Perry women expressed animosity toward or fear of a caseworker, although the women often expressed frustration with the system and the way its rules impeded progress toward independence. The relationship that the women establish with the welfare bureaucracy was instrumental, not rights-oriented, serving specific goals by practical means. In the words of welfare historian Michael Katz, the women have found means of “navigating the welfare state from below.”39 The women in the Perry Housing group approached other legal authorities with a different consciousness. Their complex relationship with the police reflected their dual perceptions of the role of the police. On one hand, the women believed that the police generally abused their authority in ways that did not occur in other neighborhoods. Anita Clark’s claim that the police violated the legal rights of the kids they stopped, threatened, or arrested on the street seems consistent with this perception. On the other, some of the women suggested that Anita Clark’s claim that the police violated the rights of kids inappropriately shifted blame away from the kids themselves and their parents. Anita’s attempt to place responsibility for her children’s troubles on the police by asserting rights was undermined by her own identity as a problematic mother. More generally, the women’s responses to Anita revealed their troubled self-perceptions because they blame the police but also blame themselves for the risks their children face. The women spoke confidently about mobilizing formal legal proceedings when they felt more secure about the legitimacy of a claim to a contested entitlement. For example, a number had requested fair hearings to contest welfare decisions. One mentioned employing an attorney to obtain larger support payments from her former husband. Perry Housing officials required yet another approach. Because the relationship between the women and housing officials was more frequent and familiar than relations with other officials, it was also more complex. Sometimes the women could go right to the top administrators of the Buffalo Municipal Housing Authority through personal friends. On the other hand, disputes with a housing supervisor were sometimes harder to resolve formally because they could become


114

Lives in the Law

entangled in mutual personal grievances, involving the women in constant arguing and complaining to obtain services. Thus, the legal consciousness of the Perry Housing women was often pragmatic, depending upon their expectations of results as well as their assessments of the wrongdoing of others and their own deservingness.40 We have created a class of dependents by law, but their descriptions of problems they face reflect a double consciousness of dependency and agency. Poor mothers take the moral framework for their public identity seriously, as evidenced by affirmation of the public perception that welfare is widely abused, and at the same time they convey a double consciousness of their moral state. Poor persons, persons of color, and women are often not only conscious of their difference but perceive the world simultaneously in terms of the dominant (male or white) view and in terms centered in their own identity. Some may be more sharply aware of their double consciousness than others, and may believe in the importance of maintaining and developing the difference between meanings and concepts used in the dominant discourse and in their own situated discourse. W. E. B. Du Bois argued that this kind of double consciousness was a necessity among blacks who were destined to live compatibly with whites but never to become assimilated to their culture.41 Others may simply be ill at ease with the images, rhetoric, or practices that mainstream social relations require. Consciousness is a behavior that responds to context and opportunity and, like identity, grows with the possibilities for new activity. Culturally specific consciousness of the world may work both for and against African-American women. Investing in a career from an early age requires an enormous trust in the educational system and job market—faith that the widely shared mainstream belief in opportunity is valid for the individual. Trust in such abstract systems is, according to Anthony Giddens,42 fundamental to participation in modern society. In this respect, poorer African-American communities reflect a deeply flawed modernity. Many African Americans in poor communities have understandings of education and work that do not reflect the abstract faith in the opportunities and careers shared by the black or white middle class but rather reflect their own experience and the experience and knowledge of those they have learned to trust. Anita Clark and Khala Tomkins missed extraordinary educational opportunities in part because they lacked knowledge they trusted about how to pursue them. Both chose an alternative validated by the experience conveyed by a


Dependency by Law

115

source closer to the community that has formed their identity. Their double consciousness is manifested in their capture by local knowledge on one hand and the placement of their aspirations squarely in the mainstream on the other by pursuing education, postponing marriage, and, in Anita Clark’s case, lecturing at local high schools about the importance of staying in school and avoiding drugs.43 Carla Burke reoriented her career by trusting the example of her sister, who escaped poverty and who, in turn, trusted a middle-class white family’s mentoring. Double consciousness, therefore, can play a part in personal evolution, adaptation, and the potential for change. Black and White Welfare Poor women who are supporting children carry a double burden: a financial burden they are often poorly prepared and poorly positioned to assume and an identity burden associated with receiving assistance from public programs. Welfare law contributes to both burdens by constructing dependency. Contrary to the arguments of the critics of welfare, the benefits provided by law did not render these women incapable of supporting themselves. Rather, the law contributed to their isolation and incapacity for individual or collective self-help, separating poor welfare recipients from members of their own families, from more affluent members of the community, and from other poor women. Law even works against the liberating effects of double consciousness by reinforcing dominant imagery of identity and the causes of poverty. Universally, the women tell us about their oppression but also about their capacity to be autonomous individuals and to act on aspirations they share with each other and a large part of the mainstream. But the women are stopped by the racial fault line. Moral judgments about welfare recipients in the 1990s always seem to come back to race. Although the women in these focus groups accepted the need of all women for collective resources to help them manage child rearing, race became entangled in their perceptions of individual moral character, so that a black woman’s dependency and a white woman’s dependency were read differently. Material and cultural differences that set the lives of white women and black women in poverty apart were read as moral differences. The law encourages such a reading of moral accountability for dependency by presuming that


Lives in the Law

116

“there is a job out there for everyone,” ignoring the differences in our society in such institutions as kinship and the racial fault lines we refuse to eradicate in education and the job market. Welfare law inevitably reinforces the racialization of dependency. We have learned that the racialization of dependency has affected all poor women who are supporting children by themselves and black women in particular. All poor women with families and without a husband must confront moral judgments. But an African-American woman confronts a much heavier burden of stigmatization and moral presumption. A poor white woman avoids welfare in part because it makes her identity black. Every poor black woman is a potential welfare recipient. These judgments do not begin with welfare law, but welfare contributes to the seamless degradation that begins with inequalities of race and gender. NOTES My university-based co-investigators—Lauren Breen, Meghan Cope, George Hezel, Monica Jardin, and Kathleen Kost—have played an important role in this research, as have my collaborators from Project Dandelion, Kandee Cooper and Samantha Scott, who have been our colleagues and mentors throughout the study. I want to thank Kandee Cooper, Monica Jardin, Zaira Juarez, Kathleen Kost, Judy Munger, Rebecca Roblee, Jack Schlegel, Carroll Seron, Nancy Staudt, and Lois Weis for particularly helpful comments on earlier drafts of this essay. Thanks also to Jiangxiao Hou and Scott Jordan, my research assistants. 1. Katherine Kost and Frank Munger, “Fooling All of the People Some of the Time: 1990s Welfare Reform and the Exploitation of American Values,” Virginia Journal of Social Policy and Law 4 (1996): 3; Anne M. Cammisa, From Rhetoric to Reform? Welfare Policy in American Politics (Boulder, Colo.: Westview, 1998). 2. Joel Handler and Yeheskel Hasenfeld, Moral Construction of Poverty: Welfare Reform in America (Newbury Park, Calif.: Sage, 1991). 3. Lucy Williams, “The Ideology of Division: Behavior Modification Welfare Reform Proposals,” Yale Law Journal 102 (1992): 719; Kost and Munger, “Fooling All the People”; for a summary of the research literature see R. Kent Weaver and William Dickens, eds., Looking before We Leap: Social Science and Welfare Reform (Washington, D.C.: Brookings Institution, 1995); Michael Wiseman, “Welfare Reform in the United States: A Background Paper,” Housing Policy Debate 7 (1996): 595; Sheldon Danziger, Gary Sandefur, and Daniel Weinberg, Confronting Poverty: Prescriptions for Change (Cambridge: Harvard University Press, 1994). 4. Lawrence Mead, Beyond Entitlement: The Social Obligations of Citizenship (New York: Free Press, 1986). 5. Joanne Goodwin, Gender and the Politics of Welfare Reform: Mothers’


Dependency by Law

117

Pensions in Chicago, 1911–1920 (Chicago: University of Chicago Press, 1997); Jacqueline Jones, Labor of Love, Labor of Sorrow: Black Women, Work, and the Family from Slavery to the Present (New York: Basic Books, 1985); Kathleen M. Harris, “Life after Welfare: Women, Work, and Repeat Dependency,” American Sociological Review 61 (1996): 407; LaDonna Pavetti and Amy-Ellen Duke, Increasing Participation in Work and Work Related Activities: Lesson from Five Welfare Reform Demonstration Projects (Washington, D.C.: Urban Institute, 1995). 6. Mead, Beyond Entitlement. 7. Herbert Gans, “Culture and Class in the Study of Poverty: An Approach to Anti-poverty Research,” in On Understanding Poverty: Perspectives from the Social Sciences, ed. Daniel P. Moynihan (Basic Books: New York, 1969). 8. All names are fictitious to preserve the confidentiality of these conversations. 9. Lucy Williams, “Race, Rat Bites, and Unfit Mothers: How Media Discourse Informs Welfare Legislation Debate,” Fordham Urban Law Journal 22 (1995): 1159; Kost and Munger, “Fooling All the People”; Robert Solow, Work and Welfare (Princeton: Princeton University Press, 1998). 10. See generally Kost and Munger, “Fooling All the People.” The assumption of nondependency should be the subject of serious challenge because it is obvious that no one in our society maintains quality of life through individual effort. In the most general sense, society is a collective effort. More specifically, as Martha Fineman argues in “Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency,” American University Journal of Gender, Social Policy, and the Law 8 (2000): 13, families are a collective effort, as is the productivity of the “self-sufficient” male breadwinners who have the support of a family. Most particularly, every individual is the product of someone else’s effort to parent, nurture, and raise that individual. We tend to perceive little of this effort as productive labor, and, therefore, we are inclined to consider it to be undertaken for personal pleasure and those who perform it as “dependent” on the productive labor of others. These perceptions badly confuse dependence and independence. My research is intended to examine how individuals experience dependence and independence in contrast to our public rhetorical constructions of dependency. 11. Temporary Assistance to Needy Families was enacted as part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 104th Cong., 2d Sess., sec. 910 (1996). It is codified at 42 U.S.C. sec. 601, and includes both work requirements (see, e.g., 42 U.S.C. sec. 602(a)(1)(A)(ii)), and time limits (see, e.g., 42 U.S.C. sec. 607(a)–(d), 608(a)(9)). For a review of the law and its requirements, see Kost and Munger, “Fooling All the People.” 12. Joel Handler and Yeheskel Hasenfeld, Moral Construction of Poverty: Welfare Reform in America (Newbury Park, Calif.: Sage, 1991). 13. Judith Shklar, American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1991). 14. The argument that welfare encourages improvidence is at least as old as early English welfare but is associated by many with the work of Malthus, who argued that strict work requirements were the only cure for indolence,


118

Lives in the Law

irresponsible child-bearing, and poverty. See Philip Harvey, “Joblessness and the Law before the New Deal,” Georgetown Journal of Poverty Law and Policy 6 (1999): 1. 15. The risk that women will choose welfare when they should choose work is said to be a “moral hazard.” Many government subsidies create a moral hazard, namely the risk that recipients will change their behavior to make themselves eligible for more of the subsidy. Because subsidies are intended to induce changes in behavior, evaluation of the “moral” effects of a subsidy actually depends entirely on judgments about whether the subsidy induces too much or too little reliance. The language of “moral” hazard is misleading since in principle there is no clear threshold above which the motive for seeking an incrementally higher subsidy is corrupt rather than precisely what the law was intended to achieve. Judgments about whether reliance was too great or too little are strongly colored by political preferences; see Martha McCluskey, “The Illusion of Efficiency in Workers’ Compensation ‘Reform,’” Rutgers Law Review 50 (1998): 657. A great deal of research already suggests that the costs and benefits of welfare are a great deal more complex and create far less “moral hazard” than the reformers and the public have believed. See Kathryn Edin and Laura Lein, Making Ends Meet: How Single Mothers Survive Welfare and Low Wage Work (New York: Russell Sage Foundation, 1997); Karen Seccombe, “So You Think I Drive a Cadillac?” Welfare Recipients’ Perspectives on the System and its Reform (Boston: Allyn and Bacon, 1999); David Zucchino, Myth of the Welfare Queen: A Pulitzer Prize–Winning Journalist’s Portrait of Women on the Line (New York: Scribner, 1997). 16. David Engel and Frank Munger, “Rights, Remembrance, and the Reconciliation of Difference,” Law and Society Review 30 (1996): 7. 17. Handler and Hasenfeld, We the Poor People: Work, Poverty, and Welfare (New Haven: Yale University Press, 1996); Sheryll Cashin, “Federalism, Welfare Reform, and the Minority Poor: Accounting for the Tyranny of State Majorities,” Columbia Law Review 88 (2000): 1985. 18. Welfare law has some of the features of civil rights law because it provides benefits to a population that is assumed to have a distinct identity and to have fundamentally different needs and abilities from those who do not depend on welfare. But it is in truth an anti–civil rights law because it adds extra burdens to the lives of its target class. Welfare law also has some of the features of the law governing juvenile delinquents because recipients are assumed to be irresponsible and to require special supervision as a condition of receiving benefits. An individual cannot receive benefits under the law without acquiring a public identity as a person in need of help and supervision. 19. Martin Gillens, Why Americans Hate Welfare: Race, Media, and the Politics of Antipoverty Policy (Chicago: University of Chicago Press, 1999). 20. Handler and Hasenfeld, We the Poor People. 21. Christopher Jencks, “Is the American Underclass Growing?” in Rethinking Social Policy: Race, Poverty, and the Underclass (Cambridge: Harvard University Press, 1992); Amartya Sen, Development as Freedom (New York:


Dependency by Law

119

Knopf, 1999); Diana Pearce and Jennifer Brooks, The Self-Sufficiency Standard for New York (New York: Self-Sufficiency Standard Steering Committee, 2000). 22. Mary Patillo-McCoy, “Church Culture as a Strategy of Action in the Black Community,” American Sociological Review 63 (1998): 767. 23. Austin Sarat, “The Law Is All Over: Power, Resistance, and the Legal Consciousness of the Welfare Poor,” Yale Journal of Law and the Humanities 2 (1990): 343. 24. John Gilliom, “Welfare Surveillance, Rights, and the Politics of Care: A Case Study of (Non)Legal (Non)Mobilization,” paper presented to the Western Political Science Association, Los Angeles, 1998, 4. Gilliom is not alone in making this argument about the law. Patricia Ewick and Susan Silbey similarly suggest that the poor stand disenfranchised before the law; see “Conformity, Contestation, and Resistance: An Account of Legal Consciousness,” New England Law Review 26 (1993): 731, and The Common Place of Law: Stories from Everyday Life (Chicago: University of Chicago Press, 1998). Gilliom cites Catharine MacKinnon, “Reflections on Law in the Everyday Life of Women,” in Law in Everyday Life, ed. Austin Sarat and Thomas Kearns (Ann Arbor: University of Michigan Press, 1993) to the same effect. 25. Gilliom proceeds to tell a more hopeful story, although outside the realm of legal consciousness. He describes an alternative consciousness oriented to an ethic of care. I think the women are not so incapable or so unsophisticated as to concede the realm of the legal altogether. 26. Lawyers, who prefer to think of welfare as a cluster of potential entitlements commanding administrators to award benefits, assert not so much the rights that recipients perceive as their own right to speak like lawyers in the administrative setting. See Lucie White’s study of Mrs. G’s successful selfstyled presentation at a fair hearing, in “Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G,” in At the Boundaries of Law: Feminism and Legal Theory, ed. Martha Fineman (New York: Routledge, 1991). Other discourses are possible in the administrative setting, and they are sometimes successfully employed by welfare recipients, though they often fail. 27. Christopher Jencks, foreword to Edin and Lein, Making Ends Meet. 28. Harris, “Life after Welfare.” 29. Carol Stack and Linda Burton, “Kinscripts: Reflections on Family, Generation, and Culture,” in Mothering: Ideology, Experience, and Agency, ed. E. Glenn, G. Chang, and L. Forcey (New York: Routledge, 1994). 30. Even my attempt to describe the life course of the women in the focus group will leave the picture with enormous gaps. One reason for this is that disability, poor health, and limited education place severe restrictions on the ability of a large proportion of the poor to compete in the labor market or to manage daily life without adaptations. We have begun to take account of a limited range of such needs under the Americans with Disabilities Act. Accommodations for differences that limit access to the opportunities needed to have a minimally adequate life, let alone a full life, are now recognized as a civil right. We have not yet made the connection between this understanding of civil rights


120

Lives in the Law

and the condition of many poor persons who are not identified by any existing understanding of “disability” (Rukmalie Jayakody, Sheldon Danziger, and Harold Pollack, “Welfare Reform, Substance Abuse, and Mental Health,” typescript, 1999). A surprising number of the women I interviewed appear to fall into this group, and the incidence of invisible disabilities may be high. Several of the woman in the Dandelion group are taking antidepressants. Two of the Perry Project women, Anita Clark and Sarah Cox, have leg injuries that have interfered with their performance of low-paying jobs that require standing for long periods of time or require lifting and carrying, and Jackie James has narcolepsy. 31. Donna Franklin, “Early Childbearing Patterns among African Americans: A Socio-historical Perspective,” in Early Parenthood and Coming of Age in the 1990s, ed. M. Rosenheim and M. Testa (New Brunswick, N.J.: Rutgers University Press, 1992). 32. Handler and Hasenfeld, We the Poor People, provide a thorough discussion of the consequences of the moral politics of welfare, including incoherent policies, moral stigmatization of recipients, and blaming recipients themselves for the failure of welfare to relieve poverty. See also Frank Munger, “Immanence and Identity: Understanding Poverty through Law and Society Research,” Law and Society Review 32 (1998): 931. 33. As I argue below, welfare law reinforces social fault lines, acknowledging the racialization of poverty. The micromanagement of welfare, the moral supervision of recipients, and compulsory work requirements increased dramatically in the 1960s as urban poverty emerged as a “black” problem. These requirements, while not new, historically have received greater or lesser emphasis depending on the public’s images of recipients and their beliefs about their moral character (Harvey, “Joblessness and the Law”). Further, because poverty has become racialized, the perception of dependency is a feature of African-American poverty, not just welfare. Katherine Newman’s study of low-wage work in Harlem, No Shame in My Game: The Working Poor in the Inner City (New York: Russell Sage Foundation, 1999), proceeds from an unstated but telling assumption, namely that we must redeem the African-American poor as a class. 34. In her pathbreaking study of poor mothers in the 1970s, All Our Kin: Strategies for Survival in a Black Community (New York: Basic Books, 1976), Carol Stack notes the entrapment of poor mothers who cannot survive without assistance but who are forbidden to accumulate sufficient resources to invest in their own future. The present law makes a token effort to change the pattern by permitting personal development accounts, but it continues the same destructive pattern by permitting states to pressure families to isolate their poor and to exhaust all resources before receiving minimal assistance. 35. Edin and Lein, Making Ends Meet. 36. See Fineman, “Cracking the Foundational Myths.” 37. Leon Mayhew and Albert Reiss, “The Social Organization of Legal Contacts,” American Sociological Review 34 (1969): 9; Felice Levine and E. Pres-


Dependency by Law

121

ton, “Community Resource Orientation among Low Income Groups,” Wisconsin Law Review 970 (1970): 80. 38. William Simon, “Legality, Bureaucracy, and Class in the Welfare System,” Yale Law Journal 92 (1983): 1198. 39. Personal correspondence with the author, August 1997. 40. Ewick and Silbey, Common Place of Law. 41. W. E. B. DuBois, The Souls of Black Folk (New York: Bantam, 1989). 42. Anthony Giddens, The Consequences of Modernity (Stanford: Stanford University Press, 1990). 43. Similarly, instrumentalization of welfare reflects a double consciousness. The women are and aspire to be respectable citizens, but they are able to reconcile their citizenship with cheating on welfare to achieve independence because they know that welfare rules insure their continued dependency.

RT9239_C00.qxd

6/25/04

12:51 PM

Page ii


Labor’s Subjects Vicki Schultz

I am deeply honored to be included in the anthology Lives in the Law. When Professors Austin Sarat, Lawrence Douglas, and Martha Umphrey invited me to participate, they sent a wonderfully evocative letter suggesting some themes such a collection might address. Their letter begins, In an earlier age, it was common to say of a judge or lawyer, “He lived greatly in the law.” This locution is striking, as it suggests more than the mere notion of physical habitation—it powerfully conjures what perhaps could be called an “ontology of law,” the idea that legal practice was a form of being and that such being offered opportunities for . . . “ethical flourishing.” With characteristic eloquence, they go on to suggest some of the ways in which people live as “legal subjects,” who exist, more or less selfconsciously, within fields of possibility and constraint provided by law. The locution, “He lived greatly in the law,” is striking to me on a different level: as a description of one who was shaped powerfully by the law—or, legal practice—as a form of work. Taken in this sense, the expression conjures not an “ontology of law,” but something more like an ontology of work: the idea that occupations and callings (such as legal practice) are the sites of deep self-formation and that such sites offer rich opportunities for human flourishing (or devastation). From this vantage point, people become visible not simply as legal subjects, but also as labor’s subjects, who evolve into who we are in relation to our experiences in the world of work. Because law’s domain includes the world of work and its connection to other spheres of existence, the 123


124

Lives in the Law

prospect of who we become—as a society, and as individuals—is influenced by the laws that control the institutions that shape and give meaning to our experiences as workers. Indeed, the gendered character of the locution—not only was it “he” who lived in the law, but also “he” was one who so lived “greatly” (an observation not likely to have been made about one who was not “he”)—reminds us of what is at stake in this process. To a large extent, it is through our work—how it is defined, distributed, characterized, and controlled—that we develop into the “men” and “women” we see ourselves and others see us as being. Thus, labor’s subjects are also gendered subjects, shaped simultaneously by the same institutions into both the “workers” and the “men” or “women” we come to be. I believe that it is only by recognizing the formative power of such forces that we can imagine and invent ourselves as full human agents. In light of work’s power, it is imperative that we mobilize law to imagine, and to structure, a world in which women and men from all walks of life can stand alongside one another as equals, pursuing their chosen projects and forging connected lives. As individuals, our work provides us with a forum to realize at least some of our aspirations, to form bonds with others, to serve society, and to project ourselves into the larger world beyond our own families and friends. It also provides us with the wherewithal to sustain ourselves, economically and socially, so that we may enter into intimate relationships with the security that permits us to love (and leave) freely, without need of recompense. This world of equal citizenship, stable community, and a strong, secure selfhood for everyone is the world I believe feminism was born to bring into being. Recently, however, a number of feminists and liberals have begun to move away from such a vision; some even associate an emphasis on equal work with conservatism. Many feminist legal scholars now advocate paying women to care for their own families in their own households; they seem to have given up on achieving genuine gender integration of the work done in both households and workplaces. Some liberal thinkers urge that we provide everyone a guaranteed income or capital allotment; they believe tying the distribution of social goods to work interferes with individual freedom and choice. The presence of these discourses has moved me to articulate a feminist vision of the significance of paid work to the good life, to equality, and to women. I agree that it is vitally important to create society-wide mechanisms for


Labor’s Subjects

125

allocating the costs of household labor and for allowing people to realize their preferences. But, unless we pay attention to the institutional contexts through which housework is valued and individual choice formed, stubborn patterns of gender inequality will continue to reassert themselves—including the gender-based distribution of work that is at the root of women’s disadvantage. In the search for social justice, separatism simply won’t suffice. This is an enormous subject, and I cannot hope to do it justice here. I will sketch, in a very preliminary way, four key themes. 1. The first is that we are shaped deeply by our work. Our perceived capacity for citizenship, our sense of community, and our sense that we are of value to the world all depend importantly on the work we do for a living and how it is understood by the larger society. In everyday language, we are what we do. 2. Yet our society has been slow to understand this fundamental feature of socialization to be true for women (as it is for men). Our view of women’s needs and desires has been distorted by family-wage ideology, “the sex-gender system that prescribes earning as the sole responsibility of husbands and unpaid domestic labor as the only proper long-term occupation for women.”1 Family-wage thinking has left us with the mythologized but misleading image of women as creatures of domesticity—but not of paid work. Indeed, important strands of economics, antidiscrimination law, and feminist legal theory have perpetuated the view of women as inauthentic workers. Contrary to this view, I will argue that paid work is crucial to women, to equality, and to the feminist agenda. I believe it is time to move beyond familywage thinking and invent a more egalitarian path for our future that builds on a foundation of equal work for everyone. We must push for strategies that promote gender integration across both paid and unpaid work in order to improve the lives of all women, men, and children. 3. Indeed, social justice now demands our attention to work, because the conditions of work are changing profoundly in ways that threaten the social and political order for all but those at the top. As multinational corporations seek more flexible forms of production and labor, more people than ever face greater job insecurity and less ability to shape their lives around a coherent narrative involving steady work. Many middle-class white men now confront problems similar to those women and less privileged men have long faced. 4. These trends present deep challenges, but they also provide


Lives in the Law

126

the opportunity to reshape social life by focusing on work. Some have suggested that we should abandon our historic emphasis on work and create alternative paths to the good life. But paid work is the only institution that can be sufficiently widely distributed to provide a stable foundation for a democratic order; it is also one of the few arenas in which diverse citizens can come together and develop respect for each other due to shared experience. Ordinary citizens understand the significance of work very well. Over the past thirty years, people from all walks of life—racial minorities, the poor, women of all races, the aging, and people with disabilities—have demanded equal work, for themselves and for the sake of their children. But employment discrimination law alone will not get us where we need to go. This body of law is simply not capable of generating the structural transformations necessary to create the conditions in which work can provide a basis for equal citizenship for all. To move forward, we must craft a new language for articulating why work matters. We must remake our laws and culture to create a world in which everyone has the right to participate meaningfully in paid work, with the social support necessary to do so. We must demand the conditions for work that is sustainable over the course of a lifetime and is consistent with egalitarian conceptions of care and civic commitment. The Importance of Work In the United States (as in most Western nations), work has been fundamental to our conception of the good life.2 Citizenship Work has been central to our notion of citizenship. Theoretically and historically, what we have called for in citizens is the perceived capacity for “independence.”3 This, in turn, has been linked to the capacity to earn one’s own living.4 With the transition from an agricultural to an industrial economy, the conditions for securing a living changed, and so did the material basis for independence. As America transformed from a nation of small proprietors to a nation of wage earners, the image of a rights-bearing citizen changed from one who owned a farm or family business to one who went out to work for someone else. This shift entailed a transvaluation of both citizenship and labor: With the


Labor’s Subjects

127

enfranchisement of men who lacked property, the independence associated with political virtue no longer resided in owning productive property, but instead in owning the right to sell one’s own labor.5 This shift created a complex legacy. On the one hand, the abolition of slavery and the establishment of paid work as the foundation for citizenship reinforced the market-oriented definition of self-ownership that became the cornerstone of laissez-faire ideology: Freedom of labor became associated with freedom of contract, an association that limited rights for working people.6 In addition, the “independence” of newly enfranchised wage earners drew on an image of “dependence,” not only of slaves but of all women, whose work in the home freed men to participate in wage work in the hours demanded by the new industrial order.7 At the same time, the shift to wage labor created a public rhetoric that acknowledged the dignity of labor and, by extension, of all working people. As “freedom to work” became more important than “freedom from work” as a cultural ideal, even a menial laborer could feel equal (if not superior) to patrician nonproducers.8 Thus, even as it fed on a market definition of free labor, the turn toward wage labor carried a subversive potential for a more expansive conception of rights. Because, at least theoretically, anyone could work for wages—including women—paid work opened up the possibility of a more universal platform for political rights. If women and youth could work in factories, earning and keeping their own wages, over time this might erode the patriarchal authority of the male head-of-household in both the home and the polity. Finally, of course, for both men and women, working for someone other than one’s kin freed people to organize collectively to improve their situation. “Free labor was wage labor,” insisted Samuel Gompers, “and should organize as such, seeking security of employment and favorable wages and working conditions, not the utopian dream of economic autonomy.”9 As the corporation replaced the independent producer as the driving force of the economy, independence came to mean control over the conditions and compensations for work rather than self-employment, and paid work became the foundation for citizenship. Of course, the promise of equal citizenship grounded in paid work has not been realized. Still, diverse social movements have struggled to make good on that promise. At crucial times in our history (including the New Deal), the labor movement, the civil rights movement, and strands of the women’s movement have championed an affirmative


Lives in the Law

128

concept of the right to work as the basis for a robust, equal social citizenship.10 Community Just as paid work has been a crucial component of citizenship, it has also been an important building block for community. Not only does working for a living provide people with the sense of belonging and contributing something of value to a group larger than ourselves or our loved ones; the rhythms, the social relationships, and institutions of work also provide important foundations for community stability. For the privileged among us, it is easy to take for granted—indeed, not to notice—the shoring up of our neighborhoods and networks that flow from the fact that we and our friends and fellow residents go to work each day. But social scientists such as William Julius Wilson have begun to make this process visible. When work disappears, the neighborhood institutions that sustain social integration and strengthen the capacity to socialize children also tend to crumble.11 As Wilson puts it: [W]ork is not simply a way to make a living and support one’s family. It also constitutes a framework for daily behavior and patterns of interaction because it imposes discipline and regularities. Thus, in the absence of regular employment, a person lacks not only a place in which to work and the receipt of regular income but also a coherent organization of the present—that is, a system of concrete expectations and goals. Regular employment provides the anchor for the spatial and temporal aspects of daily life. It determines where you are going to be and when you are going to be there. In the absence of regular employment, life, including family life, becomes less coherent.12 Wilson shows that, like the residents of Marienthal, Austria, who were studied in 1930 when their factory shut down, many inner-city residents who lack access to steady jobs have become politically and socially inactive as they have lost a sense that they can be efficacious in the world. This does not mean that the unemployed no longer believe in the values of work and discipline; it means only that with the loss of opportunity for stable employment and community institutions, they


Labor’s Subjects

129

have difficulty holding on to the belief that they can realize those values in their own lives.13 Poor inner-city people are not the only who withdraw from community life when they lose their jobs. In sociologist Richard Sennett’s book, The Corrosion of Character, middle-aged, affluent white men who were “downsized” from their jobs as IBM programmers similarly withdrew from civic life. “Formerly town aldermen and school board members, they have now dropped out from pursuing these offices. They aren’t afraid of holding up their heads in the community, since so many people in . . . town have been dismissed by IBM or suffered financially as shop owners or tradesmen from the shakeup. They’ve just lost interest in civic affairs.”14 Nor is such a loss of self simply a male phenomenon. Amartya Sen cites evidence that unemployment is particularly hard on young women, who may experience even more severe problems of self-esteem and demoralization (as well as a more difficult time reentering the labor market) than their male counterparts.15 There is also extensive evidence that mature women who are not employed suffer greater problems with self-esteem—as well as higher levels of depression and other serious health problems—than do working women.16 Identity All of this underscores the third point, which is the importance of work to our aspirations and identity. Rosabeth Moss Kanter opens her classic book Men and Women of the Corporation by noting: The most distinguished advocate and the most distinguished critic of modern capitalism were in agreement on one essential point: the job makes the person. Adam Smith and Karl Marx both recognized the extent to which people’s attitudes and behaviors take shape out of the experiences they have in their work.17 Kanter goes on to show, in brilliant detail, how jobs create people. In her account, people adapt their actions—indeed, even their hopes and dreams and values—to function as well as possible within the parameters established by their work roles. There is the manager whose need for trust in an organization that cannot eliminate uncer-


130

Lives in the Law

tainty leads him to hire others just like him; yet exercising such social conformity in the selection process undermines the very idea of a meritocracy on which the corporation and the manager’s own legitimacy is founded. There is the secretary whose higher-ups reward her for loyalty and “love” rather than performance; yet exhibiting the very traits and behaviors expected of such a loyal subject—timidity, emotionality, parochialism, and praise addiction—undermines the secretary’s perceived professionalism and, hence, her ability to move upward within the organization. There is the corporate wife who is expected to advance her husband’s career and serve the corporation faithfully; yet, if she does so effectively and well, her increasing “public” visibility will threaten the insider/outsider distinction on which her exclusion from the formal paid workforce is premised, while at the same time compromising her ability to relate to people in the corporate circle in a “private” noninstrumental way. The process of adapting ourselves to our work roles does not stop at the office door or factory gate. As human beings, we are not purely instrumental, and we don’t easily compartmentalize—and file away until the next day—the selves we learn to become during working hours. In fact, most of us spend more time working than we do at anything else. So, it should not be surprising that the strategies we use to make it as workers become infused into our behavior, thoughts and feelings, and senses of ourselves—our very beings—with real spillover effects on our so-called private lives.18 Consider one of my favorite films, The Remains of the Day.19 Anthony Hopkins plays Mr. Stevens, the head butler to an English nobleman, Lord Darlington. Stevens’s tragedy is that he so faithfully adheres to the ethic of steadfast, loyal service to his master (and, he believes, his nation) that he cannot even question, let alone condemn, the lord’s deepening collaboration with the Nazis, which ultimately disgraces the estate. At the same time, Mr. Stevens’s self-effacing, dignified service as a butler so suffuses his sense of self that he cannot bring himself to even feel, let alone express, his growing love for the house’s headmistress. A great butler, he is caught in a dilemma of duty that tragically undermines his capacity to serve his master or even his own heart in a deeper, fuller way. Although there is tragedy in this account of work’s influence, there is also reason for hope. If people’s lives can be constrained in negative ways by their conception of their occupational roles, they can also be


Labor’s Subjects

131

reshaped in more empowering ways by changing work or the way it is structured or understood. One powerful set of stories comes from women who entered the skilled trades in the 1970s, when affirmative action opened nontraditional careers to women for the first time. When these women were stuck in low-paying, dead-end jobs, they showed no real commitment to work. But when new lines of work opened up to them, many women aspired for the first time to take up jobs they had never previously dreamed of doing.20 Although many of the women took their new jobs out of financial need, the jobs quickly became more than a paycheck; the women felt they had come into their own at last.21 For many, the positive effects of their new work roles on their selfesteem permeated their identities, and they found the courage to change and grow in other aspects of their lives.22 Thus, it isn’t only business-school types and filmmakers who have stressed how important our work is to our identity. Ordinary folks have said so in their own words, as Studs Terkel’s marvelous oral history of working people reveals. Terkel’s subjects confirm that work takes a lot out of us. “This book, being about work is, by its very nature, about violence—to the spirit as well as to the body. . . . It is, above all (or beneath all), about daily humiliations.” Yet, work also provides the foundation for our dreams: “It is about a search, too, for daily meaning as well as daily bread, for recognition as well as cash, for astonishment rather than torpor; in short, for a sort of life rather than a Monday through Friday sort of dying.”23 For better or worse, the people in Terkel’s book—like people everywhere—testify that work matters. Whether they feel beaten down by it, bored by it, or inspired by it, it affects who they are profoundly. The truth of this insight is captured in everyday life. We ask someone, “Who are you?” and they answer, “I’m an autoworker” or “a nurse.” Most fundamentally, people define themselves in terms of the work they do. The Domestication of Women That idea that work shapes identity may not be that controversial when applied to men who work in high-status occupations. As the saying goes, the job makes the man. Yet we almost never assume that the same is true of women. Despite women’s presence in the paid labor force in overwhelming


Lives in the Law

132

numbers, we still tend to see women as inauthentic workers. In the conventional conception of gender identity, women are first and foremost committed to domesticity—as wives, mothers, daughters, sisters, general nurturers and providers of care and cleanup. Some of the time, this connection is portrayed as natural and essential, either biologically endowed or so deeply ingrained in our psyches that it would be almost impossible to change. In other theories, it is learned through early childhood socialization or constructed through mass culture (such as the media). But even in the versions in which women’s attachment to home and hearth is seen as acquired rather than given, the point is that it is firmly in place long before women ever begin working (or searching for work). Of course, if women’s domestic orientation is fixed by the time we enter the labor force, then women’s actions, aspirations, and self-understandings cannot and will not change much in response to our experiences in the world of paid work.24 Thus, in the conventional view, working neither creates—nor offers any hope of relief from—the material and other disadvantages that mark women’s lives. Human Capital Theory The starkest example of this thinking is found in human capital theory in economics. In Gary Becker’s work, for example, women’s disadvantaged position in the workplace stems not from discrimination, but from the voluntary choices that flow from their alleged “comparative advantage” at housework and child care.25 Because women are better than men at these tasks, Becker contends, women look for jobs that more easily accommodate “our” responsibility to perform them. In the older versions of human capital theory, this meant looking for jobs with lesser penalties for discontinuous employment, so that women could move in and out of the workforce to raise young children; or, looking for jobs with higher starting wages but lower rates of appreciation, so that women could earn relatively more in our early years of working, before they dropped out of the workforce altogether.26 In the face of embarrassing evidence that traditionally female jobs do not penalize women less for discontinuing or dropping out of the labor market— indeed, Paula England’s work suggests that women’s jobs pay less than men’s do at every stage of the life cycle27—Becker added another refinement. In order to conserve energy for family duties, he speculated, women look for jobs that require less effort. Because such jobs are overcrowded or because those who do them are less productive, the


Labor’s Subjects

133

jobs pay less. As a result, women earn lower wages than men, which only increases the incentive for the couple to invest more in the man’s skill in connection with paid work, while allowing the woman’s “human capital” to stagnate as she becomes more specialized in running the household.28 There are a number of problems with this theory, not least of which is a lack of empirical support.29 Sociological research suggests that the gender gap in pay is attributable to the fact that women work in separate-but-unequal fields, firms, and jobs30 (and even to the fact that they are paid less than men in the same jobs)31—not to the fact that women have more family responsibilities. Women do bear a heavier family load, but this family load does not account for job segregation or the accompanying wage gap: Research shows that a woman’s likelihood of moving in or out of a male-dominated or female-dominated field, or holding such a job at any given time, does not vary significantly based on her marital status, parental status, or number of children.32 Contrary to human capital predictions, women are not selecting female-dominated fields to accommodate family responsibilities. In fact, female-dominated jobs are not on the whole more family-friendly than male-dominated jobs; this is part of the myth that justifies paying women lower wages, an inaccuracy that pay equity advocates have been struggling for so long to dispel.33 Nor, as Becker has more recently suggested, is the gender gap in pay explained by the fact that women look for jobs that require less effort in order to conserve energy for “our” family responsibilities. In fact, Denise Bielby and William Bielby have found that on average, women report working harder than men (despite women’s general tendency to underestimate their achievements or degree of effort). Women with preschool age children do work less hard than other women at their paid jobs, but they still work as hard as men without children—who earn considerably more.34 More recent analyses confirm these results and find that overall, the impact of household and family arrangements on work effort and work commitment is nonexistent or small.35 Thus, women’s heavier family obligations are not driving job segregation. Indeed, causation may well run in the reverse direction: Women may take on more housework and child care because they are segregated into lower-paying jobs—a position that deprives them of the ability to demand more egalitarian arrangements for household labor.36 These empirical problems point to fundamental theoretical problems with human capital theory. The theory centers around the claim


Lives in the Law

134

that a gender-based division of labor is more efficient than one in which the partners share both roles, but the theory says nothing about why it should be women rather than men who specialize in housework. Becker simply appeals to women’s alleged comparative advantage. But beyond nursing babies (a temporary phenomenon that many women cannot do or decline to do anyway), it is difficult to see why women have any inherent advantages at housework or even child care, unless one appeals to unproved notions that they are more relational or nurturing than men and as a result are better at caring for others.37 So the theory ends up being circular: To explain why women earn lower wages, the theory says it is because they specialize in housework. Yet there is nothing to explain why they specialize in housework other than the fact that they are female. Even if women were somehow naturally better than men at caring for others (which there is reason to doubt), that would still not explain why women should ply that skill in the home rather than in the paid workplace. After all, many forms of care can be (and are) bought and sold in the marketplace, just like other services. Women’s specialization in unpaid, home-based care only makes sense if the men with whom they share resources can make more money selling something other than the care Becker assumes women are better at providing. Imagine a world, for example, in which women were superior at child care, but child care was organized as market work and paid more highly than any other field. Under Becker’s theory, wouldn’t we expect to see women out earning money providing child care for other people’s children (in addition, perhaps, to their own), while in heterosexual partnerships, male partners specialized in less-marketized forms of household work (perhaps odd jobs)? The point is that, once again, Becker’s theory is circular: It sets out to explain why women earn lower wages, but ends up assuming the very gendered wage structure it purports to explain. The theory says women earn lower wages because they specialize in housework. But there is nothing to explain why housework is organized as unpaid labor as opposed to highly paid market work other than the fact that it is women who do it. Employment Discrimination Law This sexist line of reasoning is not confined to human capital theory: It is also invoked regularly in legal discourse. Indeed, it is precisely the underlying image of women as inauthentic workers that pervades and


Labor’s Subjects

135

constantly subverts women’s gains from employment discrimination law—the body of law that was supposed to guarantee gender equality at work. In cases in which working women seek to challenge their place in low-paying, dead-end jobs—such as the infamous EEOC v. Sears, Roebuck & Co.38 case—employers argue, and courts all too often accept as an excuse for job segregation, that women “lack interest” in the higher-paying, more desirable positions held by the men.39 Sometimes this argument draws explicitly on human capital theory; sometimes, it draws on less formalized notions that women have been hardwired by nature or programmed through nurture to prefer “feminine” forms of work.40 Whatever the causal mechanism, in this account, women’s work preferences—their very understandings of themselves and their place in the world as women—are seen as fixed by forces that are ontologically and temporally prior to women’s experiences in the world of paid work. Thus, women’s unequal place in the workplace has nothing to do with the workings of labor markets or firms; employers simply honor women’s own preconceived preferences.41 As I have shown in more recent work, even sex harassment law centers around a stereotype of women as people who are only secondarily workers.42 In my view, some men harass women because they see as workplace rivals. They intimidate and isolate women as a means of appropriating the best forms of work for themselves; doing so ensures their superiority in politics, the household, and other spheres of life. This theory takes seriously women’s position and potential power as workers and shows how men seek to control it in order to promote their own advantage elsewhere. But this is not the conventional legal understanding of sex harassment.43 In the conventional view, men are understood to harass women because they see women as sexual subordinates, a habit they allegedly acquired in the inegalitarian domestic sphere but which “spilled over” inappropriately into the neutral, ungendered world of work.44 Once again, in the usual view, gender is created in the domestic sphere; the workplace is merely a passive reflector of inequalities already formed elsewhere.45 Constructed this way, women’s disadvantage is domesticated. Feminist Legal Thought This failure to take women seriously as workers is such a deeply ingrained part of our history that it permeates our culture, our institutions, and our thought—including some strands of feminist thought.


136

Lives in the Law

Like employment discrimination law, a good deal of contemporary feminist legal thought has conceived of gender in terms of male-female relations constructed primarily (if not exclusively) through traditional heterosexual family and/or sexual relations. To the extent that work enters into the analysis, it is seen as secondary. Patriarchal family/sexual arrangements are understood to overflow into the realm of paid work by burdening women with special family obligations or unique sexual vulnerabilities that constrain our full commitment to working life. Consider, for example, the current movement among some legal feminists (mostly family law scholars) to assign economic value to housework, child care, and other labor that people provide for their loved ones in their own homes.46 This is a movement motivated by good intentions, including the feminist impulse to honor and value what women do. Feminists in this movement do not wish to naturalize the gender-based division of labor; their stated goal is to expose and remedy it. Yet, in the service of such worthy goals, some in this movement promote analyses and policies that reproduce the very genderbased patterns of labor that create women’s disadvantage. Following human capital theorists, for example, some feminist scholars argue that women’s economic disadvantage arises from their primary commitment to their families—rather than from sexist dynamics in labor markets and firms. From there, the feminists propose reforms to value “women’s” domestic labor, just as women do “men’s” wage labor, in an effort to compensate women for child care and housework.47 No self-respecting feminist could be against valuing housework, and I’m no exception. But that slogan obscures a host of troubling institutional questions about how this should be done. It is vitally important to acknowledge the hidden labor that is performed in households, and to create society-wide mechanisms for allocating its costs rather than continuing to impose them on individual family members (too often, women).48 One method of doing so is already being implemented on a massive scale: sharing housework with others by converting it into employment. A great deal of work once performed in private households has been handed over to day care providers, cleaning services, home health aides, landscapers, and the like.49 Feminists could think creatively about how to capitalize on this trend by supporting efforts to upgrade the pay, promotional prospects, and working conditions associated with work once performed by at-home spouses. By transforming at least some forms of household work into paid employ-


Labor’s Subjects

137

ment, we could more easily protect those who do the work from discrimination, unfair labor practices, wage and hour violations, adverse working conditions, health and safety threats, and other problems on the job.50 We could also make it easier for those who perform household labor to engage in collective action to improve their situation.51 Converting household work into paid employment not only provides jobs for many people who need them, it also frees those who provide unpaid family labor to pursue more fully for pay the work that suits them best. Countless middle- and working-class families buy time or convenience by purchasing such things as child care, cleaning services, dinners from McDonald’s, lawn mowing, haircuts, car repair, and other services that should count as commercialized forms of household labor.52 There may, of course, be some forms of household labor that cannot or should not be commodified.53 There may also be some services that average- or low-income people cannot afford. But there is no reason why a commercialization strategy must be limited to pure market forces. Some services could be subsidized for those who cannot afford them, or even made available for free to everyone (like public schooling, a now universal service that was once provided exclusively within the family setting). Despite the fact that converting household labor into paid work spreads the work around and renders it more visible and publicly accountable, many legal feminists in the movement to value housework shun this approach.54 Instead, they are proposing schemes to compensate women for performing household labor in their own homes. Some argue that (heterosexual) women’s household labor provides their male partners with the time and resources to specialize in market work, and thus the men should compensate the women.55 These feminists propose marriage-based “joint property” schemes that redistribute income from husbands (or sometimes higher wage-earners, assumed to be husbands) to wives (or lower wage-earners, assumed to be wives) at divorce.56 Other feminists promote state-based welfare strategies in which the government pays caregiver stipends that are not tied to paid employment but are instead intended to permit women to choose full-time or near full-time homemaking and child care.57 In joint-property proposals the source of funding is the husband, while in welfare approaches it is the state. But both strategies channel funds through the family unit to pay women to keep house and care for our own kin. These family-based approaches replicate many of the same conser-


138

Lives in the Law

vative assumptions that traditionally have justified women’s disadvantage. In fact, many of these feminists adopt the human capital explanation for women’s economic disadvantage. They assume it is women’s disproportionate responsibility for housework and child care that accounts for our inferior position in the workforce.58 Unfortunately, many feminists in this camp seem unaware of the sociological work that casts doubt on human capital theory.59 Within the social sciences, the debate is between conservative economists—who pin women’s plight on their own decisions to assume more traditional family roles, and feminist sociologists (and sociologically minded economists)— who have labored to show that discriminatory dynamics in the work world are a more fundamental cause.60 Indeed, sociological work points toward a more deconstructionist approach that refuses static conceptions of women’s family-based “difference” and shows instead how structural features of labor markets and workplaces (including discriminatory selection policies and wage scales, hostile work environments, sex stereotypes and in-group preferences, and exclusionary informal norms) create the very gender differences (in job aspirations and patterns of family labor) that human capital theory attributes to women themselves. Thus, to characterize this struggle as one between equal-treatment and difference feminists, as some in this movement do,61 overlooks a more transformative feminist perspective that views gender difference as the product of structural influences in labor markets and firms— including social relations between men and women at work.62 This perspective opens up possibilities for change. If the sources of women’s disadvantage lie not in sociobiological forces that commit women more heavily to child care and housework but instead in the political economy of paid work, we can challenge the sex bias in allegedly genderneutral forces in labor markets and workplaces. We can create more empowering gender arrangements by demanding work and working conditions that will give women more economic security, more political clout, more household bargaining power, and perhaps even more personal strength with which to pursue our dreams. In the movement to value home-based labor, by contrast, some of the literature tends to reify dominant male-female breadwinner-homemaker patterns in a way that closes down, rather than opens up, strategies for change. Much of the literature assumes that housework is now


Labor’s Subjects

139

and will continue to be largely “women’s work.”63 To explain why this is so, scholars sometimes posit that women care more about domestic concerns,64 or that, because of cultural standards that work against them in the “marriage market,” women find it almost impossible to obtain the bargaining power necessary to enlist men in a more egalitarian division of labor in the home.65 Although these sorts of arguments may be intended to avoid the biological reductionism implicit in Gary Becker’s notion of comparative advantage, they still serve the same disturbing, essentializing function: By making traditional male-female patterns around housework seem inevitable, they make it seem impossible to reshape social life so that everyone could participate in households and other spheres of life in more egalitarian ways. Instead, the only viable approach becomes the separate-but-equal strategy of compensating women to do housework—while leaving unexamined the broader structures of political economy that deprive women of the bargaining power necessary to obtain a more egalitarian sharing of household labor in their private relationships, and that prevent both women and men from forcing the political system to provide the kinds of public support necessary for all of us to achieve more balanced lives. A more dynamic approach would investigate whether there have been shifts toward greater male involvement over time or in some households and, if so, what factors seem to have made the difference. There is evidence, for example, that households in which women are employed have a more equitable division of labor than those in which women are not employed.66 In addition, numerous studies have found that the greater the number of hours a woman works at her job and the higher her earnings are relative to her husband’s, the more likely it is that they will share household labor more equally.67 Contrary to popular stereotype, moreover, working-class husbands do not do less housework than their more educated, middle-class counterparts.68 Thus, for many women, throwing oneself into paid work and choosing a partner who works reasonable, flexible hours—a strategy that has been called “marrying down,” but which I think feminists might refer to more profitably as “coupling up”69—might help achieve a more equitable division of household labor. In fact, some of the sociological literature provides evidence that things are moving in a more egalitarian direction, at least in some households:


140

Lives in the Law Recent studies have . . . begun to identify specific areas, such as child care, for which men’s contributions have increased substantially. A few studies have even found that the total number of hours spent on all paid and unpaid labor (not including child care) is now about equal between husbands and wives. . . . In general, American women are still likely to spend fewer hours than men on the job, and American men are likely to put in fewer hours than women on domestic labor, but the total number of hours is converging.70

There is evidence that variation among heterosexual couples is increasing, with some men now making much larger contributions to family work.71 In one recent study, for example, a quarter of the men spent more time in household tasks than their wives, and an equal number of the women spent more time working for pay than their husbands.72 Thus, focusing exclusively on mainstream tendencies may mask significant variation and change. Over the past three decades, it seems clear, many men have become committed to leading more balanced lives that include active care for their homes and families—despite the fact that employers may penalize men more than women for doing so. A recent study found that among Stanford graduates, for example, working men who did 50 percent or more of the household work paid a substantial earnings penalty, compared to other working men.73 By contrast, among women who did half or more of the housework, only women who worked part-time paid an earnings penalty. Contrary to human capital predictions, women who worked full-time paid no earnings penalty for doing most of the housework or for being mothers, compared to other women. Despite the wage penalty they encountered, the Stanford husbands who shared housework equally were happy with their household division of labor. Perhaps surprisingly, the men who shared family tasks equally with their wives were just as satisfied with their arrangements as the men whose wives did all or more than half those tasks (about 85 percent of each group, even among couples who had children). But the wives of egalitarian husbands were significantly happier than the wives who did more housework.74 These findings are consistent with more recent research, which suggests that it is not the absolute amount of housework but the inequity in the division of labor that contributes the most to women’s unhappiness.75


Labor’s Subjects

141

This research casts doubt on the wisdom of family-based strategies that posit—or promote—the continuation of a traditional division of labor. Joint-property proposals, for example, share with human capital theory the assumption that the home and the workplace are separate realms in which people can invest their energies, and that most women are heterosexuals who have male partners who will support them adequately through wage work while they specialize in home production. But these are mythical assumptions. Male-breadwinner families are now the province of a fairly small group of people.76 In two-thirds of married-couple families with children, both the women and men work for a living.77 And, of course, families headed by only one adult are on the rise, with female-headed households representing almost a quarter of all families with children in 1994.78 In addition, same-sex couples have become more visible (if not more prevalent).79 These changes mark the end of the traditional male-breadwinner/female-homemaker family. Today, at any given moment, more women (and men) live outside the bonds of traditional marriage than at any previous time in American history.80 In the face of these trends, it is futile to attempt to revive the family-wage system by attempting to get individual men to pay their female partners for taking care of the house and children. Nor should feminists desire such a revival. The truth is that women cannot specialize in housework at the expense of paid employment. The overwhelming majority of women need and want to participate in both spheres at the same time. This is not an irrational choice or one made simply out of financial need. A large body of literature suggests that working women are better off than full-time homemakers in terms of physical and psychological well-being (to say nothing of economic well-being). For women, time spent on housework, and an unequal division of household labor, are associated with higher levels of depression,81 anxiety, and other symptoms of psychological distress.82 Not only is there evidence that full-time homemaking can be detrimental; there is also affirmative evidence that paid work has positive health effects on women (as on men). Rosalind Barnett and Caryl Rivers review this literature in their book She Works, He Works.83 They cite a national longitudinal study, for example, that found that women who participated in both paid work and family roles reported better physical health and fewer emotional problems than nonemployed women.84 In the same vein, a three-year study of 745 married women


142

Lives in the Law

also found that working women had better emotional health than those who are not employed.85 According to Barnett and Rivers: The research is proving conclusively that paid work is good for women. In scientific research, the more that findings can be replicated, the more reliable they are; and these findings dovetail with many other studies, including the one that was the basis for our previous book, Lifeprints. Funded by the National Science Foundation, it studied 300 adult women and showed that working women are significantly higher in well-being than non-employed women. Research clearly shows that work offers women a chance for heightened self-esteem, a buffer against depression, and enhanced mental and physical health. And this isn’t just true for women in high-powered jobs. Working-class women get the emotional and physical benefits of working, according to psychologists Sandra Scarr and Deborah Phillips of the University of Virginia and Kathleen McCarney of the University of New Hampshire: “Surveys of working class mothers, with jobs as waitresses, factory workers and domestics, show that these women are quite committed to their jobs, satisfied with their diverse roles, and would not leave the labor force even if they did not need the money.” Work, they say, offers these women adult companionship, social contacts, and connection with the wider world that they cannot get at home.86 Sociologist Myra Max Ferree, a leading researcher in this area, confirms these results for working-class women. She has found that even “among working-class women, being employed is associated with greater happiness.”87 Indeed, “working-class women are not ‘more satisfied’ with full-time housework,” whether they are compared to working-class employed women or to middle-class housewives.88 Thus, contrary to an argument that is sometimes made by legal feminists,89 “The inference that the demonstrably less attractive jobs potentially open to a working-class woman would make her more likely to appreciate staying home is clearly undermined by the data.”90 For those of us who study work, such findings are not surprising. Housework may offer some autonomy, but that autonomy is offset by isolation from peers, the inherent monotony and repetitious quality of some aspects of the work, and a lack of control that comes from feeling that one is always “on call.”91 Indeed, if one compares housework to


Labor’s Subjects

143

other jobs, it becomes apparent that full-time homemaking is the only job in which the worker is expected to be on duty twenty-four hours a day. Our labor laws prohibit this for all other forms of work, and with good reason: All of us need relief not only from sheer overwork, but also from the pressure that comes from having no other activity with which to buffer ourselves from the stress of any endeavor. This may explain the research showing that the greatest benefits accrue to women (as well as men) who combine paid work with family commitments.92 Acknowledging the benefits of multiple roles does not mean denying that most women (and many men) experience an overload associated with the double day. But it does suggest that feminists should not focus exclusively on the hardships associated with juggling work and family: We should also be mindful of the rewards.93 It also suggests that feminists should be wary of paths to valuing housework that encourage women to concentrate on housework and child care at the expense of making a deep commitment to paid work. In light of the importance of earning to citizenship in women’s history, solutions that focus on spousal income-sharing inevitably cast the higher-earning spouse as the “boss,” and the homemaker (or the lowerearning spouse who does most of the housework) as the employee—a difficult enough dependency relation made worse by the fact that in this context, the “employee” is stripped of the social recognition, the peer solidarity, and the potential for collective organizing that have characterized employees in traditional paid workplaces. As Rhona Mahoney has emphasized, women are better off if they bring to their private relationships an independent means of economic wherewithal and social support that can provide women with an external source of bargaining power, an alternative avenue for self-esteem and solidarity, and a credible (and real) potential for exit.94 Although some feminists oppose a cooperative strategy because they believe it promotes class bias,95 joint-property proposals merely introduce a different—and potentially more troubling—form of class bias. As Martha Fineman has emphasized, such marriage-based approaches fail to provide for those who perform housework outside the bonds of the traditional heterosexual family96—never-married mothers, or gay and lesbian partners, for example—who are a growing proportion of all families. Although this is a heterosexist omission, it is a class-based omission, as well: Never-married mothers face the highest burdens of care and have among the lowest level of resources of all


144

Lives in the Law

demographic groups; lesbian couples, too, earn less than their heterosexual counterparts.97 Even for the married women who are included in its scope, the joint-property proposal provides a class-biased compensation schedule. The wife of a high-level executive who gets one-half the executive’s earnings for caring for the house and kids is paid much more than the wife of a minister, even though both wives may be doing essentially the same work. The executive’s wife would also earn much more than her own paid household workers, who may do just as much work. Joint-property proponents sometimes defend that wives be paid at a rate higher than paid housekeepers on the ground that household workers are underpaid98 (which, of course, they are). But the solution to this problem lies in collective measures such as unionization, affirmative action, pay equity, and wages subsidies for low-wage workers—not in legitimating the class differential between domestic workers and homemakers by paying the latter more for the same services. Ultimately, then, marriage-based solutions for valuing housework tend to replicate the same old class-based, family-wage system venerated by conservatives. Joint-property proponents argue that collectivizing housework creates class divisions between the women who hire out household work (and they do assume that it’s women, not men, who do the hiring out) and the women who do such work for a living.99 But, in reality, this strategy has the potential to promote solidarity among these two groups of women, because working for a living provides each group with a common set of experiences that may bridge class differences and allow them to identify with each other as working women.100 At times in our history, such cross-class alliances between women (and men) have occurred and produced powerful results.101 By contrast, the family-wage system upon which joint-property proposals build was characterized by striking class-based divisions among women. As many historians have emphasized, the ideology of domesticity reconciled middle- and upper-class homemakers to their position by encouraging them to feel superior in class, race, and gender terms to women who worked for a living—who were not considered “true women.” At the same time, the ideology of domesticity justified the exploitation of immigrant, African-American, and white working-class women as the predictable, even deserved, fate of those who dared to venture out of the proper feminine sphere into the world of wage labor.102 By encouraging middle-class women to create identities based primarily in motherhood and domesticity at the expense of paid work,


Labor’s Subjects

145

contemporary joint-property proposals hark back to these nineteenthcentury ideologies. Joint-property proposals are not alone in risking the reproduction of the gender-based division of labor. Traditional welfare strategies, which are rooted in the same family-wage system as joint-property proposals, may also do so (depending on how they are framed). Jointproperty approaches rely on individual breadwinners to fund household labor, while welfare strategies rely on the state. Shifting the locus of responsibility to the state is advantageous because it frees women from the demands of individual men and sheds the most obvious form of class bias by funding housework at a uniform level for all who do it. Nonetheless, by paying women to stay home with their children rather than providing real support for parents (especially single parents) to work at paid jobs, welfare strategies still encourage women to invest in homemaking to the exclusion of their job skills—which may harm women and their families in the long run. For this reason, in the wake of recent changes to the traditional Aid to Families with Dependent Children (AFDC) system, a number of feminists are proposing alternatives designed to enable low-income mothers and fathers to participate in parenting and paid work at the same time—and to improve the status of the work they do. Feminist economist Barbara Bergmann, for example, has criticized the traditional AFDC program for creating a disincentive to employment that hurts women in the long run.103 She advocates a system more like the French one, which provides generous, high-quality child care that allows parents to work at paid jobs. In France, according to Bergmann, a single mother who takes a job can do far better than her American counterpart—or even than her French counterpart who stays home full-time to care for her children. In addition to receiving a comparatively higher wage than in the United States (due to a higher minimum wage), the French mother who goes to work will not lose her health insurance, and she will pay little or nothing for high-quality child care that is coveted even by the middle classes. In France, says Bergmann, “a single mother and her children do not have to live in poverty. With a job, she can support them at a decent standard.”104 Furthermore, as Bergmann points out, paying single mothers to care for their children raises increases political demands to support married middle-class women’s homemaking, which only exacerbates class differentials and further reinforces the gender-based division of


146

Lives in the Law

labor. To move the United States in a more promising direction, Bergmann has proposed a program called “Help for Working Parents,” which provides all low-income parents, whether single or coupled, with the resources to combine paid work with parenting. The program would provide universal health insurance (on a sliding scale), child care vouchers (for public or private forms of child care), food stamps, and expanded housing assistance for high-cost areas. Perhaps most importantly, it would also provide wage subsidies to bring earnings up above the poverty level.105 Bergmann’s program was developed jointly with feminist Heidi Hartmann, the head of the Women’s Public Policy Institute.106 The proposal contemplates that parents will engage in fulltime work; however, it defines full time as thirty hours per week—a substantial reduction from the current norm for American men and women.107 Feminist political theorist Nancy Fraser has also criticized the traditional welfare approach for reasons that turn out to be remarkably similar to Bergmann’s, despite their different points of departure.108 Fraser develops a thoughtful critique of even a remarkably utopian version of the welfare approach—one more generous than we have come close to achieving in the United States—that she calls a “caregiver parity” model.109 In such a utopian welfare model, The point is to enable women with significant domestic responsibilities to support themselves and their families either through carework alone or through carework plus part-time employment. . . . Thus, childbearing, child rearing, and informal domestic labor are to be elevated to parity with formal paid labor. . . . To this end, several major new programs are necessary. One is a program of caregiver allowances to compensate childbearing, child rearing, housework, and other forms of socially necessary domestic labor; the allowances must be sufficiently generous at the full-time rate to support a family. . . . Also required is a program of workplace reforms [to] facilitate the possibility of combining supported carework with part-time employment and of making transitions between different life-states.110 Like Bergmann, Fraser condemns even such a well-intentioned model on the ground that it reinforces the gender-based division of labor in ways that harm poor women the most, but ultimately hurt all


Labor’s Subjects

147

women. “Although the system of allowances-plus-wages provides the equivalent of a basic minimum breadwinner wage, it also institutes a ‘mommy track’ in employment—a market in flexible, noncontinuous full- and/or part-time jobs [that] will pay considerably less even at the full-time rate than comparable breadwinner-track jobs.”111 As a result, Fraser concludes, the model will perpetuate current patterns of income inequality. Even though the model, according to Fraser, aims to “make difference costless,”112 the model actually promotes women’s marginalization by reproducing the link between caregiving and femininity, on the one hand, and breadwinning and masculinity, on the other.113 To move beyond this system, Fraser argues for what she calls a “universal caregiver” model that would restructure our social institutions to allow women and men alike to combine an active and simultaneous commitment to paid work and family life. This would involve vigorous steps to eliminate the gender segregation of jobs, as well as generous social support for job holding. Fraser’s vision is similar to Bergmann’s, except that Fraser is explicit about the need to cut back on the amount of time we devote to paid work so that all of us can be more active participants in family life, political activity, and civic endeavors. She quotes approvingly from the Swedish Ministry of Labor: “To make it possible for both men and women to combine parenthood and gainful employment” and, Fraser would add, politics and civil society, “a new view of the male role and a radical change in the organization of working life are required.”114 In such a world, “The employment sector would not be divided into two separate tracks; all jobs would be designed for workers who are caregivers, too; all would have a shorter workweek than full-time jobs have now; and all would have the support of employment-enabling services.”115 Thus, to create this world would mean dismantling the gendered association of men with paid work and women with domesticity. It would require fully envisioning men as committed caregivers and women as authentic workers—something that even many feminists, let alone many other men and women, have not yet been able to do. This is not surprising, for family-wage ideology is such a deeply ingrained part of our heritage that it remains difficult to recast women’s (and men’s) roles as workers and citizens in more transformative terms. As historian Linda Gordon has shown, even the late nineteenth and early twentieth centuries white women’s rights activists who were instrumental in creating the modern welfare state were


148

Lives in the Law

“maternalists” who based their approach on the family-wage system.116 These feminists’ acceptance of this gendered system of labor limited their vision of welfare to a system that paid women to stay home and take care of their children (such a system was understood to be temporary, anyway, since they imagined the beneficiaries as widows who would eventually remarry), rather than a system that enabled women and men to take care of their families while engaging in paid work. Of course, even at the time, some reformers understood that the family wage was a myth, and that “mothers’ aid would be only a poor substitute for insisting on decent wages” for working women.117 But, the most prominent activists’ adherence to family-wage ideology blinded them to the need for broader government policies that would enable women to work to support families on their own, such as better jobs and job training, wage subsidies, and collectivized child care. It was left to African-American women and other activists to call for these and other measures that envisioned wage work as an important component of women’s lives and identities, and, more radical still, of their independence from men.118 Because of the close links between work, citizenship, and identity, our historic failure to take women seriously as workers has prevented us from incorporating women as full citizens. Even when we enact laws that recognize and seek to equalize women’s work roles, as I argued above, the remnants of family-wage ideology creep into the law and deplete much of its transformative potential. After thirty-five years of civil rights enforcement, many women are still left to scramble for lowpaying, often temporary or part-time, jobs that don’t come close to providing a living wage or decent benefits.119 They are left to patch together care for their children with little or no help from their employers or government. And, whether women work in the highest echelons of the professions or the lowest levels of service provision, their place toward the bottom of the hierarchy is rationalized by denying their capacity for agency as workers. Highly trained professionals who are discriminatorily relegated to second-class status or driven out of their fields altogether are labeled “mommy trackers,” who decline the legitimate demands of the professions in order to fulfill their natural domestic roles.120 Less privileged women are not only described—but denigrated—as creatures of inferior culture, a characterization that serves to legitimate their low position in the labor force.121 Whether women’s lack of agency as workers is romanticized as the


Labor’s Subjects

149

expression of middle-class domesticity or denigrated as the product of cultural inferiority,122 the stereotype of women as inauthentic workers suppresses all the ways in which women’s lives are fundamentally shaped—and can be reshaped in more transformative ways—in connection with our work. Changes in the Making Meanwhile, the organization and structure of work is changing in dramatic, world-rupturing ways. We are living through a time comparable to the Industrial Revolution in terms of magnitude of the shifts in working life—and, along with it, the rest of social life. As corporations seek more flexible forms of production and labor around the globe, more and more people face greater job insecurity and less ability to shape their lives through a coherent narrative involving a commitment to work performed in stable settings over the course of a lifetime. It isn’t simply women, racial minorities, or other low-wage workers who are experiencing the new insecurities: The changes are affecting all but those at the very top. To put the point sharply, almost all workers are in danger of becoming “women,” in the sense that they are experiencing the problems and dilemmas that women have traditionally faced with respect to paid work. New Trends The changes are too complex to describe fully here, and, of course, to some extent, different things are happening in different sectors of the economy. Nonetheless, some general trends are emerging.123 In the transition to a global economy, the old large-scale “bureaucratic” institution that gave people the chance to move up on internal career ladders, as they accumulated experience and seniority, is dying. In its place, we are witnessing the emergence of newer organizations that are transforming production and personhood along with it. The hallmark of the new order is flexibility—the capacity to change quickly, to respond on a dime to new product demands and changing business conditions. Corporations are going “from fat to lean,” as “assumptions have shifted away from ‘big is better’ to ‘smaller is beautiful’—and more flexible.”124 Many organizations have eliminated middle-management and nonessential workers, subcontracted out a variety of


150

Lives in the Law

internal services, and begun to rely on overtime and contingent workers instead of adding new full-time staff.125 “In place of organizations as pyramids, management wants now to think of organizations as networks.”126 Unlike a pyramid, which is a firm, fixed structure, a network is a fluid one that constantly redefines its form and function. In the abstract, at least some of these changes have the potential to be empowering. As the classic critiques of modern, large-scale organizations made clear, life in the bureaucratic office and Fordist factory could be stultifying. At the top, the high degree of uncertainty made trust a crucial component of managerial jobs. The need for trust bred discriminatory pressures toward social homogeneity—as opposed to merit—in hiring and promotion, and deadening pressures toward conformity—as opposed to creativity—in performance. At the bottom, many people stuck in dead-end jobs became dispirited and adjusted their aspirations downward, which only served to rationalize their situation. Along the way, the pyramid squeeze produced more qualified candidates than openings, which permitted companies to bypass controversial candidates, particularly those marked by gender, race, or class difference. Yet, pressures toward upward striving and tokenism created an atmosphere of competition in which it was difficult for the powerless to unite, solidaristically, with each other. The powerless were caught in “highly routinized, rules-bound jobs,” located “at the periphery, in backwater positions not seen as critical for solving relevant problems.”127 If this picture of the traditional corporation looks reactionary, the Fordist factory looks even more retrograde. By subdividing the production process into smaller and smaller units that required little thought or judgment, managers learned that they could extract more and more productivity out of those who did the work. In addition to forcing workers’ bodies into conformity with the discipline of the governing machinery (whether through the “line” or through the operating system), management could also impose the discipline of de-skilling by eroding the craftworker’s integrated knowledge of the production process as a whole.128 Of course, the ultimate logic of this process is replacing workers with robots; one need only visit a newer factory, in which only one or two people are employed to watch over a vast plant full of machinery, to realize that in the reductionist world of timemotion management, machines are more valuable than human beings. They perform repetitive motions quickly and without stress, they don’t


Labor’s Subjects

151

need lunch or bathroom breaks, and they don’t resist exploitation through acts of sabotage, as human workers sometimes do. From this vantage point, it might look liberating to kill off the traditional hierarchical corporation and replace it with decentralized institutions. In an ideal world, managers, once stripped of the formal authority that their old hierarchical positions gave them, would have to earn the respect of those they supervise in order to have influence and leadership. Line-level workers would also face new incentives: Rather than moving up along an internal career ladder mechanistically with the accumulation of seniority and minimally satisfactory performance, promotions would depend on working harmoniously and productively with their peers to produce better results. In fact, the reward for good performance would not lie always in moving “upward,” but instead in moving outward, horizontally, to acquire deeper and richer knowledge of the enterprise. Through the experience of working together in teams and making lateral enrichment moves, employees could regain the craft knowledge, collectively, that management once stole from them. Eliminating internal career ladders would remove the incentive to be loyal to the company or even to one kind of work. But that would be a good thing. Rather than being drones beholden to one organization or one narrow notion of vocation, people would be free to become nomadic entrepreneurs, who move from firm to firm and even position to position in order to exploit good opportunities as they come along and diversify their human capital portfolio. Even better, in this brave new world, both managers and workers would have to shed themselves of their prejudice and intolerance, for working harmoniously with others would be a premium. New Threats Despite these rosy predictions, there are reasons to be concerned—even alarmed—about the changes that are actually occurring. Among those who are informed, powerful voices warn that the new trends harbor some profoundly negative consequences for social and individual life. Bennett Harrison and Richard Sennett, for example, have emphasized the dark side of flexible capitalism, which, according to them, is committed above all else to the idea of reducing fixed labor costs in the name of facilitating newness and change: “No long term.”129 Harrison’s work shows that, contrary to popular pronouncement, there is no


152

Lives in the Law

renaissance of small firms that can be celebrated under the rubric “Small is beautiful.” Instead, large firms are reorganizing by cutting their own core production functions to the bone and organizing decentralized networks that they dominate—a phenomenon he calls “concentration without centralization.”130 In Sennett’s view, this shift toward more decentralization has not meant greater freedom and autonomy for most workers, but simply a different and perhaps more debilitating form of power and discipline. According to Sennett, the flattening out of the pyramidal structure through the elimination of middle management, widely touted as a form of “debureaucratization,” has not left line-level workers in more control of their activities. Instead, many of the commands people once negotiated with their immediate supervisors have been embedded into systems technology, or are simply handed down in the form of directives from on high. In a reverse spin on the traditional trend toward ever finer divisions of labor, top management now loads onto small work groups an ever-increasing, diverse set of tasks, instructing workers to meet unattainable goals without providing anyone to train or supervise them in how to do so. Nor does decentralization necessarily restore the craft element by allowing workers to regain integrated knowledge of the process. All too often, according to Sennett, even teamwork promotes a kind of “demeaning superficiality” as people are encouraged to develop “soft skills” that remain on the surface of experience, rather than acquiring substantive knowledge that deepens with accumulated engagement.131 In some environments, management’s promises to take workers and their ideas seriously have proven to be charades. At Subaru-Isuzu, for example, as Laurie Graham has documented, workers discovered that management’s egalitarian rhetoric was largely a facade. Calling the workers by the same title and having them all wear the same clothes and eat in the same lunchroom did not produce equality. Team leaders often ruled dictatorially, and, on matters like work scheduling, associates’ input was completely disregarded. Associates who tried to provide input on such issues were told that “the company takes input from Associates on subjects that the company chooses.”132 Although “kaizen time” was supposed to provide a formal forum for discussing associates’ suggestions, the time was actually used by managers to announce productivity statistics from the previous day—a practice that employees resented bitterly.133 These problems are not unique to Subaru-Isuzu; Ruth Milkman


Labor’s Subjects

153

has documented similar dynamics at the General Motors plant in Linden, New Jersey. After a major reorganization that eliminated the jobs of many workers, GM promised a new company culture in which workers would be treated with a newfound respect and would have a major role in ensuring improved production. Despite workers’ excitement and cooperation, these promises were quickly betrayed. The GM Employee Involvement Groups, which brought together management and line workers in once-a-week, half hour meetings to discuss the worker’s suggestions, were canceled after a short time. Even more disappointing, workers found themselves being reprimanded if they dared to stop the assembly line—despite the fact that the new training program had emphasized that they should stop the line if they discovered an error. Shop-floor management found it difficult to shed their autocratic ways, and most foreman went back to their old practices of humiliation and abuse.134 Some of the new forms of work organization can also have negative consequences for employee solidarity. Rather than being a bottomup initiative that allows workers to participate more fully in production decisions, teamwork is often part of a larger system designed to indoctrinate workers into a carefully orchestrated, top-down organizational culture in which workers compete with each other for management’s favor. One researcher found that “peer pressure from other workers . . . took the place of bosses cracking the whip . . . ; the fiction of cooperating employees served the company’s relentless drive for ever greater productivity.”135 Laurie Graham and her colleagues at Subaru-Isuzu quickly discovered that internalizing the responsibilities of team membership meant pushing oneself beyond all limits to keep up one’s end of the bargain. Resentment against slower workers was common and was implicitly encouraged by the companies’ policies. Whenever a particular team had to stop the assembly line, for instance, everyone in the plant was notified about which team had done so by a series of musical notes that designated that team.136 Graham even found herself participating in a scheme to humiliate a fellow team member into carrying his weight in the production process. Thus, despite a benign image of teamwork as something that fosters harmonious relations among coworkers, teamwork can actually foster cutthroat competition among teams and among individuals within teams—without the traditional safeguards against harassment and discrimination that accompany more formal work structures. More systematic empirical research also documents some negative


154

Lives in the Law

consequences of the new forms of organization. Paul Osterman has studied large private firms that adopted high-performance practices such as self-managed work teams, job rotation, quality circles (or other off-line problem-solving groups), and total quality management. Consistent with expectations, Osterman found that these practices had spread quickly in the 1990s.137 Among economists and management experts, there was widespread anticipation that these trends would prove to be win-win for both management and employees.138 Yet, contrary to these predictions, Osterman found that the productivity and quality gains associated with these innovations did not redound to the benefit of employees. In fact, firms that had implemented high-performance practices by 1992 produced no wage gains for employees by 1997. Furthermore, the presence of these practices in 1992 was actually associated with a higher probability of layoff for both workers and managers in later years.139 Thus, the firms did not provide job security as a way of reciprocating the high degree of employee effort demanded by the new work systems. To the contrary, such effort was met with restructuring that harmed, rather than helped, incumbent workers. In fact, according to many commentators, one of the hallmarks of the new economic order is declining job security. It appears that both job stability—the tendency of workers to form long-term bonds with their employers—and job security—workers’ ability to remain in their jobs so long as their performance is satisfactory—have declined over the last two decades.140 Many employees now feel more insecure about their jobs, and with good reason. Involuntary job loss (not for cause) increased in the 1990s, to roughly 10 percent of the population.141 Job displacement is not limited to low-skilled workers: The 1990s saw a significant increase in the risk of job loss for white-collar workers, including managers, whose rate of job loss due to “position abolished” doubled.142 Even in the red-hot economy at the turn of the century, displaced workers faced a hard time finding new jobs. In the Economic Policy Institute study, more than one-third of displaced workers were out of work when interviewed one to three years later. Those who did manage to find new jobs earned less; they were also less likely to retain health insurance.143 The new economy forces everyone—even many once-secure workers—to live with inestimable risk. In such a climate, the cultural imperative is to keep moving and taking risks; those afraid to leap are said to deserve to be stuck. In this new organizational/cultural economy,


Labor’s Subjects

155

advancing age is associated with fearfulness and fixidity. Management argues that “older workers have inflexible mind-sets and are riskaverse, as well as lacking in the sheer physical energy needed to cope with the demands of life in the flexible workplace.”144 The notion that youth are flexible, while older workers are rigid, provides an ideological justification for targeting older workers for devaluation and dismissal. Accumulated experience is no longer seen as something that deserves respect and value; instead, it is a sign of worthlessness, which will mark even well-off workers with the passage of time. In addition to downsizing and eliminating clear internal career trajectories, many corporations have turned to various forms of nonstandard (sometimes called contingent) work. Many companies have converted full-time positions into part-time, temporary, contract, or on-call jobs, or outsourced them to “temp” agencies or subcontractors that offer lower wages and no benefits; other firms are creating these forms of employment at rapid rates.145 Although some highly educated workers may enjoy the flexibility that such forms of contracting entail, it is a return to Lochnerian formalism to refer to most of these contingent workers as “free agents” or “entrepreneurs.” As two recent studies by the Economic Policy Institute show, most forms of employment that do not involve full-time, year-round jobs are inferior to such standard jobs. Nonstandard jobs are significantly less likely to provide health insurance or a pension; they are more likely to be temporary; and they do not typically lead to regular employment, at least with the same firm.146 Furthermore, most people who work in nonstandard jobs earn less than full-time workers.147 Both men and women in all types of nonstandard work (except contracting) are more likely to receive povertylevel hourly wages than workers with similar personal and job characteristics employed in regular full-time jobs.148 Although most people who work in nonstandard job arrangements are worse off than standard jobholders on a variety of dimensions, women and minority men tend to occupy the lowest-paying types of nonstandard jobs.149 Indeed, a second major characteristic of the new economic order is increasing wage inequality. Despite some initial controversy about its existence, the growth in the earnings gap between the highest- and lowest-paid workers has by now been well documented.150 Between 1979 and 1990, there was a sharp increase in the likelihood that a yearround, full-time worker would have annual earnings below the poverty level;151 the same trend also held for all workers.152 This widen-


156

Lives in the Law

ing wage distribution occurred throughout the economy, in virtually every occupation and industry and in both the manufacturing and service sectors, at least among men. Among women the picture in the 1980s was more complicated: For better-educated women, wages increased, as discrimination and job segregation by sex decreased. For less-skilled women, wages declined, although not as steeply as for their male counterparts (who had much farther to fall).153 According to recent sources, the dramatic growth in wage inequality continued in the 1990s, although its character shifted. In the 1980s there was a growing separation between top and middle earners versus middle and bottom earners. But in the 1990s, the inequality was generated by a divergence between the top and everyone else.154 The status of those in the middle deteriorated, as white-collar wages stagnated or declined.155 Even “women workers in the middle and upper-middle part of the wage distribution, who saw real wages rise significantly in the 1980s, . . . experienced a sharp deceleration in the 1990s.”156 Although a tight economy brought wage increases toward the end of the decade, the improvements of 1997–98 still left wage trends in the 1990s no better than they were for most workers in the 1980s. “To the extent that the typical American family has been able to hold its ground, the most important factor has been the large increase in the hours worked by family members.”157 Like other concerned scholars and activists, I believe these changes in working threaten the social order. Richard Sennett argues that a commitment to work performed over the course of a life is a precondition to a stable society and strong sense of oneself, and he may be right. As the notion of a career that progresses step by step through a few institutions has eroded, as the marshaling even of a single bundle of skills through the course of a life has declined, as more and more people work harder and harder to have fleeting associations with strangers in short-term jobs in new locations, something vital has been lost—and it isn’t just a paycheck. Working with one’s peers in pursuit of common goals is the structure through the trust and commitment necessary to sustain a vibrant civic life are created. As Sennett argues, stable work is the experience through which a coherent narrative for a life is built. People need work, and we need work that pays enough to sustain ourselves and our children. We also need to be able to count on working—to live free of the anxiety produced by not knowing where one’s next project—and paycheck—are coming from, or whether they will come at all.


Labor’s Subjects

157

In fact, when I read Sennett’s new book, my reaction was, he’s right. It is profoundly disheartening when people don’t have work they can count on to sustain a life. If we want to know what happens to people who do not have access to steady work suited to their education and ability, all we have to do is take a look at the experience of women, especially in the era before the laws against employment discrimination were enforced. Moving from one dead-end job to the next, they kept trying on different types of work as teenagers try on outfits, hoping one would finally allow them to express their deepest selves. Even when women found work they loved, it never paid enough to allow them to support themselves (let alone their families). Sennett is telling us that many more working people are now being treated as women have always been treated: as though they don’t need steady employment—let alone careers—but can be left to piece together fragments of experience acquired here and there, through happenstance, into the solid stuff of a life. The bad news is that these changes now threaten most Americans. Even members of the once-solid middle class who were not supposed to fail, like Sennett’s IBM programmers, are falling victim to the new insecurities. Yet, in another sense, this is also the good news. That these changes affect so many middle-class men and women creates the possibility for political change. The question is, what should we do? Law’s Work The changes we are witnessing present deep challenges, but they also provide us with an opportunity to reshape social life. There are many viable directions for change, but, from the vantage point I have been describing, they all begin with paid work. For me, the most promising point of entry is to ask: What would it take to make available to everyone full and equal participation in decently paid, life-sustaining, participatory forms of work in which women and men from all walks of life can stand together as equals? I realize that work alone is no panacea. It is the platform on which equal citizenship must be built, not the entire edifice. Still, the importance of work should not be underestimated. People need more than money or property: We need life projects. We need goals and activities to which we can commit our hearts, minds, and bodies. We need to struggle with our capacities, and our limits, in sustained ways in stable


158

Lives in the Law

settings. We need to work alongside others in pursuit of common goals. We need to feel that we are contributing to something larger than ourselves and our own families. Most of us even need something that requires regular rhythms and structure and provides a mechanism for deferring gratification. We need to feel that we are earning our keep— that we have a source of wherewithal that is our own. We also need public recognition for our labors. It is difficult to imagine any single activity other than employment that can fulfill all these purposes for the vast majority of people. We have seen what happens to people when they don’t have work to give life structure and meaning, and it is not exemplary. There is a reason why democratic societies have organized themselves as employment societies.158 Paid work is the only institution that can be sufficiently widely distributed to provide a stable foundation for a democratic order. It is also one of the few arenas— perhaps the only one—in which diverse groups of people can come together and develop respect for each other through shared experience.159 Can we think of a society anywhere in the world we would want to emulate in which most people do not work for a living? In contrast to such a work-centered approach, some important thinkers are proposing that we abandon our historic emphasis on work and create alternative paths to the good life. Bruce Ackerman and Anne Alstott envision a “stakeholder society,” for example, in which investment rather than working becomes the means of securing the good life. Rather than making sure that each citizen has access to a decent job, they would distribute to each citizen a sum of money to invest. They believe it is property that is crucial to citizenship, so it doesn’t really matter whether people have a vocation to which they can devote themselves, or something else, such as a hobby, so long as they have an income and a stake in the polity that provides it.160 In rhetoric that harks back to nineteenth-century characterizations of paid work as wage slavery, Ackerman and Alstott even hint that work is inconsistent with liberal notions of freedom.161 Other thinkers have gone so far as to celebrate the end of work. Feminist Carole Pateman has hinted, for example, that in the future, democratic citizenship will not be premised on paid work. This is a good thing, she suggests, for it alleviates the gender dilemma in that equation, given that women have been associated with domesticity as opposed to wage work and hence seen as incapable of equal citizenship. Rather than addressing this predicament by democratizing work,


Labor’s Subjects

159

Pateman suggests that we resolve it by eroding men’s attachment to wage work (as women’s attachment is presumed to have been), and basing citizenship on something like our common dependency, rather than on the notion that work can ever make any of us “independent.”162 But simply because work alone can never make us independent does not mean we can do without it. Ordinary people understand the significance of work and have been demanding access to it in just such broad, inclusive terms. In fact, over the past forty years, all the major social movements have focused on obtaining equal access to work from those excluded from its blessings. The black demand for jobs (along with peace and freedom) found expression in Title VII of the Civil Rights Act of 1964, which promised to integrate African Americans into all the best forms of work in our economy. William Julius Wilson’s current emphasis on jobs for the dispossessed163 resonates with the language of the 1968 Kerner Commission report, which pronounced unemployment the most significant problem facing poor black communities.164 The Kerner report emphasized male unemployment, but even at the time, women (of all races) were demanding to be taken seriously as workers. Indeed, the emphasis on work has been crucial to second-wave feminism, which was born in part of the recognition that even relatively well off, white middle-class women were united with their less privileged, poor and working-class sisters in the experience of being marginalized in the world of work—which in turn disempowered them in politics and in private life.165 Older Americans have also demanded recognition as valid workers, and they won it in the Age Discrimination in Employment Act,166 which protects their right to work for as long as they are able, without being dismissed as less competent. Gay men, lesbians, and bisexuals have also been demanding equality as workers. They have protested the ways in which they are all too often driven out of their jobs once people discover or even suspect that they are sexual minorities, a painful process that forces them to give up the occupational identity they’ve worked so hard to achieve and that has become so much a part of them.167 Gays and lesbians have won protection against job discrimination in many states and cities, and they have come very close to achieving federal protection through such legislation such as the Employment Non-Discrimination Act.168 Although women and racial and ethnic minorities, older people, and gays and lesbians are often characterized as “special interests,”


160

Lives in the Law

many of the rights and remedies these groups have struggled for have extended the benefits of work more broadly to other people, as well. For example, racial minorities’ challenges to pencil-and-paper tests have benefited disadvantaged whites, too, because of the strong correlation between success on these tests and socioeconomic class.169 Similarly, women’s challenges to height requirements have benefited many nonwhite men who are shorter than the average white Anglo-Saxon-Protestant male, just as mothers’ efforts to win more flexible work schedules to accommodate parenting have benefited everyone who provides care— male and female, father and mother, son and daughter. Gay men’s efforts to challenge the workplace harassment their heterosexual counterparts direct at them helps many women, too, because such challenges make it easier to see that harassment can be motivated not simply by sexual desire but by a desire to exclude anyone who undermines the dominant masculine composition and image of the work.170 The disability rights movement has also emphasized access to work, and they won an important victory in the Americans with Disabilities Act.171 At least potentially, the ADA represents an expansion of the traditional civil rights paradigm: It recasts the demand for a “level” playing field into a call for an “accessible” one.172 At the core of the ADA is a revolutionary idea: People who have disabilities (or who are perceived to have them) have the right to participate in the workforce just like everyone else, and they must be considered for any jobs they can do with reasonable modification or support from the employer. There are, of course, limits on this idea (the person must be otherwise “qualified,” the employer does not have to make changes that cause “undue hardship,” and so on). The point is that disabled people now reject the older, custodial stance “typically expressed in policies of segregation and shelter, of special treatment and separate institutions.”173 Like other Americans, they want the right to work, and they are demanding that workrelated organizations make way for them. Once again, making way for “them” helps make way for all of us. The ADA requires both structural transformations, such as building ramps, and individual accommodation, such as allowing employees to work around their treatment schedules. These changes can benefit all of us, not simply those of us who meet the legal definition of “persons with disabilities.”174 People who push baby strollers or ride bicycles appreciate ramps along with people in wheelchairs, and almost everyone can benefit from flexibility in scheduling. Furthermore, the very


Labor’s Subjects

161

notion of “them” and “us” is an illusion when it comes to disability. If “disability” were defined sufficiently broadly, as it should be,175 most of us would be among the disabled at least temporarily at some point in our lives. We can also view the transition from welfare to work as part of this trend.176 I realize that much of the impetus for welfare-to-work programs has come from the political Right, who may not have the best interests of poor people at heart. But it would be a mistake to attribute all of the new emphasis on work to conservatives alone. Some of the demand has come from members of working poor who do not receive welfare, and who do not have the luxury of keeping a parent at home to take care of their own children. They may understandably resent the fact that their hard-earned tax dollars are used to support other parents who are not much worse off than they are.177 In this sense, welfare entitlements have divided the welfare class from other members of the working classes. But, of course, even this view is too simplistic. Poor single parents themselves have long expressed a desire for work that will allow them to support their children; they know that a decent job is the only path that provides real hope for their empowerment in the long run.178 Indeed, most women who receive welfare payments have been working for pay all along, as they must to ensure the survival of their families.179 But, partly because so many of them are women and racial minorities and partly because they are poor, poor single parents have not been seen as “authentic” workers who have the capacity to contribute to productive endeavors in a way that entitles them to full citizenship. They have been overrepresented among classic contingent workers—those who do menial jobs here or there, on a part-time or temporary basis, often in the informal economy, at the lowest of wages, without benefits, job protection, or social support.180 This is the legacy of the fact that our welfare system has been based on a family-wage model that cannot envision women or mothers in economically powerful provider roles. Even if many welfare-to-work programs have been adopted for the wrong reasons, their existence does provide a political opening to turn things around.181 Not only is paid work important to people’s ability to get ahead and their sense of community and self-esteem; the workplace is also a more easily politicized setting than the privatized home. By creating social systems that allow poor (and other) parents to


162

Lives in the Law

combine caregiving with stable employment, we enable them to move into the workforce—a space in which they can more easily engage in collective action to improve their situation.182 Perhaps this is why, all over the country, poor single parents and their advocates are seeking to convert the duty to work into a right to work, with all the social support necessary to make steady employment possible.183 For instance, in one Wisconsin program, the state (or one of the agencies with which it contracts) provides a remarkable array of services designed to facilitate welfare mothers’ successful transition to paid work.184 Everyone in the program who can work receives a job: Although the ultimate goal is private-sector employment, the program provides a series of subsidized private- and public-sector jobs for those who are not “job ready.”185 Clients receive job search assistance and job training. Those who land jobs are not abandoned; they continue to receive job retention assistance and support.186 They also continue to receive payments for child care and health care,187 and caseworkers help with transportation.188 Perhaps most important, the program provides sizable wage subsidies to ensure that those who hold down a job earn more than they did on AFDC.189 The provision of such services can be seen as an expanded version of the Americans with Disabilities Act’s call for accessibility: In order for paid work to be truly “accessible” to single parents, they need a variety of services that help them prepare for, locate, and hold down jobs. And, of course, they need jobs—jobs that will pay well enough to support themselves and their children. Viewed from this perspective, the best welfare-to-work programs push in the direction of a new set of universal entitlements that guarantee and support a right to work for everyone. If work is to provide the foundation for citizenship (as welfare-to-work programs imply), then everyone must have access to a suitable job, as well as the training and education they need to do the job. The goal should be to ensure that everyone—mothers on welfare, fathers struggling to pay child support, poor women and men without children, people with disabilities, middle-class homemakers or divorcees, people in temporary jobs who want steady employment, older people, youth who are trying to finance continuing education, and, yes, even well-educated displaced workers—has work that will sustain them. Of course, it isn’t simply a lack of employment, but a lack of jobs that pay a decent wage that keeps many people in poverty.190 As we pursue welfare-to-work strategies and other policies that remove work


Labor’s Subjects

163

disincentives for various groups of people who have not engaged in steady employment, there will be an even greater downward pressure on wages as increasing numbers of low-skill workers enter the labor market. The old craft unionism strategy of excluding the disfavored as a way of keeping wages high is no longer viable; we can no longer afford to keep wages high for some by excluding others.191 Like the Wisconsin program, some welfare-to-work programs subsidize the wages of clients who find jobs in an effort to bring them up to a level that no longer discourages, but instead actively encourages, steady employment.192 But, why should we raise wages only for people on welfare, when so many others face jobs with pay so low that they cannot support themselves or their children? We must ensure that everyone has a pathway to work with a decent wage. In addition, people must have access to services that enable job holding if work is to provide a universal platform for citizenship. Single parents need a variety of services—most important, health care and child care—in order to hold down jobs. But single parents are not the only ones who need these services. As anthropologist Katherine Newman has observed, providing health insurance and coveted child care slots to welfare recipients may be a worthy goal, but it “leaves the working poor, whose lives have little impact on [cities’] bottom line, out in the cold.”193 We all need health care, for ourselves and our children. And, in an age of dual-career couples and single-parent households, almost everyone needs affordable, high-quality child care in order to work effectively. The Americans with Disabilities Act194 and the Family and Medical Leave Act (FMLA)195 move us in the right direction, but not nearly far enough. The only answer is massive public investment in high-quality forms of child care and other dependent care, which in turn could create many new jobs for other people as these forms of household labor are converted into paid jobs or community-based work. To even imagine a society in which we can all commit ourselves to paid work, we will have to think seriously about how to structure work and working time so that everyone can combine a genuine commitment to work with an active involvement in family and civic life. Family life makes constant demands: One single parent working forty hours a week, or even two parents doing so, simply cannot get everything done. Parents need scheduling flexibility to attend to day-to-day commitments; they also need leaves from their jobs from time to time, which


Lives in the Law

164

pay their full wages, to attend to long-term issues in their families, communities, and lives. Some people advocate unpaid leave or more parttime jobs, especially for women, to allow parents to balance “our” family responsibilities with working.196 But these family-wage-based strategies further entrench patterns of gender segregation and class bias. Only people with partners who earn enough to support the family can take advantage of them. They benefit middle-class women in traditional marriages, but exclude the single parents and caregivers, and even the higher-earning husbands and nontraditional wives and partners, who should be able to take advantage of such reforms. If we want to help everyone, we cannot limit ourselves to approaches such as unpaid leaves, or the expansion of part-time “mommy-track” jobs that can be used only by those who have access to a breadwinner’s wage.197 People who have caretaking commitments need shorter hours, but not in the form of stigmatizing special accommodations. In fact, there is no reason to limit collective policy solutions to parenting or other family demands, when there is so much important community work to be done. Once again, we are pushed to consider universal structural solutions, such as a reduced workweek for everyone and periodic paid sabbaticals to cover both caregiving commitments and other important life projects. Beyond Identity Politics: Work as a Common Foundation Notice that something remarkable has happened: To underscore the importance of paid work as a political and cultural ideal, I began talking about how many different people, from many different walks of life, have been demanding equal access to work. I drew from examples of groups who have sought to use antidiscrimination law as a wedge into the mainstream of work. Yet, as I began discussing these people’s demands for equal participation in working life, the discussion began to move in a more inclusive direction. The effort to look for ways to enable those who traditionally have been excluded from the workforce to participate on equal terms led to broader proposals to transform the social landscape for everyone. In the process, the conversation shifted from one that emphasized work-related rights for some people as members of particular demographic groups (racial and ethnic minorities, women, older people, gays and lesbians, people with disabilities, welfare mothers and fathers, the working poor, and so on) into one that


Labor’s Subjects

165

emphasized work-related rights for all people as members of the broad community of citizens. This transformation conveys powerfully how a focus on work can serve to unite us across difference and to provide a common foundation for equal citizenship for all. In my view, it time for this same transformation to begin occurring in the law. Law works indirectly, but powerfully, to shape our lives and our identities. It does so by shaping the structure and character of the institutions that mold our communities, our life prospects, and our aspirations and self-understandings. It does so, too, by creating the legal identities through which our efforts to change those institutions must be expressed. Employment discrimination law has enabled us to push for changes in working life under the banner of being “women,” or “African Americans” or “people with disabilities.” This body of law has been tremendously important. It has prompted employers to restructure labor markets, firms, and jobs in ways that permitted many of us to aspire to become workers—and people—we never imagined it was possible for us to be. The difference in the life my mother had available and the one I now have is a difference worth dying for. The difference turns, in large part, on the different types of work to which we could aspire (and the differences in political, cultural, and family-based power that flowed from our work). But the world is changing, and a new set of conditions confronts us all. The employment discrimination laws are not capable of generating the structural transformations necessary to create the conditions in which work can provide the basis for equal citizenship for everyone. It is time to pull together the efforts so many people have made through antidiscrimination law into a broad inclusive focus on making work work for everyone. We must remake our laws—indeed, all our social institutions—to create a world in which everyone has the right to participate in paid work, with all the social support that is necessary to make that possible; we must also demand the conditions for work that is sustainable over the course of a life. In addition to life, liberty, and the pursuit of happiness, we should insist on the right to a life’s work. Providing everyone access to a life’s work is a revolutionary project that has never been done in this country; someone has always been excluded from the labor market in order to benefit someone else. This project demands creatively combining the levels of the universal and the specific: Paid work has the potential to become the universal plat-


166

Lives in the Law

form for equal citizenship it traditionally has been imagined to be, but only by attending to the specific needs of various social groups and individuals to ensure participation parity. A universal approach does not mean we can or should pretend that everyone is the same. Indeed, if we are to make sure everyone can participate in work, we cannot reduce everyone to the lowest common denominator—an abstract dehumanized category of “worker.” To do so would call to mind a history to which we should not want to return, a history in which worker meant “man,” omitted women, and suppressed the rich diversity of working people.198 Instead, we must strive to invest the meaning of worker with all the demographic and individual diversity real working people embody, along axes we have acknowledged (such as race, gender, age, disability, and sexual orientation) and others to which we have yet to devote ourselves or perhaps even to discover (such as socioeconomic class, educational history, mental health, appearance, and less visible forms of “outsiderness”). This project will require a far more ambitious restructuring of the relationship between the state and the market—a more ambitious set of politics—than feminists sometimes propose. In my view, it is time to move beyond forms of identity politics that press for essentialist forms of recognition199 and simple revaluation of “women’s experience.”200 Instead, we should join forces with a broad array of groups (including white middle-class heterosexual men)—not simply for the purpose of advancing each other’s interests, but also for the purpose of envisioning and fashioning a shared interest in remaking work as a cornerstone for our best conceptions of citizenship and care. In my vision, paid work should serve as a foundation that secures to women and men from all walks of life a source of equal citizenship, economic wherewithal, social ties, and personal identity. Everyone would have a right to train for and pursue work of our own choosing, and everyone would earn a living wage by doing that work (our wages supplemented by the state, if necessary). Individual adults, rather than families (however defined), should be the unit of analysis for purposes of wages and state support, so that no adult would have to depend on another for basic economic support. No one would have to work the death-and-disability-dealing hours that many of us do now. Everyone would work fewer, saner, and similar hours, so that all of us would have a full opportunity to serve others and to expand ourselves by participat-


Labor’s Subjects

167

ing fully in family, politics, friendship, and civic life. Following current trends, a great deal of housework would continue to be converted into bundles of services (such as cleaning, meal preparation, laundry, yardwork, and home and automobile maintenance) that some people would do for a living—and a living wage. Most of us would continue to do a fair amount of housework and caregiving on our own, both in households that are not necessarily heterosexual or nuclear in form as well as in collective, community-based arrangements that we assemble with our partners, friends, neighbors, and newcomers. We would create and publicly finance a variety of different child care arrangements—including well-financed, state-financed day care, preschool and after-school programs that are so good for children that everyone, including the middle classes—would want to use them. In addition to child care, all adults would have access to the services they need to enable them to work, including health care, transportation, and continuing training. We would also have periodic sabbaticals, in which our wages are paid by the state, to allow us to fulfill our caregiving commitments and to perform public service work needed by the community or nation. Because everyone—men and women alike—would have access to work that provides economic security, social ties, and a strong source of selfhood, no one would be forced to stay in an intimate relationship that is not supportive or satisfying. Over time, the family would be reconstituted as a primarily affective realm in which adults would come (and stay) together mainly for love rather than economic need.201 This, to me, is a forward-thinking vision that builds on current trends and age-old aspirations to enable women and men of all walks of life to become full citizens—and fuller human beings—in the twentyfirst century. Obviously, this is a collective project of enormous scale and scope. I have neither the space nor the imagination to elaborate on all the necessary elements here. I will suggest a general approach and sketch a few of the key themes in the hope of inspiring others to pursue the project in more detail. Ensuring Everyone Employment If work is to provide a cornerstone for equal citizenship, then everyone must have access to a job, or better yet, a range of jobs to choose from. People also need appropriate education and training for the jobs that


Lives in the Law

168

are available. For this reason, a number of concerned scholars and policymakers have recommended measures to ensure full employment. Some economists have recommended ways to fine-tune the economy to ensure continued growth while producing a more adequate supply of decent jobs.202 In addition, scholars and commentators from across the political spectrum have proposed job creation and training measures designed to ensure universal access to work.203 Even when the national unemployment rate drops, some areas and some populations remain hard-hit.204 Taking a universal approach does not mean that localities and groups with particular needs cannot be served; to the contrary, it means addressing such needs to ensure that no one who needs a job is left behind. Celebrating Everyone’s Work In addition to providing access to jobs, we must create a grassroots language for expressing ordinary women’s and men’s understandings of why work matters. We need a language that speaks to many different audiences—political, corporate, union, academic, activist, and average citizen. It takes courage: In some circles, to talk about the significance of employment risks getting oneself labeled illiberal, antifeminist, or even right-wing. Traditionally, in the name of facilitating choice, liberal discourse has focused on solutions that provide people income with few or no strings attached.205 Unfortunately, all too often, liberal strategies ignore the need to nourish and reshape in more egalitarian ways the underlying social institutions (such as employment) through which genuine choice can be facilitated and liberal freedoms realized.206 Similarly, in the name of valuing women’s work, some strands of feminist thought now focus on securing economic support for caregiving and homemaking, rather than on restructuring paid work. Unfortunately, as we have seen, some of these discourses replicate gender-based and class-biased assumptions that are the legacy of a family-wage system that no longer describes most Americans’ reality. Even more troubling for those who believe we should press an agenda centered on work, there is a history of conservative rhetoric that emphasizes the value of the work ethic without an accompanying emphasis on ensuring the conditions in which people can form and realize their work aspirations equally.207 This is the tradition on which right-wingers who empha-


Labor’s Subjects

169

size the need for poor people to take “personal responsibility”208 draw, and it is a tradition that lacks comprehension of the conditions poor people face. But these discourses cannot halt the endeavor. In my view, their presence makes all the more imperative the task of articulating a new feminist politics by articulating why work matters so much to women as well as men. This vision must convey the most poorly paid, low-status workers’ understanding that all jobs have intrinsic value.209 All too often, those who are engaged in high-status, creative endeavors they love claim that only their jobs are meaningful (or even that their jobs do not involve “working”). But simply because people are lucky enough to do for pay what they would want to do even in their off-hours does not mean that what they do is not work, or that only work that is not performed for instrumental reasons can be valuable. Such a view implies that work done out of necessity is necessarily deadening or degrading, an elitist view.210 Even forms of work that some privileged people consider menial require much more skill and yield more satisfaction than people who have never done them realize.211 To combat the historical tendency to view unskilled labor as degrading,212 we should revitalize the radical labor tradition that emphasizes the inherent dignity of all forms of work.213 To accept this proposition in no way commits us to preserving low-paid jobs exactly as they are. To the contrary, it provides leverage for organizing the job in a way that promotes the autonomy and control of those who do it. Cleaning up after others, whether in public settings or private homes, is work that confers dignity. So is the most routinized factory work. Any work that serves the larger community makes a contribution. As Mike LeFevre, a Chicago steelworker so eloquently expressed it, Somebody built the pyramids. . . . Pyramids, Empire State Building, those things don’t just happen. There’s hard work behind it. I would like to see a building, say the Empire State, I would like to see one side of it a foot-wide strip from top to bottom with the name of every bricklayer, the name of every electrician, with all the names. So when a guy walked by, he could take his son and say, “See that’s me over there on the forty-fifth floor, I put the steel beam in.” Picasso can point to a painting, what can I point to? A writer can point to a book. Everybody should have something to point to.214


Lives in the Law

170 Earning a Living Wage

People also benefit from the sense of autonomy and pride that comes from “being paid an earned reward for one’s labor.”215 This is one reason why working for a living matters so much, and why it means more to many people than volunteer activities or time spent caring for their family or friends. We may wish it weren’t so, but it in a market economy, people who are paid for what they do get more respect from others, have more bargaining power in their relationships, and have a stronger sense of their value and place in the world than those who are not paid. In an age of globalization, market forces shape our world more profoundly than ever before, and with marketization comes an even greater emphasis on wage work, money, and other forms of exchange. It seems unlikely that we could reverse the trend toward marketization even if we wanted to; so why not build on the tradition that emphasizes the virtues of wage earning as a foundation for independence to demand that every citizen who works for a living earns wages (guaranteed through wage subsidies if necessary) that will allow her to meet life’s needs on her own? It resonates deeply with most people’s sense of fairness and justice that, if people work for a living, they should earn enough to pull themselves and their children out of poverty.216 The growing gap between rich and poor threatens democracy. It is no answer to say, “Let them acquire human capital.” Although we should expand people’s ability to acquire the education and training they need to do the work to which they aspire, not everyone will have the inclination to pursue higher education. That alone is no cause for alarm: In a service economy, we will always need people to perform services that do not require higher forms of training. Nonetheless, if work is to provide a foundation for citizenship, then all who work must have social recognition and economic security. Without such a guarantee, our emphasis on work becomes empty (even shameful) rhetoric. It is not simply a lack of jobs, but a lack of jobs that pay enough to live on that plagues many poor communities.217 To alleviate this problem, Edmund Phelps has proposed an ambitious but simple program of graduated wage subsidies for individual low-wage workers. His goal is to recognize that working yields a social dividend—beyond the benefit to the firm—reflected in a market wage. In his plan, the government would supplement the hourly wage provided by employers to bring


Labor’s Subjects

171

workers up to an established rate, with the subsidy declining as the hourly wage increases.218 Phelps’s plan pays the subsidy to employers, who then pass it along to workers,219 but there is no reason why the same graduated wage subsidy could not be paid directly to individual workers (perhaps through an expansion of the earned income tax credit).220 Those skilled in institutional design could work out the details, but the point is to agree on the need to subsidize the wages of individual, low-paid workers to address the long-term discouragement that comes from the steep relative decline in pay that low-skill workers now face. Like Bergmann and Hartmann, I believe public policies should be designed in a way that eliminates the current incentives for gender inequality. Wage subsidies should be structured to encourage women as well as men to plan for or combine parenting with work that pays a living wage.221 Cultivating Empowering Work Conditions Work is important not simply because it gives people a vehicle for serving society and for earning their own keep, but also because it allows diverse groups of people to come together with others to pursue common goals, under conditions that are at least partly of their own choosing and that allow for some measure of self-realization.222 At a minimum, we should protect working people from harassment and abuse at the hands of their supervisors and coworkers. These forms of hostility poison the workplace and undermine one of the major motivations for working, which is the feeling of being connected to others through shared experiences.223 We must also look for creative, systematic ways to encourage workers to relate to one another empathetically across race, gender, age, and other demographic categories. We should, of course, pay attention to structural features of work groups such as numerical balance: Research suggests that when women are fully integrated into jobs at all different levels of authority, they are less likely to experience their workplaces as hostile or alienating.224 We should also look for ways to reward members of dominant groups who reach across boundaries of race, gender, or other difference to support newcomers in solidarity and friendship—such as white men who oppose harassment and discrimination against women and people of color.225 Yet it is not simply members of historically disadvantaged groups,


172

Lives in the Law

but all workers, who deserve empowering working conditions. Although there has been far too little systematic research on how new forms of work organization are actually operating in American workplaces,226 some commentators have suggested ways to implement the new collaborative forms of work so that diverse groups of workers— and not simply management—will reap the benefits. Law professor Susan Sturm argues that structural features of workplace organizations determine the quality of intermediate-level worker interactions. By paying attention to those structures, firms can control the pressures toward in-group preference and discrimination that flow from the increased salience of interpersonal dynamics in team-based decision making.227 To deal with such pressures, she argues, organizations must craft structures that offer constructive methods for resolving conflict, create processes that develop workable goals and standards, and adopt mechanisms of accountability that allow the firm to experiment and learn from mistakes.228 Sturm’s approach finds support in the sociological literature, which has long emphasized the need for structures of accountability to counteract the discriminatory dynamics of discretionary employment systems.229 Like Sturm, law professor Mark Barenberg seeks to harness the positive potential in new collaborative work forms. He focuses less on enhancing organizational effectiveness and resolving ingroup/outgroup problems among workers, and more on developing the potential for workers as a whole to become more actively involved in production and governance issues in ways that will enhance their autonomy and self-realization.230 Barenberg emphasizes that ground-up initiatives will yield more effective worker participation. According to Barenberg, the emerging theoretical and empirical literatures suggest that the most important feature of organizations that are relatively free of “structural coercion, distorted communication, and psychological manipulation” is the combination of “effective team participation and strategic labor representation.”231 Indeed, he says, these two processes are synergistic and are mutually reinforcing.232 Such research suggests that along with teams and other coordinated forms of work that are proliferating, we should make it a priority to create mechanisms that promote employer accountability and employee representation. For those who doubt that employees really care about their roles as workers,233 there is recent, systematic evidence to the contrary. In the most extensive analysis of U.S. workers’ attitudes


Labor’s Subjects

173

toward workplace relationships in more than twenty years, Richard Freeman and Joel Rogers have found that most Americans want significantly more influence over, and input into, their work roles.234 Employees feel that increased participation will both improve the quality of their own working lives and increase workplace efficiency. Interestingly, many managers agree that problems would be solved more effectively if employees had more input.235 Many companies employ some sort of employee-involvement program, but the vast majority of participant workers believe that the programs would be more effective if employees had more say, and many managers agree.236 Although organized workers support their unions (and about one-third of nonunion workers would support a union if given the opportunity), most workers prefer cooperative management-labor relations in which management participates and workers retain strong levels of influence. According to Freeman and Rogers, “The majority of workers . . . want an institutional form that does not effectively exist in the United States: joint employee-management committees that discuss and resolve workplace problems.”237 Democratic principles demand that people have more input into how their work is structured. To the extent that the workplace can be structured efficiently in more than one fashion (which is often the case), we should create mechanisms that allow workers to arrange their work in a way that maximizes their sense of challenge and their intrinsic satisfaction.238 As Nora Watson, an editor, explained: Jobs are not big enough for people. It’s not just the assembly line worker whose job is too small for his spirit, you know? . . . Here, . . . where I had expected to put the energy and enthusiasm and gifts that I may have to work—it isn’t happening. They expect less than you can offer. . . . It’s so demeaning to be here and not be challenged.239 I have argued that all forms of work deserve dignity, even the most routinized. But this recognition does not require blinding ourselves to the fact that many people do work that can dull the mind or wreck the body and spirit. Some jobs will remain tedious or onerous in content. But even those jobs can be structured in more satisfying ways by giving workers more autonomy and a greater sense of control over the pace, rhythms, or social possibilities of the job. It is one thing to pick up trash


Lives in the Law

174

in a demeaning uniform, working under an autocratic supervisor’s nose, or on a pay system that forces one to rush constantly in order to survive. It may be quite another thing to do the same work dressed in clothing of one’s choice, working at a reasonable pace alongside a colleague whose companionship one enjoys, and earning a living wage. If the work cannot be reorganized along more healthful lines, then we should create clear paths for moving upward, sideways, and even out—and elsewhere—before lasting damage is done. As Dave Stribling, a steelworker, put it, Where you have to eat all that dust and smoke, you can’t work hard and live a long life. You shouldn’t be made to work till sixtytwo or sixty-five to reap any benefit. We’re paying social security, and most of us will never realize a penny from it. That’s why they should give it to him at a younger age to let him enjoy a few years of the life he ruined workin’ in the factory.240 People are now living longer now, with better health. We should allow people who do damaging work that benefits the rest of us to leave such jobs and retrain for others before they destroy their health. Indeed, such retraining rights may prove to be necessary for almost everyone in the new economy, where the fast pace of technology renders many jobs obsolete in a few years’ time. To give everyone access to a life’s work, we must create retraining and retirement options that sustain rather than destroy life, and that allow people to reshape their skills to meet life’s evolving demands. Repositioning Work as a Cornerstone for Family and Civic Life We must do still more. As I suggested earlier, we must rethink the relationship between working life and family and civic life. Our existing models are woefully inadequate. On the one hand, we have “productionist” models in which work, harnessed to the end of productivity, overtakes everything else. As an alternative, we have only gendered “accommodationist” models in which the job remains the realm of men, but the family retains the fealty of women. From the right end of the spectrum, productionist models depict working life and working people exclusively in narrow efficiency


Labor’s Subjects

175

terms.241 In these models, firms appear only as rational, task-oriented institutions with definable rules and procedures that harness all human drive to the end of productivity. Managers and the firm are considered the repositories of rationality, while employees are seen as the repositories of emotion. Working people are a threat, precisely because they embody that messy, “outside” stuff of life—sexuality and reproduction, disability and disease, jealousy and emotion, even playfulness and passion—and threaten to bring it into, and thereby corrupt, the firm. To contain the threat, the worker must be conceptualized as an abstract category—an input of production that is efficient only to the extent that he or she is stripped of the layers of experience that do not serve the production function. Taylor’s scientific management was an early example of such an approach: By separating mental from manual labor, Taylorism justified management control over workers, whose physicality was to be disciplined through task specialization and machinery in order to serve the ends of production.242 The human capital model provides another example of a productionist approach. In an analogy to machines (physical capital), working people are valued for (and even referred to as) human capital, a term describing the investments people make in acquiring education or skills that will make money for the firm. In this model, workers are paid in accordance with their productivity, which is thought to correspond to their education and training and, in Becker’s more recent model, the stocks of energy they invest in their jobs.243 These investments are viewed as exogenous inputs to the production process; that is, they are acquired outside the workplace, which is conceived as a self-contained sphere. Thus, in human capital theory, inequality within the workplace is rationalized as a product of what happens outside it—most notably, in the mythical white middle-class heterosexual family, where women allegedly choose their roles as happy homemakers.244 In human capital theory, therefore, the fact that women earn less and have less desirable jobs than men is a product of their encumbrances in these “other” spheres of life, which render them less productive. Like Taylorism, human capital theory is a rationalizing model that reduces work to its flattest dimensions, while at the same time legitimating inequality. In these productionist models, work has a narrow definition that relates exclusively to serving the ends of production. There is no room for the concept of work as a vocation or a life’s project, something to which people can commit their hearts and souls. There is no room for


176

Lives in the Law

the concept of work as community, the glue that holds people together as they struggle to accomplish common ends. There is no room for the concept of work as citizenship, the foundation of belongingness and security on which democracy depends. There is no room for integrating working life with family and civic life in a multifaceted, meaningful way. The sole purpose of work is making profit for the firm. Life experiences like parenting, aging, sickness, sexuality, or even solidarity are simply not conceived as part of the workplace landscape.245 To the apparent left of productionist models, we have “accommodationist” models that turn out to be no more than the gendered complements of their productionist counterparts. As we have seen, important strands of contemporary feminism replicate the gender-based division of labor by assuming a productionist model for men while positing precisely the opposite for women. Men are imagined to be the workers firms want them to be; women are assumed to be paragons of domesticity, who undertake paid work only insofar as it comports with their family roles. Joint-property proposals assume that men are breadwinners and domestic absentees, while women are primary caretakers and secondary earners. Welfare approaches assume women will engage in full-time or near full-time homemaking and caregiving. To paraphrase sociologists Roslyn Feldberg and Evelyn Glenn, such strategies envision a “job model” for men and a “gender model” for women.246 Work-family accommodation models build on similar conceptual foundations. Accommodationists assume that women are more committed to family relations than men, so if we want to ensure that women can participate in the workplace, we must acknowledge this difference and provide special accommodation for women’s domestic roles. Accommodationists therefore seek policies that make work more “flexible”—such as maternity leave, family leave, more part-time or temporary jobs, and tax and benefit reforms designed to encourage such intermittent workplace participation247—in order to allow women to balance paid work with “our” family responsibilities. Like joint property proponents, accommodationists appear to be relatively untroubled by the segregationist implications of this line of thought.248 It would not concern them greatly if women ended up holding parttime, or even temporary or contingent jobs, more frequently than men. In fact, feminists from this tradition sometimes deride long working hours, unhampered by family constraints, as a “male model” that they believe women should reject.249


Labor’s Subjects

177

Yet, there is rarely an attempt to question whether overwork is harmful to men too, or whether most men have chosen such long hours. Nor is there an effort to examine whether some women would prefer or benefit from a deeper connection to paid work, in which case the “male” work pattern might turn out to harbor deep female longings.250 Often, there is even a failure to come to terms with a realistic appraisal of what these forms of accommodation might mean for women. Part-time jobs and other nonstandard forms of employment have well-known disadvantages, including lower pay, lack of benefits, and less promotional opportunity;251 and at least so long as they are part of a segregated “mommy track,” such arrangements are also deeply stigmatizing, even to highly paid professional workers.252 Contrary to productionist and accommodationist views, work isn’t just something people do to service corporations or even to serve our families. We need a new model that envisions the deep connections between work and other realms of life, without conflating them. We need an antiproductionist, beyond-accommodationist vision that treats work as a cornerstone—but not a substitute—for family, politics, and civic life. As Nancy Fraser puts it: “The trick is to imagine a social world in which citizens’ lives integrate wage earning, caregiving, community activism, political participation, and involvement in the associational life of civil society—while also leaving time for some fun.”253 Not only must we renew our resolve to dismantle sex- and racebased segregation and hierarchy on the job through vigorous antidiscrimination, affirmative action, antiharassment, and pay equity measures: We must also restructure working time so as to eliminate the gender disparity associated with full-time and nonstandard work. This means abandoning proposals to create part-time or other nonstandard jobs for women, and redefining what is “standard” in a way that will encourage men and women from all walks of life to work at a livable pace. In this regard, it is useful to consider class, as well as gender, to better understand current patterns of working time. As sociologists Jerry Jacobs and Kathleen Gerson have shown, the labor market is currently stratified: Managerial and professional employees typically work very long hours at a single job, while less-skilled workers often have trouble finding one job that will provide them with enough hours to make a living.254 Jacobs and Gerson propose legal reforms they hope will alleviate both problems at once. They advocate requiring employers to pay pro-


178

Lives in the Law

portional benefits. Under such a system, all workers would receive benefits (such as pension contributions) that vary with the number of hours they work. To deal with the problem of substandard jobs, they would include those who work less than full-time in their proposal. By forcing employers to pay benefits tagged to the number of hours worked in such jobs, they hope to remove the current incentive for employers to create part-time and other nonstandard jobs simply to avoid paying benefits to full-time workers; instead, they hope, firms would create nonstandard jobs only when there are genuine efficiency reasons for doing so. At the other end of the spectrum, Jacobs and Gerson would also include those who work overtime in their proposal, including managerial and professional workers. By doing so, they hope to remove the current incentive for employers to require overly long hours from their current employees—rather than hiring new workers—simply to avoid paying the benefits they would pay newly hired workers. Again, firms should require long hours from incumbents only when there are efficiency reasons for doing so. Ultimately, by making both part-time and overtime jobs more costly compared to those in the current regime, Jacobs and Gerson hope to stimulate convergence toward a new mean in which most employees work neither too little nor too long.255 But our current mean is too high. As I argued above, and as numerous other scholars have urged, we must consider legislative measures to reduce the standard full-time workweek for everyone.256 American men and women work at paid jobs among the longest hours in the industrial world.257 On average, men work forty-five hours per week, while women work forty hours per week at their jobs. Contrary to some popular explanations, these long hours are not always chosen: Almost half of each group say they would like to work fewer hours than they do.258 That most Americans would prefer to work fewer hours is not surprising, given the prevalence of single-parent and dualearner families and the fast pace of contemporary life. In the face of these trends, we should consider amending the Fair Labor Standards Act to reduce the standard workweek to thirty-five or even thirty hours per week for everyone—including the upper-level workers who are currently exempted—as a way to create a new cultural ideal that would allow both women and men more time for home, community, and nation.259 A reduced workweek should alleviate work-family conflict for everyone and help promote greater sharing of employment and


Labor’s Subjects

179

housework among men and women.260 It also encourages work sharing in a way that furthers the goal of making standard jobs available to everyone,261 while mitigating the downward pressure on wages. This is not simply a utopian proposal. A number of European nations have reduced the standard workweek in an effort to promote work sharing. France, for example, currently mandates a thirty-fivehour workweek;262 Germany has also reduced the standard workweek.263 Although such programs have had mixed success at reducing unemployment levels in Europe, there is evidence that national legislation can change norms around working time in the United States. When the forty-hour workweek was first implemented, the proportion of men and women working in retail and wholesale trade more than forty hours a week declined substantially in the North and by even greater amounts in the South (where the greater effectiveness of minimum wage laws precluded employers from avoiding overtime penalties by adjusting straight-time wages).264 More recently, some states have begun to revive these sorts of historical initiatives: Maine enacted a law that limits the amount of overtime employers can demand.265 Some trade unions have bargained for private sector reductions in working hours—such as the deal struck at IG Metall, which reduced the workweek to thirty-five hours in exchange for the employer’s power to allocate hours more flexibly.266 Some firms have even begun to reduce the workweek voluntarily, in response to high turnover costs and low productivity rates caused by worker burnout.267 Just as we must create conditions under which all people can work without sacrificing other important activities, so too must we create work-related organizations that can incorporate the full range of people’s experiences and emotional lives. Sexuality and reproduction are a part of life, for example, as are disability and aging. The workplace is not hermetically sealed from these foundational courses of life, and we should not seek to make it so; such a strategy only lends legitimacy to the Taylorist insistence that we suspend our humanity while we are at work. Sex harassment law offers one opportunity for such an inclusive approach. Instead of conceptualizing the workplace as a sex-free zone, we should strive to create the space in which women, sexual minorities, and our allies have the power to insist that sex, solidarity, and competence coexist—a world in which neither the demands of production nor political correctness outstrip the aspiration to combine work and citizenship with the practice of being fully human.268


180

Lives in the Law

Perhaps most foundationally, a rejection of Taylorism means acknowledging that people are enriched and rejuvenated at work when they are able to participate fully and deeply in other spheres of life— and vice versa. Broad experience in family and civic affairs enhances people’s ability to contribute to organizational life, rather than detracting from it. We recognize that this is true for some professionals, such as teachers, lawyers, police officers, even college presidents; we have also tended to believe it is true for middle-class women. But particularly in a service economy, the same could be said for all workers. By the same token, it is not only men, but also women whose participation in work enhances their value as family members and citizens. Work is not inherently in conflict with family or civic life. Working can make us better parents and citizens by expanding the knowledge and experience we bring to those roles. There is research suggesting, for example, that women who work for a living are more likely to believe that women are entitled to be equal citizens—and perhaps even better able to marshal support for this position—than are women who are not employed. Sociologist Myra Marx Ferree found in 1980, for example, that working-class, married women who work for a living were more likely to hold feminist attitudes than those who did not work.269 This was true even of women who worked at least partly out of economic necessity, rather than free choice. Although the employed women and the homemakers were almost equally likely to report that their husbands favored egalitarian sex roles, the majority of the employed women married to men with traditional views nonetheless held gender-egalitarian attitudes, while only one-third of the housewives married to traditional-minded men held views that differed from their husbands’ opinions.270 Ferree’s findings comport with a larger literature that suggests that women who work for a living are more likely than full-time homemakers to support egalitarian gender roles. In her classic study of the Equal Rights Amendment (ERA), for example, Jane Mansbridge found that in the 1974 to 1982 period, women in the labor force were significantly more likely than homemakers to favor the ERA, were more approving of interracial marriage, abortion, sex education, and birth control for teenagers, and were less willing to condemn homosexuality as always wrong.271 Working women were also more likely to approve of a married woman earning money in business or industry even if she has a


Labor’s Subjects

181

husband capable of supporting her, and were less likely to believe that “[m]ost men are better suited for politics than most women” or that “[w]omen should take care of running their homes and leave running the country up to men.”272 Taken as a whole,273 this literature suggests that there is something about the experience of working that transforms consciousness and enlarges the way one sees oneself—and one’s rights—as a citizen (and probably also how one is seen by others). Perhaps this is why early second-wave feminists fought so hard for the full inclusion of women in working life.274 Independence from a husband’s (or father’s) economic support, and the day-to-day experience of struggle and triumph in the workaday world, bring a sense of inclusion and entitlement that can profoundly affect women’s consciousness. If working enlarges the way people see themselves as citizens, it can also enrich the way they define themselves and our obligations as parents. People work to provide better opportunities for their children than they had for themselves. This of course includes economic opportunities—working to pay for decent clothing, secure housing, decent schools, or even a college education. But it also means much more: It means working to create a world in which one’s children—and other people’s children—will have better life chances. For many parents, just going to work each day and holding down a job that promises some measure of economic stability is a powerful gift to their children. Surely Michelle Crawford represented many poor mothers who have made the transition from welfare to work when she explained how this shift had transformed her life: “Today, I’m working as a machine operator [earning $8.20 an hour], providing for my family. Now, I tell my kids that this is what you get when you do your homework.” Even amidst the toil and trouble that her life still entails, Ms. Crawford has found comfort in the routine of going to work: “I like getting up in the morning, going to my job. I just feel good about myself,” she said, echoing William Julius Wilson’s remarks about the important of having a place to go every day that gives life structure and purpose. Like Wilson, Ms. Crawford emphasizes the role-modeling effect, but she also hints of something more—the gift of having a mother who takes care of herself: “I used to think I would always be on welfare,” she said, but now “my kids see a difference in me.”275 If parents like Michelle Crawford feel they are doing something


182

Lives in the Law

positive for their children by working, there is evidence that their children see things the same way as they come of age. One of the most moving things I have read is a story about Barnard College’s contest for high school girls to write essays on the topic “A Woman I Admire.” Many of the girls, particularly immigrants, wrote about their own mothers’ work. To take one example: It used to anger Po Lin Ho that her mother had to sit hunched over a sewing machine 12 hours a day, 6 days a week, in a dimly lighted factory in Chinatown. As Po Lin, a 16-year-old junior . . . on the Lower East Side put it, the family had an easier time in Hong Kong. Now, after six years in New York City, Po Lin says she is proud and grateful for her mother’s work. . . . “One day, sometime last year,” she wrote, “I overhear my mom talking on the phone with my grandmother. Mom is crying. ‘Oh, how I wish I didn’t leave Hong Kong,’ she tells my grandmother. ‘I miss you so much. But I wanted what is best for my children. I know that in Hong Kong it would be almost impossible for them to get into college. But they hate it here, especially Po Lin. Not a day goes by that she doesn’t berate me for leaving Hong Kong. Was I so wrong to want the best for my children?’ “At that moment I understand why we had to come to America. Mom just wants the best for my brothers and me.” . . . “The things she’s done for me are so great. I will never forget them.” Another young student, Selena, wrote about her mother, a fiftyfour-year-old farmworker from Alabama who has worked in New York as a housekeeper, and then as a foster parent. “I’m proud that my mother uses her time to try to help homeless children gain some equanimity in their lives, [even though] we always feel the stress.”276 These young women are writing about so many different things their mothers’ work conveyed: love, discipline, and self-sacrifice, but also self-respect and agency, the sense that the mothers (and by example, their daughters) could act to create a better world, for themselves, for their own children, and perhaps for others, too. It isn’t just poor young immigrant women who testify to such gifts. In a recent interview singer Mary Travers, of the famed folk trio Peter, Paul, and Mary, credited her mother with being the person who had influenced her life the most.


Labor’s Subjects

183

My mother was a marvelous woman: bright, beautiful, dry wit. She was the head of public relations at Danbury Hospital for years. She wrote a couple of books. One was on Margaret Sanger for children, a cookbook, one about the children’s crusades. I was surrounded by a very committed community growing up in Greenwich Village. Most of my mother’s friends were writers and artists, people who by nature are committed and, also many of them were committed in what I call the ethical-political sense. So I grew up listening to Paul Robeson and Pete Seeger, believing that inequality was an evil, that women had the right to be anything they want to be and should work. Feminism wasn’t something I discovered in the 60’s. It was something I had generational input into. The women who had been the most vibrant in my life all worked. And were responsible for themselves as well as for and to other people.277 Conclusion At the dawn of the twenty-first century, it is clear that a new era is upon us. The nature of work is changing dramatically in ways that affect us all. Many women and men are working harder and harder just to survive—all too often in fleeting, uncertain arrangements that leave them wondering where their next paycheck, circle of colleagues, and sense of self-worth is coming from. This is a fate that women and disadvantaged men have long confronted, but now the once-secure men of the middle classes are facing it as well. What we do about this crisis will be a defining feature of our age. We could abandon any commitment to improving the conditions of work, leaving people to the mercies of the market. But that would be shortsighted, because work sustains democracy. Paid work has provided the historic foundation for democratic citizenship, and it remains difficult to see what other institution might ground the universal, equal citizenship to which most of us still aspire. We could sidestep the problems with work and provide people a guaranteed basic income. But, however meritorious such an approach, we should be clear that it would only lessen (and perhaps even obscure) the problems with work—it would not eliminate them. We cannot give everyone an income that is generous enough to support a decent lifestyle on its own, so, even with a guaranteed income, few people other than the indepen-


Lives in the Law

184

dently wealthy would be able to opt out of paid work. For the foreseeable future, it seems, work will be with us. As long as it is with us, it will affect us profoundly. Who we are—as individuals, as men and women, as a society, as a nation—will be tested and forged through what we do, or fail to do, to secure our common future as labor’s subjects. NOTES I would like to thank Rose Saxe, Lauren McGarity, Jamie Kohen, Martha Coven, and Katie Rosenfeld for superb research assistance and Gene Coakley for remarkable help with sources. I am indebted to a number of my friends and colleagues—including Bruce Ackerman, Anne Alstott, Kristin Bumiller, Martha Cover, Lawrence Douglas, Bill Eskridge, Bob Gordon, Janet Guggemos, Barbara Reskin, Stephen Rich, Carol Sanger, Austin Sarat, Kathy Stone, Martha Umphrey, Lucie White, Kenji Yoshino, and Noah Zatz—for helpful comments and conversations. Mistakes and errors of judgment are, of course, mine alone. 1. Linda Gordon, Pitied but Not Entitled: Single Mothers and the History of Welfare, 1890–1935 (New York: Free Press, 1994), 53. 2. See Kenneth L. Karst, “The Coming Crisis of Work in Constitutional Perspective,” Cornell Law Review 82 (1997): 530–33; Anthony Kronman, “Meaningful Work,” typescript, New Haven, February 1995, 15–20. 3. See Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War (New York: Oxford University Press, 1995), xii–xiii; Alice Kessler-Harris, A Woman’s Wage: Historical Meanings and Social Consequences (Lexington: University Press of Kentucky, 1990), 31–32; Carole Pateman, “The Patriarchal Welfare State,” in Democracy and the Welfare State, ed. Amy Gutmann (Princeton: Princeton University Press, 1988), 231, 238. 4. See Judith N. Shklar, American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1991), 64. 5. See Foner, Free Soil, xii–xvii. 6. See Lochner v. New York, 198 U.S. 45 (1905) (associating freedom of labor with freedom of contract). 7. See Amy Dru Stanley, From Bondage to Contract: Wage, Labor, Marriage, and the Market in the Age of Slave Emancipation (New York: Cambridge University Press, 1998), 175–217; Nancy Fraser and Linda Gordon, “A Genealogy of Dependency: Tracing a Keyword of the U.S. Welfare State,” Signs 19 (1994): 314–19. 8. See Foner, Free Soil, xxiii–xxiv. 9. Ibid., xxxviii. 10. See Gordon, Pitied but Not Entitled, 209–51; Shklar, American Citizenship, 79–88; William E. Forbath, “Caste, Class, and Equal Citizenship,” Michigan Law Review 98 (1999): 25–60, 85–89. Some scholars have argued that a universal right to work was an important part of the New Deal—although much of that agenda went unrealized. See Philip Harvey, Securing the Right to Employment:


Labor’s Subjects

185

Social Welfare Policy and the Unemployed in the United States (Princeton: Princeton University Press, 1989), 3–4, 18–20, 99–117. Indeed, President Franklin D. Roosevelt’s 1944 State of the Union address called upon Congress to create an “economic bill of rights” (Harvey, 4). The first two items on the agenda were (1) “The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation”; and (2) “The right to earn enough to provide adequate food and clothing and recreation.” Franklin D. Roosevelt, Message to the Congress on the State of the Union, January 11, 1944, in The Public Papers and Addresses of Franklin D. Roosevelt, ed. Samuel I. Rosenman (New York: Random House, 1950), 13:32, 41. 11. William Julius Wilson, When Work Disappears: The World of the New Urban Poor (New York: Knopf, 1996), 61–65. 12. Ibid., 73. 13. See ibid., 73–78; Jay MacLeod, Ain’t No Makin’ It: Aspirations and Attainment in a Low-Income Neighborhood (Boulder, Colo.: Westview, 1995), 217–31 (noting how inner-city unemployment corrodes family and neighborhood networks). 14. Richard Sennett, The Corrosion of Character: The Personal Consequences of Work in the New Capitalism (New York: Norton, 1998), 130; see also Susan Faludi, Stiffed: The Betrayal of the American Man (New York: W. Morrow, 1999), 61–66 (describing unemployment’s social and psychological impact on white, middle-aged, college-educated men). 15. See Amartya Sen, “The Penalties of Unemployment,” Banca D’Italia, Working Paper No. 307, 1997, 14; see also Arthur H. Goldsmith et al., “The Psychological Impact of Unemployment and Joblessness,” Journal of Socio-Economics 25 (1996): 349 (arguing that young females suffer more psychological scarring than males from unemployment). 16. See Rosalind C. Barnett and Caryl Rivers, She Works, He Works: How Two-Income Families Are Happy, Healthy, and Thriving (Cambridge: Harvard University Press, 1996), 28–29. 17. Rosabeth Moss Kanter, Men and Women of the Corporation (New York: Basic Books, 1977), 3. 18. The influence of the industrial order on our innermost selves is, of course, one of the themes of the sociological classics. See generally William H. Whyte Jr., The Organization Man (New York: Simon and Schuster, 1956) (showing how the ideology of belonging to the corporation captured middle-class managers and reshaped social life in the 1950s); Herbert Marcuse, One-Dimensional Man: Studies in the Ideology of Advanced Industrial Society (Boston: Beacon Press, 1996), 8–12. 19. The Remains of the Day, Columbia Pictures Corp., 1993. 20. For a fuller elaboration of this point, see Vicki Schultz, “Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Defense,” Harvard Law Review 103 (1990): 1829–32 and sources cited therein; see also Susan Eisenberg, “Electrician,” in Hard-Hatted Women: Stories of Struggle and Success in the Trades, ed. Molly Martin (Seattle: Seal Press, 1988), 216, 224.


186

Lives in the Law

21. See Mary Walshok, Blue-Collar Women: Pioneers on the Male Frontier (Garden City, N.Y.: Anchor, 1981), 140–48. 22. As machinist Sue Doro put it, “Being in the trades taught me to be stronger. . . . [I]t gave me a sense of self-worth. Working with machinery also gave me a feeling of power that I had never experienced before.” Sue Doro, “Machinist,” in Martin, Hard-Hatted Women, 261. 23. Studs Terkel, Working: People Talk about What They Do All Day and How They Feel about What They Do (New York: Pantheon, 1974). 24. See Schultz, “Telling Stories,” 1817, 1829–32. 25. Gary Becker, A Treatise on the Family (Cambridge: Harvard University Press, 1981), 22 (“If women have a comparative advantage over men in the household sector when they make the same investments in human capital, an efficient household with both sexes would allocate the time of women mainly to the household sector and the time of men mainly to the market sector”). 26. See Jacob Mincer and Solomon W. Polachek, “Family Investments in Human Capital: Earnings of Women,” Journal of Political Economy 82 (1974): S94; Solomon W. Polachek, “Occupational Self-Selection: A Human Capital Approach to Sex Differences in Occupational Structure,” Review of Economics and Statistics 63 (1981): 62–63; Harriet Zellner, “The Determinants of Occupational Segregation,” in Sex, Discrimination, and the Division of Labor, ed. Cynthia B. Lloyd (New York: Columbia University Press, 1975), 133–43; cf. Becker, Treatise on the Family, 25 (arguing that “the market wage rates of married men will exceed those of married women, partly because women spend more time in the household and invest more in household human capital”); Victor R. Fuchs, Women’s Quest for Economic Equality (Cambridge: Harvard University Press, 1988), 4 (arguing that “[w]omen’s weaker economic position results primarily from conflicts between career and family, conflicts that are stronger for women than for men”). 27. See Paula England, Comparable Worth: Theories and Evidence (New York: Aldine de Gruyter, 1992), 25, 52; Paula England, “The Failure of Human Capital Theory to Explain Occupational Sex Segregation,” Journal of Human Resources 17 (1982): 369. 28. See Gary S. Becker, “Human Capital, Effort, and the Sexual Division of Labor,” Journal of Labor Economics 3 (1985): S52 (claiming occupational segregation by sex and the accompanying wage disparities occur because “married women seek occupations and jobs that are less effort intensive and otherwise are more compatible with the demands of their home responsibilities”). 29. For recent reviews of empirical evidence casting doubt on human capital theory, see Samuel Cohn, Race and Gender Discrimination at Work (Boulder, Colo.: Westview, 2000), 80–88, 122–26; Jerry A. Jacobs, Revolving Doors: Sex Segregation and Women’s Careers (Stanford: Stanford University Press, 1989), 39–44, 58–60, 148–50, 169–74; Donald Tomaskovic-Devey, Gender and Racial Inequality at Work (Ithaca, N.Y.: ILR Press, 1993), 50–51, 132–34; Michael Selmi, “Family Leave and the Gender Wage Gap,” North Carolina Law Review 78 (2000): 707, 718–34.


Labor’s Subjects

187

30. “Sex segregation in employment [is] the dominant . . . explanation in the sociological literature for the male-female earnings gap” (TomaskovicDevey, Gender and Racial Inequality, 111). For estimates of the degree of the male-female wage gap attributable to segregation, see ibid., 121, 123 (estimating from a 1989 random sample of North Carolina workers and jobs that 77 percent of all women would have to change to sex-atypical jobs to achieve sex integration, and that at least 56 percent of the male-female earnings gap was attributable to such sex segregation of jobs); see also Donald J. Treiman and Heidi I. Hartmann, eds., Women, Work, and Wages: Equal Pay for Jobs of Equal Value (Washington, D.C.: National Academy Press, 1981), 33–37 (citing estimates showing that between 30 percent and 71 percent of the wage gap is attributable to the segregation of occupations, depending on the level of detail of the occupational classification used in the analysis). It is well known that estimates that are based on the use of occupation-level data (such as Treiman and Hartmann’s) are biased downward, because even many apparently integrated occupations remain highly segregated at the firm level, and especially at the job level. 31. See Kimberly Bayard et al., “New Evidence on Sex Segregation and Sex Differences in Wages from Matched Employee-Employer Data,” NBER Working Paper No. 7003, 1999, 40–41 (finding, contrary to previous studies, that a substantial portion of the wage gap is attributable to pay differences between men and women in the same jobs that may violate the Equal Pay Act). 32. For studies of women who change fields, see Jacobs, Revolving Doors, 148–50 (finding that women’s probability of moving across sex-typed occupational boundaries does not vary significantly by age, marital status, parental status, or number and ages of children); Rachel A. Rosenfeld, “Job Changing and Occupational Sex Segregation: Sex and Race Comparisons,” in Sex Segregation in the Workplace: Trends, Explanations, Remedies, ed. Barbara F. Reskin (Washington, D.C.: National Academy Press, 1984), 72–77 (confirming that, for both black and white women, the likelihood of changing the sex-type of their occupations was independent of marital status and whether they had interrupted their careers to care for children). For studies of women likely to be in a field at any given time, see Tomaskovic-Devey, Gender and Racial Inequality, 43, 50–51 (reporting that women’s probability of holding a female-dominated job is not significantly associated with the presence of children and, in fact, “women with children are slightly more likely to be in gender-balanced jobs”); Andrea H. Beller, “Occupational Segregation by Sex: Determinants and Changes,” Journal of Human Resources 17 (1982): 383 (finding that sex-type of employment does not vary according to marital status or number of children); Mary Corcoran et al., “Work Experience, Job Segregation, and Wages,” in Reskin, Sex Segregation, 188 (reporting that sex-type of employment is not significantly related to continuity of labor force participation); England, “Failure of Human Capital Theory,” 367–68 (finding that sex-type of employment does not vary according to marital status or continuity of labor force participation). 33. See England, Comparable Worth, 14.


188

Lives in the Law

34. See Denise D. Bielby and William T. Bielby, “She Works Hard for the Money: Household Responsibilities and the Allocation of Work Effort,” American Journal of Sociology 93 (1988): 1031, 1048, 1055–58; see also William T. Bielby and Denise D. Bielby, “Telling Stories about Gender and Effort: Social Science Narratives about Who Works Hard for the Money,” in Economic Sociology for the Millennium, ed. Mauro F. Guillén et al. (forthcoming, 2001), 3–4 (citing empirical research showing that employed women work at their jobs as hard as or even harder than men). 35. See Peter V. Marsden et al., “Gender Differences in Organizational Commitment: Influences of Work Positions and Family Roles,” Work and Occupations 20 (1993): 384; William T. Bielby et al., “Who Works Hard for the Money? ‘Efficiency Wages,’ Work Organization, and Gender Differences in the Allocation of Work Effort,” typescript, Santa Barbara, Calif., August 1995, 2. 36. Cf. Cynthia Cockburn, Machinery of Dominance: Women, Men, and Technical Know-How, (Boston: Northeastern University Press, 1988), 230–31 (arguing that the nature of workplaces and work relations perpetuates the sexbased division of labor, which benefits men by eliminating women as workplace competitors and ensuring that they will continue to provide domestic services at home); Juliet B. Schor, The Overworked American: The Unexpected Decline of Leisure (New York: Basic Books, 1992), 84, 94–99 (arguing that women’s exclusion from the labor market and society’s failure to collectivize housework have artificially devalued homemakers’ time, an inefficiency that along with the sex segregation of work has kept the level of household labor performed by women artificially high); Schultz, “Telling Stories,” 1816 (arguing that sex segregation does not result because women’s commitment to family life leads them to choose marginalized female-dominated jobs, but rather because labor markets and workplaces are structured in ways that disempower women from pursuing the higher-paying jobs that would raise the opportunity cost of time spent on housework). 37. See Becker, “Human Capital,” 21. 38. 628 F. Supp. 1264 (N.D. Ill. 1986). 39. See Schultz, “Telling Stories,” 1776–1815 (analyzing courts’ acceptance of the lack-of-interest defense and the evidentiary and ideological factors that contribute to judges’ willingness to do so); see also Vicki Schultz and Stephen Petterson, “Race, Gender, Work, and Choice: An Empirical Study of the Lack of Interest Defense in Title VII Cases Challenging Job Segregation,” University of Chicago Law Review 59 (1992): 1095–1135 (comparing judicial treatment of the lack-of-interest defense in race and sex discrimination cases). 40. See Sandi E. Cooper, “Women’s History Goes on Trial: EEOC v. Sears, Roebuck & Co., Introduction to the Documents,” Signs 11 (1986): 757–66 (reprinting offer of proof submitted by historian Rosalind Rosenberg in the EEOC v. Sears, Roebuck & Co. case). 41. See Schultz, “Telling Stories,” 1800–1805. 42. See Vicki Schultz, “Reconceptualizing Sexual Harassment,” Yale Law Journal 107 (1998): 1683.


Labor’s Subjects

189

43. See ibid., 1692–1710 (showing that sex harassment law as it has evolved in the lower courts is based on a sexual paradigm that treats harassment as an expression of men’s sexual desire or dominance). 44. See, e.g., Catharine A. MacKinnon, Sexual Harassment of Working Women (New Haven: Yale University Press, 1979), 220–21 (arguing that workplace sexual harassment is an expression of men’s eroticization of women’s subordination); Barbara A. Gutek, “Understanding Sexual Harassment at Work,” Notre Dame Journal of Law, Ethics, and Public Policy 6 (1992): 352–57 (theorizing that workplace sexual harassment reflects the “sex-role spillover” of inegalitarian views of women formed in the domestic sphere). 45. See Schultz, “Reconceptualizing Sexual Harassment,” 1761 n. 409 (summarizing and explaining the assumptions that underlie conventional understandings of harassment). 46. For examples of work in this tradition, see Joan Williams, Unbending Gender (New York: Oxford University Press, 2000); Martha M. Ertman, “Commercializing Marriage: A Proposal for Valuing Women’s Work through Premarital Security Agreements,” Texas Law Review 77 (1998): 41–46 (proposing premarital “security agreements” as a way of compensating spouses for household labor); Katharine B. Silbaugh, “Marriage Contracts and the Family Economy,” Northwestern University Law Review 93 (1998): 67 (arguing that a homemaker’s nonmonetary contributions should be treated equally with the husbands’ monetary contributions in premarital contract cases); Katharine Silbaugh, “Turning Labor into Love: Housework and the Law,” Northwestern University Law Review 91 (1996): 1 (arguing that the legal system should treat housework the same as paid work); see also Linda R. Hirshman and Jane E. Larson, Hard Bargains: The Politics of Sex (New York: Oxford University Press, 1998), 280–83 (proposing the creation of a “concubinage” contract that would compensate women for their unmarried sexual relationships with men, a proposal which would extend the economic valuation of women’s household work to include sexual relations). 47. See Williams, Unbending Gender, 124–31; Ertman, “Commercializing Marriage,” 39–46; Silbaugh, “Marriage Contracts,” 108–9. 48. See Martha A. Fineman, The Neutered Mother: The Sexual Family and Other Twentieth Century Tragedies (New York: Routledge, 1995), 161–64, 231–33 (arguing that the cost of supporting the work of caregivers should not be allocated to private families, but should be borne instead by society as a whole); Eva Feder Kittay, Love’s Labor: Essays on Women, Equality, and Dependency (New York: Routledge, 1999), 140–46 (arguing that dependency work should not be underwritten by private family providers, but should be supported instead by “public provision” that recognizes the indispensable role of dependency workers and the importance of their participation as full citizens); Martha A. Fineman, “The Nature of Dependencies and Welfare ‘Reform,’” Santa Clara Law Review 36 (1996): 290, 308–9. Although not all forms of household work create resources that benefit society as a whole (such as those associated with elite forms of consumerism or


190

Lives in the Law

“keeping up with the Joneses”), some clearly do. Good child care, for example, creates a resource that is essential to a well-functioning democracy: children who have the developmental capacity to become adults who will engage in the rational, deliberative thought that characterizes an informed citizenry. See Susan Moller Okin, Justice, Gender, and the Family (New York: Basic Books, 1989), 99–100; Anne C. Dailey, “Constitutional Privacy and the Just Family,” Tulane Law Review 67 (1993): 1021–25. 49. See Schor, The Overworked American, 85. 50. Of course, domestic workers are one of the two groups most frequently excluded from labor law’s protection; the other group is farmworkers. See Marc Linder, “Farm Workers and the Fair Labor Standards Act: Racial Discrimination in the New Deal,” Texas Law Review 65 (1987): 1335–93 (discussing the exclusion of farmwork from the Fair Labor Standards Act); Peggie R. Smith, “Regulating Paid Household Work: Class, Gender, Race, and Agendas of Reform,” American University Law Review 48 (1999): 854 and n. 13. Nonetheless, it still seems more promising to organize paid domestic workers than unpaid spouses. For a recent set of creative proposals for doing so, see Peggie R. Smith, “Organizing the Unorganizable: Private Paid Household Workers and New Approaches to Employee Representation,” North Carolina Law Review 79 (2000): 45. 51. The recent victory of seventy thousand California home health care workers in organizing a union, for example, holds promise for highlighting— and upgrading—the value of service work. See Vincent J. Schodolski, “Union Signals a Health Trend: 75,000 Home-Care Workers Organize in L.A.,” Chicago Tribune, February 26, 1999, 3. Such victories continue the work begun in the comparable-worth campaigns of the 1980s. See Michael McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago: University of Chicago Press, 1994), 3–4 (discussing comparable worth and other work rights campaigns). 52. See Schor, The Overworked American, 85. 53. See generally Margaret Jane Radin, “Market Inalienability,” Harvard Law Review 100 (1987): 1885 (arguing that commodification can do violence to some relationships). Consciously or unconsciously, some feminists may be motivated to seek compensation for people who care for their own kin on the ground that contracting with outsiders to do such work corrupts family relationships. But to the extent that such concerns about commodification are justified, we should be equally concerned about the possibility that paying family members (such as spouses or relatives) to perform such labors will corrupt those same relationships. 54. Indeed, some feminists in this movement consider market-based strategies for valuing household labor reprehensible. See, e.g., Williams, Unbending Gender, 40–48 (associating the “full commodification strategy” with careerism, misogyny against homemakers, class bias, and the decline of feminism). 55. See ibid., 124–31. 56. I draw here on a term that has become popular in the literature. See


Labor’s Subjects

191

Reva B. Siegel, “Home as Work: The First Woman’s Rights Claims concerning Wives’ Household Labor,” Yale Law Journal 103 (1994): 1076 (defining “joint property” claims as “wives’ claims to marital assets to which husbands otherwise had title”); see also Williams, Unbending Gender, 124–27 (advocating a joint property strategy). For a sympathetic account of the historical origins of joint property strategies, see Siegel, “Home as Work,” 1112–88 (describing nineteenth-century joint property demands). 57. Economist Barbara Bergmann has coined the term full welfare strategy to refer to such proposals. Barbara Bergmann, Saving Our Children from Poverty: What the United States Can Learn from France (New York: Russell Sage Foundation, 1996), 123–24. Here I will simply use the term welfare to refer to both the relatively utopian, generous versions of state compensation for housework and dependent care proposed by some feminists, as well as the stingier version that has traditionally been available in the United States. 58. See, e.g., Mary Becker, “Maternal Feelings: Myth, Taboo, and Child Custody,” Review of Law and Women’s Studies 1 (1992): 157 and n. 99 (citing Fuchs and Becker for the proposition that women’s economic disadvantage is partly attributable to women’s greater commitment to children); Ertman, “Commercializing Marriage,” 19 n. 6, 41 n. 94 (citing economist Victor Fuchs for the proposition that many women participate in the workforce in marginalized ways in order to accommodate child care and other homemaking needs, and citing Gary Becker to suggest that married women invest in child care and homemaking while husbands invest in market work). See also Williams, Unbending Gender, 14 (positing that women’s lower workforce status is a result of women’s “choice to marginalize” at work because they cannot satisfy employers’ demanding work schedules and the demands of domesticity simultaneously). 59. Most scholars in this tradition do not even cite the relevant sociological literature. Others appear to misunderstand its implications. For example, Joan Williams has argued: [I]f one reads studies by labor economists and lawyers, on one hand, and by family law scholars, on the other, a striking pattern emerges. The labor literature often minimizes the impact of women’s family work on their market work, while the family-related literature documents it in detail. Both use accurate data; they just focus on different groups. Labor economists focus on women who perform as ideal workers, often in traditionally male jobs. These women’s workforce participation often is not affected by their “second shift” of family work. The family literature focuses on homemakers and women who work part-time, whose workforce participation clearly has been affected by the division of labor at home. Williams, Unbending Gender, 15. However, the research that Williams refers to as the “labor” literature is not limited to a study of women who work in maledominated fields. The very point of the research is to determine the validity of


192

Lives in the Law

the human capital prediction that women with heavier family responsibilities are more likely than those with lesser ones to occupy (or move into) femaledominated fields. This could not be accomplished by studying only women who work in male-dominated fields. See Schultz, “Telling Stories,” 1819–20 nn. 256–62. Nor is the research limited to “women who perform as ideal workers.” In addition to capturing women’s level of family responsibilities through such family-related characteristics as marital status and presence and number of children, some of the studies include measures of the number of weeks or hours worked or continuity of labor force participation. See Jacobs, Revolving Doors, 149–50 (testing for weeks employed and hours worked per week); Beller, “Occupational Segregation by Sex,” 385 (finding that, even if women had been identical to men in terms of a number of personal characteristics—such as marital status, number of children, number of weeks worked, part-time versus fulltime status, and whether the reason for working part-time was “home specialization”—the probability that a woman would have worked in a male-dominated occupation would have increased by only 1.1 percent); Corcoran et al., “Work Experience,” 187 (testing for extensive time out and frequent interruptions). Thus, the studies include women working part-time or interrupting their employment. See Williams, Unbending Gender, 15. 60. See, e.g., Barbara Bergmann, The Economic Emergence of Women (New York: Basic Books, 1986), 88–114 (arguing against the human capital theories of “conservative economists” and articulating alternative explanations for sexsegregation of employment); Jacobs, Revolving Doors, 169–73 (explaining that his findings cast doubt on human capital explanations for sex segregation); Bielby and Bielby, “She Works Hard,” 1055–56 (noting that their findings discredit human capital theory); England, “Failure of Human Capital Theory,” 365–67 (analyzing national longitudinal survey data that refute human capital theory predictions). 61. See Joan Williams, “Do Women Need Special Treatment? Do Feminists Need Equality?” Journal of Contemporary Legal Issues 9 (1998): 279–320. 62. See, e.g., Cockburn, Machinery of Dominance, 167–97, 229–35 (arguing that male supremacy rests on men’s appropriation of new technology and sexsegregating of technological fields through informal workplace culture); Kanter, Men and Women, 151–59, 260–64 (arguing that jobs gender people and showing that work organizations reward women for attitudes and orientations that block their progress, while at the same time justifying women’s low status as the result of preexisting gender traits); Schultz, “Telling Stories,” 1824–39 (reviewing sociological evidence showing that structural features of labor markets and work organizations disempower women, and demonstrating that Title VII law solidifies these tendencies); see also Nancy Fraser, Justice Interruptus: Critical Reflections on the “Postsocialist” Condition (New York: Routledge, 1997), 27–33 (arguing that the best way to address gender problems is to combine a broad social democratic politics of redistribution with a feminist politics of dismantling existing gender differences). 63. See, e.g., Ertman, “Commercializing Marriage,” 82 (noting that


Labor’s Subjects

193

despite differences in several legal feminists’ approaches “to valuing women’s work in the home,” they all “assume that women [or those who are gendered female] likely will continue to do most of the homemaking and tailor their proposals accordingly”); Silbaugh, “Marriage Contracts,” 98 (citing studies showing that even employed women do more housework than their male partners and arguing that it is unrealistic to believe feminists can redistribute housework more equally between women and men); see also Siegel, “Home as Work,” 1214 (“Today, as in the nineteenth century, it is women who perform the work of the family, women who seek to escape the work, and women who eke out a living performing the work—for other women.”). 64. See, e.g., Becker, “Maternal Feelings,” 142–53 (arguing that mothers have stronger emotional attachments to children than fathers). 65. See Amy L. Wax, “Bargaining in the Shadow of the Market: Is there a Future for Egalitarian Marriage?” Virginia Law Review 84 (1998): 546–49. 66. Although the evidence is mixed, some studies do find that when wives enter the labor force, their husbands modestly increase the amount of housework they do. Other studies suggest that employed women reduce the time they spend on housework considerably, a reduction that results in more equal division of labor. See Beth Anne Shelton and Daphne John, “The Division of Household Labor,” Annual Review of Sociology 22 (1996): 307–8; Erik Olin Wright et al., “The Non-effects of Class on the Gender Division of Labor in the Home: A Comparative Study of Sweden and the United States,” Gender and Society 6 (1992): 260 and n. 11. 67. See, e.g., Francine M. Deutsch et al., “Husbands at Home: Predictors of Paternal Participation in Child Care and Housework,” Journal of Personality 65 (1993): 1158; Shelton and John, “Division of Household Labor,” 304–9; Myra H. Strober and Agnes Miling Kaneko Chan, “Husbands, Wives, and Housework: Graduates of Stanford and Tokyo Universities,” Feminist Economics 4 (1998): 121–23. 68. See Wright et al., “Non-effects of Class,” 268–75. 69. See Rhona Mahoney, Kidding Ourselves: Breadwinning, Babies, and Bargaining Power (New York: Basic Books, 1995), 139–48, 218–21. 70. Scott Coltrane, Family Man: Fatherhood, Housework, and Gender Equity (New York: Oxford University Press, 1996), 52 (internal citations omitted). 71. See ibid., 199–207. 72. See Barnett and Rivers, She Works, He Works, 178. 73. See Strober and Chan, “Husbands, Wives, and Housework,” 108. 74. Among couples with children, for example, 94 percent of the women who shared tasks equally with their husbands were satisfied with their arrangements, compared to only 47 percent of the women who did more than half of the household work. Even among mothers who were full-time homemakers—who might be expected to be content with more traditional arrangements—40 percent said they would prefer to change their arrangements. See ibid. 75. See Chloe Bird, “Gender, Household Labor, and Psychological Dis-


194

Lives in the Law

tress: The Impact of the Amount and Division of Housework,” Journal of Health and Social Behavior 40 (1999): 42. 76. See Roberta Spalter-Roth and Heidi Hartmann, “Gauging the Consequences for Gender Relations, Pay Equity, and the Public Purse,” in Contingent Workers: From Entitlement to Privilege, ed. Kathleen Barker and Kathleen Christensen (Ithaca, N.Y.: ILR Press, 1998), 71 (citing evidence that male-breadwinner families declined from 44 percent of all families with children in 1975 to only 20 percent in 1994). 77. See Arne L. Kalleberg et al., Nonstandard Work, Substandard Jobs: Flexible Work Arrangements in the U.S. (Washington, D.C.: Economic Policy Institute, 1997), 4. 78. See ibid., 4–5. Single mothers are even more likely than other women to be employed year-round, full-time. See ibid., 49–50 (showing that 72.1 percent of all single mothers work in regular full-time jobs, compared to 65.7 percent of all women). 79. See Steve Friess, “Gay Couples Aim to Be Counted: ‘Unmarried Partners’ to Be Used in Census,” Fort Lauderdale Sun-Sentinel, March 6, 2000, 1B. 80. See Heidi I. Hartmann, “Changes in Women’s Economic and Family Roles in Post–World War II United States,” in Women, Households, and the Economy, ed. Lourdes Benería and Catharine R. Stimpson (New Brunswick, N.J: Rutgers University Press, 1987), 37–39; David Popenoe and Barbara Dafoe Whitehead, “The State of Our Unions: The Social Health of Marriage in America,” June 1999, . 81. See Bird, “Gender, Household Labor,” 41; Shelton and John, “Division of Household Labor,” 315–16. 82. See Barnett and Rivers, She Works, He Works, 34–38; Grace K. Baruch, “The Psychological Well-Being of Women in the Middle Years,” in Women in Midlife, ed. Grace K. Baruch and Jeanne Brooks-Gunn (New York: Plenum Press, 1984), 161, 170–73; Nancy E. Betz and Louise F. Fitzgerald, The Career Psychology of Women (Orlando: Academic Press, 1987), 192–93. 83. See Barnett and Rivers, She Works, He Works, 29. 84. See Ingrid Waldron and Jerry A. Jacobs, “Effects of Labor Force Participation on Women’s Health: New Evidence from a Longitudinal Study,” Journal of Occupational Medicine 30 (1988): 981–82. 85. See Elaine Wethington and Ronald C. Kessler, “Employment, Parental Responsibility, and Psychological Distress,” Journal of Family Issues 10 (1989): 532 (finding in a three-year study of 745 married women that those who engaged in paid work had better emotional health than women who were not employed). 86. See Barnett and Rivers, She Works, He Works, 29. 87. Myra Marx Ferree, “Class, Housework, and Happiness: Women’s Work and Life Satisfaction,” Sex Roles 11 (1984): 1068. 88. Ibid., 1073. 89. See Joan Williams, “Implementing Antiessentialism: How Gender Wars Turn into Race and Class Conflict,” Harvard Blackletter Journal 15 (1999): 49–50, 55–57.


Labor’s Subjects

195

90. See Ferree, “Class, Housework, and Happiness,” 1068. 91. See Barnett and Rivers, She Works, He Works, 34–38. 92. See ibid., 111–12; Baruch, “Psychological Well-Being,” 170–78 (concluding that women with the highest level of well-being were employed, married, and had children); Faye J. Crosby, Juggling: The Unexpected Advantages of Balancing Career and Home for Women and Their Families (New York: Free Press, 1991), 86–87. 93. See Crosby, Juggling, 59–110 (explaining the benefits of combining paid work and parenting). See also Stephen R. Marks, “Multiple Roles and Role Strain: Some Notes on Human Energy, Time, and Commitment,” American Sociological Review 42 (1977): 921–36 (proposing a theory that takes into account the energy-producing as well as energy-consuming aspects of multiple roles). 94. See Mahoney, Kidding Ourselves, 44–45. 95. See, e.g., Williams, Unbending Gender, 162–63 (arguing that a collectivization strategy privileges white women over women of color and workingclass women, and apparently assuming that such a strategy must involve moneyed women hiring private nannies and housekeepers). 96. See Fineman, “Nature of Dependencies,” 300–304. 97. See Marieka M. Klawitter and Victor Flatt, “The Effects of State and Local Antidiscrimination Policies on Earnings for Gays and Lesbians,” Journal of Policy Analysis and Management 17 (1998): 662 (“Gender still has a large impact on earnings, and its effects are doubly felt within same-sex couples”); ibid., 670 (showing that female same-sex couples earn less than married couples); see also M. V. Lee Badgett, “The Wage Effects of Sexual Orientation Discrimination,” Industrial and Labor Relations Review 48 (1995): 737 (showing that lesbian and bisexual women earn 12 percent to 30 percent less than heterosexual women, although this number declines “greatly in size and significance when occupation and a selection bias correction are taken into account”). 98. See Katharine Silbaugh, “Commodification and Women’s Household Labor,” Yale Journal of Law and Feminism 9 (1997): 120 (arguing that “there is a concrete risk that the deflated wages of the paid domestic worker will be used to estimate the value of unpaid work” by homemakers); cf. Siegel, “Home as Work,” 1127–35 (documenting that nineteenth-century joint property proponents used the fact that the labor market discriminatorily depressed working women’s wages as an argument for why homemakers should not be paid a market wage). 99. See Williams, Unbending Gender, 162–63; cf. Siegel, “Home as Work,” 1190 (characterizing nineteenth-century feminists’ call to enable two-career marriage by establishing cooperative forms of housework as a move that introduced class distinctions among women). 100. Although there are many obvious differences in their situations, women from all socioeconomic backgrounds experience many of the same forms of sex discrimination on the job. For example, women from across the occupational and educational spectrum experience gender-based limits on hiring and promotional opportunity and discriminatory wages and working conditions (including harassment). See generally Jacobs, Revolving Doors, 41 (show-


196

Lives in the Law

ing that sex segregation affects women at all educational levels even though it has declined the most in recent years among well-educated women); Schultz, “Reconceptualizing Sexual Harassment,” 1722–29 (documenting sex discrimination and harassment against women who work in both low- and high-status occupations). Furthermore, there is evidence that working for a living creates shared interests among women, who may unite across class boundaries to hold feminist views that are significantly less likely to be held by homemakers. See Jane J. Mansbridge, Why We Lost the ERA (Chicago: University of Chicago Press, 1986), 216, table a(9) (reporting that in the 1974–82 period, working women were more likely than full-time homemakers to support the ERA, were more approving of interracial marriage, abortion, sex education, birth control, and homosexuality, were more likely to approve of married women earning money in business or industry even if their husbands were capable of supporting them, and were less likely to believe that “[w]omen should take care of running their homes and leave running the country up to men”); see also Kristin Luker, Abortion and the Politics of Motherhood (Berkeley and Los Angeles: University of California Press, 1984), 110–21 (showing that working women were more likely than full-time homemakers to support abortion rights); Myra Marx Ferree, “Working Class Feminism: A Consideration of the Consequences of Employment,” Society Quarterly 21 (1980): 175 (showing that working-class, married women who work for a living are more likely than full-time homemakers to favor egalitarian gender roles for men and women). 101. Early in the twentieth century, for example, professional women united with their working-class sisters to support labor struggles and other rights designed to promote women’s capacity for economic improvement and independence from men. See Nancy F. Cott, The Grounding of Modern Feminism (New Haven: Yale University Press, 1987), 23–36 (describing alliances between labor movement, working-class women and more elite women activists in the suffrage movement, who saw “wage-earners (especially trade unionists) [as] exemplars of independent womanhood”). These same groups also worked together across class boundaries to support women’s sexual freedom and freedom of expression. See Christine Stansell, American Moderns: Bohemian New York and the Creation of a New Century (New York: Metropolitan Books/Henry Holt, 2000), 73–144, 225–46 (describing similar cross-class alliances among feminists and bohemians in Greenwich Village in the 1910s, who actively supported labor struggles, free speech campaigns, birth control, and other campaigns to promote women’s sexual freedom and the freedom to pursue paid work). 102. See Jonathan A. Glickstein, Concepts of Free Labor in Antebellum America (New Haven: Yale University Press, 1991), 182–84 (noting that “the cult of domesticity” obscured the deplorable labor conditions faced by many women and strengthened public inertia and apathy toward such conditions by rationalizing labor exploitation of immigrant and free black women who confirmed their lack of respectability by leaving their natural domestic sphere); Alice Kessler-Harris, “Women, Work and the Social Order,” in Liberating Women’s


Labor’s Subjects

197

History, ed. Berenice A. Carroll (Urbana: University of Illinois Press, 1976), 333–37 (emphasizing that the ideology of separate spheres legitimated the relegation of working-class women to low-paying menial jobs). 103. By contrast, Bergmann notes that in the United States, under AFDC, a low-skilled single parent had no incentive to leave AFDC for a paid job. After paying for child care, a mother would earn no more—and might even earn less—than she did on welfare. In addition, if she went to work, she would lose her health insurance, and her job would not be likely to provide it. Thus, she would live in fear of illness that would place her family in financial ruin (Bergmann, Saving Our Children, 12–13, 91–94). Low wages and lack of health insurance continue to plague the working poor. To enable people to participate fully in the workforce, wages must be improved, and health insurance and child care assistance must be provided. 104. See ibid., 12. 105. See ibid., 124–30. 106. See Barbara Bergmann and Heidi Hartmann, “A Welfare Reform Based on Help for Working Parents,” Feminist Economics 1 (1995): 85–89. 107. See Bergmann, Saving Our Children, 124–30. 108. Fraser criticizes what she calls a “Universal Breadwinner” model, which encourages women to work the same full-time hours as men, on the ground that it reinforces androcentric breadwinner norms and reduces time for leisure and civic activities for everyone (Justice Interruptus, 51–55). Bergmann does not advance a similar critique; her work might even be said to embody Fraser’s Universal Breadwinner approach. As I try to make clear in the text, however, I think Fraser and Bergmann are closer to each other than they are to many other feminists. Both understand the significance of paid work to women’s lives; and both take seriously the need to dismantle gender-based patterns of paid work in order to achieve a more egalitarian society. 109. See Justice Interruptus, 55. 110. Ibid., 55–56. 111. Ibid., 57. 112. Ibid., 55. 113. As Fraser puts it: By supporting women’s informal carework, it reinforces the view of such work as women’s work and consolidates the gender division of domestic labor. By consolidating dual labor markets for breadwinners and caregivers, moreover, the model marginalizes women within the employment sector. By reinforcing the association of caregiving with femininity, finally, it may also impede women’s participation in other spheres of life, such as politics and civil society. Ibid., 58. 114. Ibid., 62. 115. Ibid., 61.


198

Lives in the Law

116. Gordon, Pitied but Not Entitled, 53–59; see also Sonya Michel, “The Limits of Maternalism: Policies toward American Wage-Earning Mothers during the Progressive Era,” in Mothers of a New World: Maternalist Politics and the Origins of Welfare States, ed. Seth Koven and Sonya Michel (New York: Routledge, 1993), 277–78 (discussing maternalist political activism). 117. Gordon, Pitied but Not Entitled, 62. 118. See ibid., 135–37, 142, 236–38. 119. See Kalleberg et al., Nonstandard Work, Substandard Jobs, 1–3. 120. Cynthia Fuchs Epstein et al., The Part-Time Paradox: Time Norms, Professional Lives, Family, and Gender (New York: Routledge, 1999), 83, 86–87. 121. As Patricia Zavella has shown, for example, Chicana women are often depicted as traditional and family-oriented, a characterization that draws on an essentialized notion of Mexican-American culture and women’s position within it in order to legitimate their menial position in the labor force. See Women’s Work and Chicano Families: Cannery Workers of the Santa Clara Valley (Ithaca, N.Y.: Cornell University Press, 1987), 15. 122. When it suits corporate interests, poor women are objectified as things, fit only for the most menial types of labor. Mexican women in places like the Maquiladora plants are reified as “nimble fingers,” fit (indeed, made) for repetitive, mind-numbing, body-destroying work, as made clear in recent work by Alicia Schmidt Camacho, “On the Borders of Solidarity: Race and Gender Contradictions in the ‘New Voice’ platform of the AFL-CIO,” Social Justice 26 (1999): 72, 89. Essentializing poor women of color as extensions of the machine or expressions of the machine or the mop and pail is another way of suppressing their agency as workers so as to deny room for empowerment. 123. See Eileen Appelbaum and Rosemary Batt, The New American Workplace: Transforming Work Systems in the United States (Ithaca, N.Y.: ILR Press, 1994) (surveying innovations in management methods and forms of work organization through 1994); Bennett Harrison, Lean and Mean: The Changing Landscape of Corporate Power in the Age of Flexibility (New York: Guilford Press, 1994) (documenting new organization of firms, suppliers, and customers, and showing that the new economy is not dominated by small firms); Rosabeth Moss Kanter, When Giants Learn to Dance: Mastering the Challenge of Strategy, Management, and Careers in the 1990s (New York: Simon and Schuster, 1989) (discussing strategies to face these trends); Sennett, The Corrosion of Character (arguing that the decline of stable employment threatens people’s ability to form coherent narratives for their lives). 124. Kanter, Men and Women, 290. 125. See ibid. 126. Sennett, The Corrosion of Character, 23. 127. Kanter, Men and Women, 293. 128. See Harry Braverman, Labor and Monopoly Capital: The Degradation of Work in the Twentieth Century (New York: Monthly Review Press, 1974); Katherine Stone, “The Origins of Job Structures in the Steel Industry,” Review of Radical Political Economy 6 (1974): 115–23.


Labor’s Subjects

199

129. Sennett, The Corrosion of Character, 22; Harrison, Lean and Mean, 8. 130. Harrison, Lean and Mean, 9. 131. See Sennett, The Corrosion of Character, 98–99. 132. Laurie Graham, On the Line at Subaru-Isuzu: The Japanese Model and the American Worker (Ithaca, N.Y.: ILR Press, 1995), 58–61. 133. See ibid., 59–60. 134. See Ruth Milkman, Farewell to the Factory: Auto Workers in the Late Twentieth Century (Berkeley and Los Angeles: University of California Press, 1997), 170–77. 135. Sennett, The Corrosion of Character, 113. 136. See Graham, On the Line, 98–101. 137. In 1992, about 25 percent of all firms had involved at least half their core employees in two or more of these practices; by 1997 this figure had grown to 38 percent (with the use of all practices increasing, except teams, which remained stable). See Paul Osterman, “Work Reorganization in an Era of Restructuring: Trends in Diffusion and Impacts on Employee Welfare,” typescript, April 1999, 8. 138. See Edward E. Lawler III et al., Employee Involvement and Total Quality Management: Practices and Results in Fortune 1000 Companies (San Francisco: Jossey-Bass, 1992), 9–11. 139. Osterman, Work Reorganization, 11–13. 140. According to a study by the Economic Policy Institute, “The share of workers in ‘long-term jobs’ (those lasting at least 10 years) fell sharply between 1979 and 1996,” for example, from 41 percent to 35.4 percent (with most of the decline attributable to men; women’s situation remained fairly stable). Lawrence Mishel et al., The State of Working America, 1998–99 (Ithaca, N.Y.: ILR Press, 1999), 7. 141. Ibid., 235. 142. Ibid., 236. 143. See ibid., 236, 238–39, table 4.12. 144. Sennett, The Corrosion of Character, 93. 145. In 1997, almost 30 percent of all workers were employed in situations that were not regular full-time jobs (Mishel et al., Working America, 1998–99, 8). 146. See Kalleberg et al., Nonstandard Work, Substandard Jobs, 6; Mishel et al., Working America, 1998–99, 246–47. 147. See Mishel et al., Working America, 1998–99, 242–47. In the labor force as a whole, for example, 35 percent of all women workers and 21 percent of men receive only poverty-level wages (currently $7.63 an hour). Among nonstandard workers, 52 percent of all women and 33 percent of all men earn such wages—evidence that the working poor are concentrated disproportionately among nonstandard workers. See Kalleberg et al., Nonstandard Work, Substandard Jobs, 16. 148. See Kalleberg et al., Nonstandard Work, Substandard Jobs, 18–19, table 9. 149. For example, only 28 percent of the white men who work in non-


200

Lives in the Law

standard jobs work in those types where people earn less, on average, than similar full-time workers. However, fully 81 percent of all women do, including nearly identical shares of whites, blacks, and Latinos. Men of color do a bit better than white women, but not nearly as well as white men: 53 percent of black and 43 percent of Latino nonstandard male workers hold the lowest-paying types of nonstandard jobs (ibid., 44). 150. See Harrison, Lean and Mean, 189–91. 151. See U.S. Bureau of the Census, “Workers with Low Earnings: 1964 to 1990,” Current Population Reports, Consumer Income, series P-60, no. 178, 5, 8 (1992). 152. See Lawrence Mishel and Jared Bernstein, The State of Working America, 1992 (Armonk, N.Y: Sharpe, 1993), 137. According to an exhaustive review: Nineteen-hundred-seventy-three marked the end of rapid real earnings growth and the beginning of slower growth bordering on stagnation. Nineteen-hundred-seventy-nine marked the beginning of a sharp acceleration in the growth of earnings inequality, particularly among men. . . . [T]he male annual earnings distribution has hollowed out, leaving larger percentages of workers at the top and bottom of the distribution, and a smaller percentage in the middle. Harrison, Lean and Mean, 193–94 (quoting Frank Levy and Richard Murnane, “U.S. Earnings Levels and Earnings Inequality: A Review of Recent Trends and Proposed Explanations,” Journal of Economic Literature 30 [1992]: 1371). 153. See Rebecca M. Blank, It Takes a Nation: A New Agenda for Fighting Poverty (Princeton: Princeton University Press, 1997), 61. 154. See Mishel et al., Working America, 1998–99, 149. 155. According to the Economic Policy Institute study: Many [relatively] high-wage workers, particularly men, failed to see real wage improvements in the 1989–97 period. Male white-collar wages, including those for managers and technical workers, have been stagnant or have declined, and the wages of male college graduates have stagnated and remain below their level of the mid-1980s or early 1970s. Ibid., 119–20. 156. Ibid., 1. 157. Ibid., 2. 158. See Pateman, “The Patriarchal Welfare State,” 258–59. 159. Professor Cynthia L. Estlund has long emphasized this theme. See “Working Together: The Workplace, Civil Society, and the Law,” Georgetown Law Journal 89 (2000): 1, and “Free Speech and Due Process in the Workplace,” Indiana Law Journal 71 (1995): 112. See also Karst, “Coming Crisis of Work,” 550–51 (arguing that the workplace has been a major institutional site of social integration of various racial and ethnic groups).


Labor’s Subjects

201

160. See Bruce Ackerman and Anne Alstott, The Stakeholder Society (New Haven: Yale University Press, 1999), 11. 161. Their sharpest criticism is reserved for those who advocate wage subsidies, which they see as interfering with the freedom not to work (ibid., 207). See also Anne L. Alstott, “Work vs. Freedom: A Liberal Challenge to Employment Subsidies,” Yale Law Journal 108 (1999): 971 (“The case for employment subsidies rests on mistaken or morally dubious claims about the intrinsic or instrumental value of paid work”). In my view, the claim that work interferes with freedom is mistaken. There is no irreconcilable contradiction between Ackerman and Alstott’s proposal to democratize access to capital and measures to democratize access to paid work; measures to universalize and improve the status of work could be supplemented with the central features of the Ackerman-Alstott stake. In fact, the stake would work very well as a supplement to the work-centered measures I propose here. People could use their stakes to invest in the education and training that would prepare them for the work they really want to do, or they could use it to start their own businesses as a path to their life’s work. Furthermore, as Lucie White pointed out to me, the stake (like any other unconditional cash grant) might function to increase workers’ ability to leave undesirable jobs and to create their own alternative institutions—both of which may be needed to give workers the bargaining power to leverage the sorts of changes in working conditions I advocate. 162. See Pateman, “The Patriarchal Welfare State,” 258–59. 163. See Wilson, When Work Disappears, 228–35. 164. See United States Kerner Commission, Report of the National Advisory Commission on Civil Disorders, 1968, 219–35, 251–65. 165. As most readers are undoubtedly aware, Betty Friedan’s classic book The Feminine Mystique (New York: Norton, 1963), which gave popular voice to many of the dissatisfactions that culminated in second-wave feminism, emphasized women’s need to work at productive endeavors outside the home (344–57). See also Ruth Rosen, The World Split Open: How the Modern Women’s Movement Changed America (New York: Viking, 2000), 72 (arguing that Title VII’s guarantee of equality at work galvanized the modern women’s movement in the same way that Brown v. Board of Education galvanized the civil rights movement). For additional accounts of second-wave feminism, see Jane Sherron De Hart, “The New Feminism and the Dynamics of Social Change,” in Women’s America: Refocusing the Past, ed. Linda K. Kerber and Jane Sherron De Hart, 3d ed. (New York: Oxford University Press, 1991), 493–521; Sara Evans, Personal Politics: The Roots of Women’s Liberation in the Civil Rights Movement and the New Left (New York: Vintage, 1980); Mansbridge, Why We Lost the ERA. 166. 29 U.S.C. secs. 621–34 (1994); see also EEOC v. Wyoming, 460 U.S. 226, 228–34 (1983) (providing a history of the development of the ADEA). 167. See Stephen Leinen, Gay Cops (New Brunswick, N.J.: Rutgers University Press, 1993), 200–201. 168. See Thomas H. Barnard and Timothy J. Downing, “Emerging Law on


202

Lives in the Law

Sexual Orientation and Employment,” University of Memphis Law Review 29 (1999): 557. 169. See Susan Sturm and Lani Guinier, “The Future of Affirmative Action: Reclaiming the Innovative Ideal,” California Law Review 84 (1996): 956–57. 170. See generally Schultz, “Reconceptualizing Sexual Harassment,” 1774–89 (showing how male-on-male harassment fits into a larger understanding of workplace harassment as a mechanism to protect the masculine image of the work projected onto it by the dominant group). 171. 42 U.S.C. secs. 12111–17 (1994). 172. Paul Steven Miller, “Disability Civil Rights and a New Paradigm for the Twenty-First Century: The Expansion of Civil Rights beyond Race, Gender, and Age,” University of Pennsylvania Journal of Labor and Employment Law 1 (1998): 514. 173. Ibid., 520 n. 44 (internal citations omitted). 174. 42 U.S.C. secs. 12111–17. But see Sutton v. United Airlines Inc., 527 U.S. 471, 488–89 (1999) (limiting the definition of disability). For an interpretation of Sutton and other recent Supreme Court decisions that attempts to protect a broad vision of disability rights while shielding employers from frivolous lawsuits, see Lauren J. McGarity, Note, “Disabling Corrections and Correctable Disabilities: Why Side Effects Might Be the Saving Grace of Sutton,” Yale Law Journal 109 (2000): 1161. 175. See Iris Marion Young, “Disability and the Definition of Work,” in Americans with Disabilities: Exploring Implications of the Law for Individuals and Institutions, ed. Leslie Francis and Anita Silvers (New York: Routledge, 2000), 169–73 (arguing that many workers who do not identify as disabled would benefit if they joined with disabled people to demand more humane workplaces). 176. As most readers are undoubtedly aware, much of the traditional AFDC system has been dismantled and replaced with a system that encourages, or even requires, single parents to engage in paid work in order to collect benefits for their children. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104–193, 110 Stat. 2105 (1996) (codified as amended in scattered sections of 42 U.S.C.), repealed the AFDC program and replaced it with a block grant program called Temporary Assistance to Needy Families that gives wide discretion to the individual states to design and administer their own welfare programs. For a description of the new programs, see Blank, It Takes a Nation, 83–132; Mark Greenberg, “Welfare Restructuring and Working-Poor Family Policy: The New Context,” in Hard Labor: Women and Work in the Post-Welfare Era, ed. Joel F. Handler and Lucie White (Armonk, N.Y.: Sharpe, 1999), 24–47; see also Jonathan Zasloff, “Children, Families, and Bureaucrats: A Prehistory of Welfare Reform,” Journal of Law and Policy 14 (1998): 295–306 (analyzing the politics of some of the failures of recent welfare reforms). The literature distinguishes between “workfare” programs, in which those who draw welfare must work at jobs created for that purpose if they cannot find other employment, and “welfare-to-work”


Labor’s Subjects

203

programs, in which the state provides job search assistance and other support services in an effort to help those who have collected welfare transition into steady jobs. See Judith M. Gueron and Edward Pauly, From Welfare to Work (New York: Russell Sage Foundation, 1991), 7–21, 97 (outlining the main conclusions and policy implications of completed welfare-to-work studies from the 1980s). Here I will refer to welfare-to-work programs, which are less punitive in nature. 177. See Katherine S. Newman, No Shame in My Game: The Working Poor in the Inner City (New York: Knopf and Russell Sage Foundation, 1999), 98; Lillian B. Rubin, Families on the Fault Line: America’s Working Class Speaks about the Family, the Economy, Race, and Ethnicity (New York: HarperCollins, 1994), 197–99. 178. See Newman, No Shame, 98–100. 179. See Kathryn Edin and Laura Lein, Making Ends Meet: How Single Mothers Survive Welfare and Low-Wage Work (New York: Russell Sage Foundation, 1997), 6–7; Joel F. Handler and Yeheskel Hasenfeld, We the Poor People: Work, Poverty, and Welfare (New Haven: Yale University Press, 1997), 47–48. 180. See Spalter-Roth and Hartmann, “Gauging the Consequences,” 92–93 (showing that in 1990, 14 percent of women who worked in contingent arrangements, compared to 3 percent of all women in permanent full-time work and 6 percent of women in permanent part-time work, relied on income from means-tested welfare benefits to supplement their earnings); ibid., 85 (documenting a median hourly wage of $5.15 for contingent workers, compared to $10.85 for full-time, year-round workers, and $8.74 for all workers in the sample); see also Mishel et al., Working America, 1998–99, 242–47 (documenting similar results for nonstandard workers). 181. See Forbath, “Equal Citizenship,” 11; see also Handler and Hasenfeld, We the Poor People, 11–12. 182. See note 50 and accompanying text. 183. Martha Fineman has already planted the idea that women and mothers should have a “right to work” (“Nature of Dependencies,” 308–9); see also William E. Forbath, “Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution,” Stanford Law Review 46 (1994): 1804–5 (arguing for a right to work); Karst, “Coming Crisis of Work,” 557–58 (same). 184. See Jason DeParle, “Getting Opal Caples to Work,” New York Times Magazine, August 24, 1997, 33–36. 185. Ibid., 35–36. 186. Ibid., 35. 187. Ibid., 33, 35. 188. See Jason DeParle, “Symbol of Welfare Reform, Still Struggling,” New York Times, April 20, 1999), A1. 189. Under AFDC, a mother with two children received $9,456 a year in cash and food stamps. Under the plan, in 1999, a community-service job paid $11,168 a year (DeParle, “Opal Caples”). Once food stamps and tax credits are added in, and copayments for child care and health care are taken out, a


204

Lives in the Law

minimum-wage job netted $16,524, a wage above the poverty line of $13,330 a year (ibid.). 190. See Edmund S. Phelps, Rewarding Work: How to Restore Participation and Self-Support to Free Enterprise (Cambridge: Harvard University Press, 1997), 14–15. 191. I am grateful to Stanley Aronowitz for this point. Stanley Aronowitz, remarks at Workplace Theory and Policy workshop at Yale Law School, March 1, 2000. Traditionally, mothers have been one of the main groups upon whose exclusion strategies for full employment have been based. Barbara Bergmann has powerfully described how sexism allows us to feel that we are helping welfare recipients by justifying their exclusion from the labor market when we protest job-based strategies by saying, “There are no jobs out there for these people” (Saving Our Children, 133). As Bergmann points out, nobody says, “We can’t allow the current crop of high school seniors to graduate because there are no jobs out there for them” (133). 192. See DeParle, “Opal Caples,” 33; DeParle, “Symbol of Welfare Reform.” 193. Newman, No Shame, 58. 194. 42 U.S.C. secs. 12111–17. 195. Family and Medical Leave Act of 1993, Pub. L. No. 103–3, 107 Stat. 6 (codified at 5 U.S.C. secs. 6381–87 and 29 U.S.C. secs. 2601–54 (1994)). 196. See, e.g., Edward J. McCaffery, “Slouching towards Equality: Gender Discrimination, Market Efficiency, and Social Change,” Yale Law Journal 103 (1993): 602, 626, 653, 671 (arguing for the repeal of statutory equal pay provisions and the adoption of tax reforms designed to make more flexible, part-time job opportunities available to women). McCaffery blames Title VII for achieving progress that has made women unhappy: Women do not necessarily need more money. They do not necessarily need more education. . . . The terms of traditional regulatory intervention are themselves influenced by a patriarchic social order, so that the antidiscrimination laws may even be consciously trying to squeeze women into a male pattern of work and family life—Title VII may actually be a cause of the paradox of better paid but less happy women. Ibid., 671. 197. See Fraser, Justice Interruptus, 57–62 (arguing against a model that creates flexible jobs for women on the ground that it promotes gender inequality); Jerry A. Jacobs and Kathleen Gerson, “Toward a Family-Friendly, GenderEquitable Work Week,” University of Pennsylvania Journal of Labor and Employment Law 1 (1998): 465–66 (pointing out problems with reforms aimed at achieving flexibility for women, such as unpaid leave and nonstandard jobs). 198. See Kessler-Harris, A Woman’s Wage, 7–12; Joan W. Scott, Gender and the Politics of History (New York: Columbia University Press, 1988), 71–79. 199. See Fraser, Justice Interruptus, 28–31 (discussing problems with a cultural feminist politics of seeking recognition for women’s difference).


Labor’s Subjects

205

200. See Scott, Gender and Politics, 197 (arguing that feminists should problematize the category of “women’s experience” rather than treating it as a fixed phenomenon). 201. Here, I mean to invoke a feminist tradition that is not celebrated very often in the contemporary feminist legal literature—that of feminist radicals from the early twentieth century. See generally Cott, Grounding of Modern Feminism, 23–50 (describing the origins of modern feminism in women’s movements that emerged in the 1910s and emphasized the link between women’s freedom to pursue equal work and sexual freedom and intimacy). For a fascinating history of feminist radicals and other fellow travelers who congregated in Greenwich Village in the early twentieth century, see Stansell, American Moderns. As Stansell makes clear, these feminists linked economic independence and sexual liberty with freedom of expression. They pursued careers (often in the male-dominated arts), staged and supported labor struggles, promoted and practiced free speech (particularly sexual speech), and sought love and sex outside the confines of marriage (ibid., 120–44, 225–72). Then, as now, there were barriers to realizing such a vision—especially the absence of cooperative, publically supported child care. Yet, in my view, theirs is still an inspiring vision, rather than one that deserves feminist condemnation. But see Hirshman and Larson, Hard Bargains, 223–303 (condemning those who advocate such a vision as sexual libertines). 202. See, e.g., Barry Bluestone and Bennett Harrison, Growing Prosperity: The Battle for Growth with Equity in the Twenty-first Century (Boston: Houghton Mifflin, 2000), 205–63 (proposing policies designed to promote economic growth and foster greater income equality at the same time). 203. See Blank, It Takes a Nation, 257; Harvey, Securing the Right, 11–20; Mickey Kaus, The End of Equality (New York: Basic Books, 1992), 136–48; Wilson, When Work Disappears, 232; Bergmann and Hartmann, “Welfare Reform,” 85. 204. In some communities, competition remains fierce even for low-wage jobs. For example, Katherine Newman reports that in central Harlem in the 1990s, there were fourteen applicants per person hired for fast-food jobs (Newman, No Shame, 62). Even in the “red hot” Boston economy of the 1990s studied by economists Barry Bluestone and Mary Huff Stevenson, some people (notably African-American and Latino men) had difficulty gaining access to more than sporadic employment. As a result, their earnings fell far below that of other groups. See Barry Bluestone and Mary Huff Stevenson, The Boston Renaissance: Race, Space, and Economic Change in an American Metropolis (New York: Russell Sage Foundation, 2000), 222–25. 205. See generally Ackerman and Alstott, The Stakeholder Society, 207–9 (arguing against wage subsidies in favor of a universal cash grant on the ground that the grant better promotes individual freedom); Forbath, “Equal Citizenship,” 12–15 (describing Sunstein and Michelman as favoring welfare entitlements over rights to work for this reason); see also Kronman, “Meaningful Work,” 4 (acknowledging that modern liberal theories of distributive justice do not focus on work in its normative dimension but instead “focus mainly on


206

Lives in the Law

the fairness of the distribution of resources that work produces—on who gets what share of the fruits of the work process—and tend, as a result, to view this process itself in an instrumental light”). 206. For a similar critique, see Forbath, “Equal Citizenship,” 89–91. 207. See generally Glickstein, Concepts of Free Labor, 220–22, 257–58. 208. See, e.g., Bryan Sierra, “House Passes GOP Welfare Plan,” United Press International, March 24, 1995, 1–2, available in Lexis, News Library, Wire Service Stories file (describing the 1995 passage of the Personal Responsibility Act, a series of punitive welfare measures that were part of the GOP’s Contract with America engineered by Newt Gingrich). 209. See Newman, No Shame, xv (“[Less-affluent Americans] work hard at jobs the rest of us would not want because they believe in the dignity of work”); see Terkel, Working, xii (quoting a waitress who remarked: “When someone says, ‘How come you’re just a waitress?’ I say ‘Don’t you think you deserve being served by me?’”). 210. See Kronman, “Meaningful Work,” 6–7, 31–34. Kronman traces these attitudes to the tradition of aristocratic professionalism, which treats professional work as inherently meaningful and distinguishes it sharply from instrumental forms of labor, which it regards as necessarily deadening or degrading (32). According to Kronman, the meaningful/instrumental distinction rests, in turn, on a higher valuation of mental as opposed to manual labor (33–34). Understood in this context, the class bias embedded in the notion that those of us who do what we love for a living are not really “working” becomes obvious. Carol Sanger suggested to me that some intellectuals’ resistance to honoring all forms of paid work—however “low-skilled” from our vantage point—may reflect a subconscious desire to maintain the privileged view of our own work. I am grateful to her for this insight. 211. Carol Stack, paper presented to Workplace Theory and Policy Seminar, Yale Law School, February 5, 1999 (showing that fast-food jobs demand skills that may not be obvious, but that come to be appreciated by most who do them). 212. See Glickstein, Concepts of Free Labor, 95–96. 213. See generally Forbath, “Equal Citizenship,” 19–20 (discussing early labor movements’ emphasis on the dignity of working people); James Gray Pope, “Labor’s Constitution of Freedom,” Yale Law Journal 106 (1997): 968 (describing Kansas United Mine Workers leader Alexander Howat’s conception of the “‘miner’s freedom,’ a work culture of autonomy, dignity and solidarity”). 214. Terkel, Working, xxxii. 215. Shklar, American Citizenship, 1–2; Karst, “Coming Crisis of Work,” 530–38. 216. See generally Zasloff, “Children, Families, and Bureaucrats,” 261–62 nn. 118–23 (documenting Americans’ support for social programs supporting, or even guaranteeing, a right to employment); see also Harvey, Securing the Right, 4–5 (showing similar support during the Roosevelt and Reagan eras). 217. See Phelps, Rewarding Work, 103–4; Harvey, Securing the Right, 16–24.


Labor’s Subjects

207

218. In Phelps’s plan, people earning $4.00 an hour would be brought up to $7.00; those earning $6.00 an hour would be brought up to $7.65, and so on, with subsidies ending at $12.06–a wage well above the $10 an hour that was the median wage for full-time workers at the time of Phelps’s proposal (Rewarding Work, 113). 219. For technical criticisms of wage subsidies paid to employers (such as the potential for employer fraud and churning), see Alstott, “Work vs. Freedom,” 1043–45. 220. The earned income tax credit (EITC) provides a tax refund to supplement the wages of families with children who earn less than a certain guaranteed amount. Recent evidence suggests, however, that although it is intended to encourage labor force participation, the EITC actually reduces such participation among low-income married women by, in effect, subsidizing them to stay home. For this reason, some researchers have suggested that the EITC should be based on individual as opposed to family earnings. See Nada Eissa and Hilary Williamson Hoynes, “The Earned Income Tax Credit and the Labor Supply of Married Couples,” University of Wisconsin–Madison Institute for Research on Poverty Discussion Paper No. 1194–99, 1999, 55–56. In my view, it is important to provide any wage subsidy to the individual worker, in order to give individual women and men the incentive and the ability to participate in the workforce on their own. 221. Like Bergmann and Hartmann, I lean toward the view that this benefit should be aimed at those who work full-time. See Bergmann and Hartmann, “Welfare Reform,” 86. Unlike Phelps (Rewarding Work, 96), however, my reason for doing so is to not to promote a greater breadwinning capacity by men so that they can resume head-of-household status, but rather to avoid yet another incentive for employers to create substandard part-time and temporary jobs to be filled disproportionately by women. As is stated below, I support measures to eliminate the distinction between full-time and part-time work and reduce the workweek for everyone. 222. See Jon Elster, “Is There (or Should There Be) a Right to Work?” in Democracy and the Welfare State, ed. Amy Gutmann (Princeton: Princeton University Press, 1988), 62–63 (discussing self-realization through work); see also Mark Barenberg, “Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production,” Columbia Law Review 94 (1994): 893–904 (discussing the noninstrumental benefits of work). 223. See Regina Austin, “Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress,” Stanford Law Review 41 (1988): 18–25 (describing the ways in which women and minority employees are mistreated or harassed at work); cf. Rosa Ehrenreich, “Dignity and Discrimination: Toward a Pluralistic Understanding of Workplace Harassment,” Georgetown Law Journal 88 (1999): 16–22 (discussing the dignitary harm resulting from workplace harassment). See generally Schultz, “Reconceptualizing Sexual Harassment,” 1687–89 (describing how gender-based harassment excludes and marginalizes women in debilitating ways). 224. See Barbara A. Gutek, Sex and the Workplace: The Impact of Sexual


208

Lives in the Law

Behavior and Harassment on Women, Men, and Organizations (San Francisco: Jossey-Bass, 1985), 143; Kanter, Men and Women, 242, 281–84; Schultz, “Reconceptualizing Sexual Harassment,” 1759. 225. For illuminating analyses of how antidiscrimination law treats the distribution of resources as a zero-sum game in a way that divides rather than unites Americans across the boundaries of race, gender, and other differences, see Clark Freshman, “Whatever Happened to Anti-Semitism? How Social Science Theories Identify Discrimination and Promote Coalitions between ‘Different’ Minorities,” Cornell Law Review 85 (2000): 333–59, 410–26; Noah Zatz, “Beyond the Zero-Sum Game: Toward Title VII Protection for Inter-group Solidarity,” Indiana Law Journal (forthcoming) (proposing a new cause of action that would permit whites, men, or others who occupy privileged positions in the workplace to claim that they have been discriminated against when they are required to participate or acquiesce in harassment or discrimination against others). 226. See Appelbaum and Batt, The New American Workplace, 58. 227. See Susan Sturm, “Race, Gender, and the Law in the Twenty-first Century Workplace: Some Preliminary Observations,” University of Pennsylvania Journal of Labor and Employment Law 1 (1998): 663–65. 228. See ibid., 647. 229. See generally Barbara Reskin, “The Proximate Causes of Employment Discrimination,” Contemporary Society 29 (2000): 325 (arguing that the impact of stereotypes and other cognitive distortions on evaluative judgments are reduced when decision makers know they will be held accountable for the criteria they use). 230. See Barenberg, “Democracy and Domination,” 893–96. 231. Ibid., 921. 232. See ibid. According to Barenberg: “[M]eaningful representation . . . frees workers to contribute continuous improvements and creative initiative with the assurance that the costs and benefits will be fairly distributed among stakeholders” (923). Yet it is not only management that front-line workers need to hold responsible—it is also their own representatives. Employee participation in high-discretion teams helps on this front, according to Barenberg, because “[e]mployee representatives are more likely to be held accountable by rank and file employees who have broad knowledge of the sociotechnical system and who feel challenged to participate actively in workplace problem-solving” (925–26). 233. See, e.g., Ackerman and Alstott, The Stakeholder Society, 207 (noting that most Americans see themselves as citizens and not workers). 234. An overwhelming 63 percent of all workers surveyed say they want more influence at the workplace, while only 35 percent want to keep things as they are. See Richard B. Freeman and Joel Rogers, What Workers Want (Ithaca: Cornell University Press, 1999), 41–42. 235. For example, 87 percent of employees say they would like their jobs better if they had more authority over decisions about production and opera-


Labor’s Subjects

209

tions. In addition, 79 percent of the employees believed that the quality of the firm’s product or services would improve if they made more decisions about production and operations (ibid., 42–43). Among all managers, 58 percent agreed (ibid., 42). 236. See ibid., 43. 237. Ibid., 152; see also Alan Hyde, “Employee Caucus: A Key Institution in the Emerging System of Employment Law,” Chicago-Kent Law Review 69 (1993): 187–90 (arguing for establishing joint employee-management committees to address workplace concerns if such committees are endorsed by the majority through secret ballots). 238. In the Freeman and Rogers survey, the one area in which workers most want more influence is input into how to do their jobs and organize their work: 76 percent of all workers said this was important to them (What Workers Want, 48–49). 239. Terkel, Working, 521, 523. 240. Ibid., 720. 241. See Kanter, Men and Women, 18–23 (discussing the history of management theory, which developed rationality and efficiency as the driving forces of organizational life); Cynthia Fuchs Epstein, “On the Non-work Aspects of Work,” Antioch Review 49 (1991): 47–50 (discussing efficiency-based models in similar terms). 242. For a description of Taylorism and its historical development, see Katherine V. W. Stone, “The New Psychological Contract,” UCLA Law Review 48 (2001): 519, 531. For a stunning biography of Taylor himself, see Robert Kanigel, The One Best Way: Frederick Winslow Taylor and the Enigma of Efficiency (New York: Viking, 1997). 243. See Becker, “Human Capital,” 25–26. 244. In my view, this is parallel to neoconservative reasoning that attributes African Americans’ and other disadvantaged racial minorities’ lower status within the labor market to what happens outside it. Here, as black feminists have pointed out, the myth is that poor single mothers of color raise their children to lack the work ethic and initiative needed to succeed in neutral, competitive labor markets. See, e.g., Patricia Hill Collins, “A Comparison of Two Works on Black Family Life,” Signs 14 (1989): 875–78 (criticizing Daniel Patrick Moynihan and Bill Moyers for attributing black poverty to pathological culture created by female-headed households, as opposed to racism and classism in larger structural forces); Kimberlè Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics,” in Feminist Legal Theory: Readings in Law and Gender, ed. Katharine T. Bartlett and Roseanne Kennedy (Boulder, Colo.: Westview, 1991), 57, 71–72 (criticizing Bill Moyers for blaming black poverty on female-headed households and arguing that William Julius Wilson’s analysis is incomplete because it “incorporates no analysis of the way the structure of the economy and the workforce subordinates the interest of women, especially childbearing Black women”).


210

Lives in the Law

245. See, e.g., Epstein, “Non-work Aspects of Work,” 47–50 (criticizing productionist models of work for excluding such experiences as well as the noninstrumental aspects of work itself). 246. See Roslyn L. Feldberg and Evelyn Nakano Glenn, “Male and Female: Job versus Gender Models in the Sociology of Work,” Social Problems 26 (1979): 524–27 (criticizing the earlier sociology of work tradition for assuming a “job model” for men, who are presumably committed to paid work, while positing a “gender model” for women, who are presumably committed to family life). 247. See, e.g., McCaffery, “Slouching towards Equality,” 602, 626, 653, 671 (arguing for the repeal of Title VII and the adoption of reforms that allow women to shape work/family patterns different from men’s). 248. See, e.g., Silbaugh, “Marriage Contracts,” 98 n. 122 (arguing that “the unequal division of labor within the home cannot be said to be inherently problematic or unproblematic without accounting for many differences among women,” and what is “problematic is the disparate legal treatment of labor inside versus outside the home”). 249. See, e.g., Christine A. Littleton, “Reconstructing Sexual Equality,” California Law Review 75 (1987): 1292 (criticizing “assimilation” models that “[insist] that women who enter time-demanding professions such as the practice of law sacrifice relationships (especially with their children) to the same extent that male lawyers have been forced to do”). 250. See Arlie Russel Hochschild, The Time Bind: When Work Becomes Home and Home Becomes Work (New York: H. Holt and Metropolitan Book, 1997), 12. 251. See Kalleberg et al., Nonstandard Work, Substandard Jobs, 6; Arne L. Kalleberg and Barbara F. Reskin, “Gender Differences in Promotion in the United States and Norway,” Research in Social Stratification and Mobility 14 (1995): 255. 252. See Epstein, Part-Time Paradox, 29–37. 253. Fraser, Justice Interruptus, 62. 254. See Jacobs and Gerson, “Gender-Equitable Work Week,” 462 (“While well-educated and highly trained employees who are paid on a salaried basis . . . may be facing increased pressure to put in long hours at the office, those with less secure jobs . . . may have a difficult time getting the amount of work they desire”); Jerry A. Jacobs and Kathleen Gerson, “The Endless Day or the Flexible Office?” Report to the Alfred P. Sloan Foundation, June 1997, 12–16. 255. See Jacobs and Gerson, “Gender-Equitable Work Week,” 466–67; Jacobs and Gerson, “Endless Day,” 45–46. 256. See also Jacobs and Gerson, “Gender-Equitable Work Week,” 468–69 (urging a thirty-five-hour workweek); Jerry A. Jacobs and Kathleen Gerson, “Who Are the Overworked Americans?” Review of Social Economics 56 (1998): 457. 257. Jacobs and Gerson, “Overworked Americans,” 448–50. 258. Ibid., 452. 259. See ibid., 457; see also Fraser, Justice Interruptus, 62 (noting the need for men and women to have time to integrate all aspects of life).


Labor’s Subjects

211

260. For example, instead of one person working sixty hours a week while his or her partner stays at home to care for the house and children, or one person working forty hours a week while the partner combines a twenty-hour-aweek job with after-school care of the children, changing the workweek—and the definition of “full time”—to thirty hours could help create a new norm in which each partner worked a standard, thirty-hour job and divided the household labor equally. 261. For a historical examination of the original Fair Labor Standards Act that describes work-spreading as one of its central purposes, see Deborah C. Malamud, “Engineering the Middle Classes: Class Line-Drawing in the New Deal Hours Legislation,” Michigan Law Review 96 (1998): 2285–86. 262. See David Woodruff, “In France, Working Long Hours Becomes a Crime: Inspectors Enforce Shorter Workweek,” Wall Street Journal, June 15, 1999, A15. 263. See Jennifer Hunt, “Has Work-Sharing Worked in Germany?” Quarterly Journal of Economics 114 (1999): 119–21. According to Kathryn Abrams, “Cross-Dressing in the Master’s Clothes,” Yale Law Journal 109 (2000): 759 n. 61, a thirty-hour standard workweek has also been actively advanced in Sweden by both feminists in the Social Democratic Party and by two smaller parties. 264. See Dora L. Costa, “Hours of Work and the Fair Labor Standards Act: A Study of Retail and Wholesale Trade, 1938–1950,” Industrial and Labor Relations Review 53 (2000): 662 (explaining that the proportionate decline was 18 percent for both men and women in the North, and—owing to more effective minimum wage laws—23 percent for men and 43 percent for women in the South). 265. Maine recently enacted legislation limiting the amount of mandatory overtime worked by most private and public employees to not more than eighty hours in any consecutive two-week period. See 2000 Maine Legislative Service 750 (West). I am grateful to Jennifer Wriggins for pointing out this legislation to me. 266. See Richard B. Freeman, “Work-Sharing to Full Employment: Serious Option or Populist Fallacy,” in Generating Jobs: How to Increase Demand for Less-Skilled Workers, ed. Richard B. Freeman and Peter Gottschalk (New York: Russell Sage Foundation, 1998), 195, 209. 267. SAS Institute, a computer firm in North Carolina, has successfully reduced its workweek to thirty-five hours, and Sun Microsystems has even gone so far as hiring counselors to advise their employees how to “get a life” beyond the job. See Leslie Kaufman, “Some Companies Derail the ‘Burnout’ Track,” New York Times, May 4, 1999, A1. Some economists have voiced concerns that many professionals’ long, intense hours reduce welfare and merit correction. See, e.g., Fredrik Andersson, “Career Concerns, Contracts, and Effort Distortions,” typescript, October 1999 (contending that many professionals’ long hours and extreme hard work represent a market distortion). 268. I have argued elsewhere that sexual harassment law should not aim to banish sexual conduct from the workplace. The mere presence of sexual activity in the workplace does not inherently discriminate against or disadvan-


212

Lives in the Law

tage women. See Schultz, “Reconceptualizing Sexual Harassment,” 1794 and n. 568. Indeed, in sex-integrated settings where men and women work alongside each other in equal roles, there is evidence that flirting and other sexual conduct continues, but it is not experienced as harassment. See Gutek, Sex and the Workplace, 143, table 2. The attempt to purge sexuality from the workplace can have drastic harmful consequences for sexual minorities. See Schultz, “Reconceptualizing Sexual Harassment,” 1785 (showing that some lower courts have held gay supervisors’ sexual advances toward other men as actionable harassment, while simultaneously refusing to protect gay men from sex-based harassment at the hands of men perceived to be heterosexual); ibid., 1789 (predicting that courts will be more likely to suppress benign sexual expression that does not undermine gender equality where the sexuality involved is perceived as deviant); cf. Janet E. Halley, “Sexuality Harassment,” typescript, January 13, 2000, 2–4 (criticizing conventional sexual harassment theories from a queer theory perspective). Gay men and lesbians, bisexuals, transsexuals, and other sexual minorities must be free to express their identities in a workplace culture that invites support rather than disapproval—let alone sexual harassment claims. See Fair v. Guiding Eyes for the Blind, Inc., 742 F. Supp. 151, 152–57 (S.D.N.Y. 1990) (involving a sex harassment claim against a gay male supervisor for simply talking about homosexuality in a way that offended a heterosexual woman who worked in the office). For a discussion of Fair and other worrisome harassment claims targeted at gays and lesbians, see Schultz, “Reconceptualizing Sexual Harassment,” 1790, 1793. 269. See Ferree, “Working Class Feminism,” 175. 270. See ibid., 181. 271. See Mansbridge, Why We Lost the ERA, 216, table a(9). 272. Ibid.; see also Luker, Abortion. Mansbridge also found that over time the gap between the views of employed women and homemakers had further diverged, a trend that she attributed to the “growing liberalism of women in the labor force” as well as to “the higher rates of conservative attitudes among the shrinking group who remained at home” (Why We Lost the ERA, 204, 217). 273. Consistent with Mansbridge’s and Luker’s findings, historical research suggests that women who worked at paid jobs may have found it easier to marshal political support for women’s suffrage among their male counterparts. Elinor Lerner reports that in New York City in the early twentieth century, male support for the Nineteenth Amendment was higher in Jewish and in some Italian neighborhoods, where women and men from the community and frequently from the same household tended to work together in the same trades and occupations (including in the heavily unionized garment industry). Male support was also higher in white Anglo-Saxon middle-class communities, where working women did not necessarily live with but did share the same professional and artistic callings as neighborhood men, than it was in Irish neighborhoods, where women were less likely to work at paid jobs, or if they did, worked in separate occupations from the neighborhood men. See Elinor Lerner, “Family Structure, Occupational Patterns, and Support for Women’s


Labor’s Subjects

213

Suffrage,” in Women in Culture and Politics: A Century of Change, ed. Judith Friedlander et al. (Bloomington: Indiana University Press, 1986), 234. 274. See Friedan, The Feminine Mystique, 344–57; Cynthia Fuchs Epstein, “The Major Myth of the Women’s Movement,” Dissent (fall 1999): 83, 83–86; De Hart, “New Feminism,” 493. 275. DeParle, “Symbol of Welfare Reform,” A1. 276. Lynette Holloway, “Contest Essays Find Heroes Near Home,” New York Times, March 25, 1999, B5. 277. Nancy Polk, “When Life Is a Song, and Also a Cause,” New York Times, April 18, 1999, 3.

RT9239_C00.qxd

6/25/04

12:51 PM

Page ii


France and Trials for Crimes against Humanity Annette Wieviorka

On April 2, 1998, a verdict was finally reached in the longest trial in the history of French justice. Maurice Papon was sentenced to ten years in prison for complicity in crimes against humanity. This may be the last French trial linked to the events of the Second World War.1 It is probably also the most complex and significant. Trials were numerous immediately after the war. They took place within the framework of long-standing legislation, persons found guilty being sentenced under article 75 of the penal code, which punished the crimes of treason and collusion with the enemy. Those who were charged at this time appeared before various courts of law, most notably the High Court. It was made up of three magistrates and twenty-four jurors, selected from members of parliament who had not voted to give Pétain full power2 and from persons best known in the Resistance. It was the task of the High Court to judge the head of state, Marshal Pétain, as well as the ministers, secretary generals, and governors who had held their positions after June 16, 1940. One hundred of them were tried, fifteen of them in absentia. Of the eighteen death sentences (ten reached in absentia), five were commuted (among them Pétain’s) and three were implemented: Laval, de Brinon, and Darnand were executed. In addition to the High Court, the accused could appear before military tribunals, already an antiquated structure;3 they could come before courts of justice composed of one magistrate and four jurors who functioned as an assizes court; or they could come before “civic rooms” whose power was limited to advocating either acquittal or a newly created sentence, “national indignity.” The latter submitted that 215


216

Lives in the Law

the person in question had in effect excluded himself from the nation by participating in the Vichy regime’s activities and was therefore deprived of his civil rights. The Nuremberg trials took place elsewhere—geographically, politically, and judicially. France, a signatory of the London accords that established the Nuremberg tribunal, accepted de facto the new notion in international law of crimes against humanity. But accepting this notion did not mean integrating it, either in French law or in concept. Time had to pass, mentalities had to evolve, and politics had to be worked through before the first charges of crimes against humanity were brought. Such were the charges that led to the trials of Klaus Barbie, Paul Touvier, and Maurice Papon. France, Nuremberg, and Crimes against Humanity France hardly invested itself in the preparatory phase of the Nuremberg trial. It sent only one man to the London conference, Judge Robert Falco. The process by which he was chosen reveals the French government’s indifference to the preparations. “In early June” (1945), he writes, while I was pursuing my peaceful tasks at the Court of Appeals, a note informs me that English-speaking councilors wishing to be placed as judges at the international tribunal, which was just being created, were asked to make themselves known. I hesitate due to my incomplete command of a language I have not used in over forty years, but on the advice of certain family members I eventually sign the list, on which, by the way, I am the only one to appear. Several days later, I suggest to the minister of justice that in fact I should occupy the public minister’s seat and that the judge’s seat, by all rights, ought to be conferred upon Mr. Donnedieu de Vabres, professor of penal law at the University of Paris. I would then be responsible for preparing the French indictment and presenting it to the jury. A particularly ponderous honor is thereby conferred upon me. But Coste-Floret, cabinet member of the Ministry of Justice, Teitgen, as well as the vice president of the Council of State, Cassin, who plays a big role in the organization of the repression of war crimes, strongly urge me to accept, and, com-


France and Trials for Crimes against Humanity

217

pletely dumbfounded, I am informed that I am to leave for London immediately in order to participate in a preliminary conference among the representatives of the United States, England, the USSR, and France—simply to make contact, I’m told at the Chancellery and at the Ministry of Foreign Affairs, a mission more diplomatic than judicial that should last no more than a few days.4 Falco left France on June 25. In London he was supposed to fulfill a task for which, he says, he had received no instructions. Falco lacked everything, having neither interpreter nor secretarial staff. The French ambassador in London tried in vain to focus the attention of the provisional government of the French Republic on the necessity of being well represented in London because the trial would be of historical importance. But the interest France brought to this trial was slim, and its contribution to working out the London accords was limited. At the Nuremberg trials the prosecution of war crimes and crimes against humanity in the West was allotted to France; those perpetrated in the East were the responsibility of the Soviet prosecution. Was there a clear distinction in the mind of the French prosecution of the difference between war crimes and crimes against humanity? I don’t believe so. Nevertheless, in rereading the minutes of the trial I am struck by the acute analysis of the persecution of the French Jews given by one young lawyer, Edgar Faure. In his analysis Faure benefited from an extraordinary opportunity given him by the Center of Contemporary Jewish Documentation, an organization secretly created in 1943 by Isaac Schneersohn in Grenoble, then occupied by the Italians, whose task it was to collect all documents pertaining to the persecution of Jews in France.5 Historians like Léon Poliakov and Joseph Billig worked there. The opportunity from which the French adjunct prosecutor benefited is that at the last moment the officials of the CCJD handed him “in the utmost personal confidence” a “manna of unpublished documents.” “I spent entire afternoons examining these archives on microfilm, from which I was able to ascertain a number of decisive details allowing me to understand the complicity that went on at all levels and in all ramifications.”6 Faure undertook his task in a highly conscientious and masterful manner, and the reflections he offered at the time have hardly aged, even in light of the many subsequent studies. In a work published in 1947, he summarizes the positions that guided his procedure in


218

Lives in the Law

Nuremberg: “Just as anti-Semitism does not constitute the entire racist doctrine but is its primary and promotional manifestation par excellence, so the persecution of the Jews does not exhaust Nazi criminality—far from it—but it constitutes, in different countries and at different periods of the war, its most permanent and undoubtedly its most significant aspect.”7 What Faure showed, as would many historians after him,8 was that all the parts of the state contributed to the crimes against the Jews: “the monstrous function is not juxtaposed to the regular functions; it is articulated in them and comments on them.” And, he asserts, “In this mechanism of ‘the criminal public service,’ which itself results from an inhumane doctrine, reside the novelty and profound evil of the proceedings that this tribunal had to judge.” “It is in the persecution of the Jews—the most general and, if one may phrase it thus, the most ‘fundamental’ of Nazi crimes—that the methodic nature of Nazi criminality is most blatant and thus best lends itself to analysis.”9 In his introductory speech, the French state prosecutor, François de Menthon, spoke in vague terms of “race” and “racism” and never mentioned anti-Semitism. Faure, on the other hand, was fully explicit. What he wanted to show the tribunal was that if Nazism had a philosophy of criminal activities, it also possessed a “bureaucracy of crime.” Every crime, he explained, implies a chain of transmission; it matters little to an executive that his signature appears on a document. That executive’s responsibility is established “by the fact that a criminal act was perpetrated administratively by a department whose hierarchy ends with that executive.” And, he explained, “In all hierarchical state departments there exists a continuous network of authority which is at the same time a continuous network of responsibility.” In addition to the definition of crimes against humanity, to which we will return, a link exists between the charges elaborated by Faure at Nuremberg and the trials of Klaus Barbie and Maurice Papon. Klaus Barbie’s trial in 1987 centered around the arrest and deportation of the children of Izieu; it was this trial that made France, as a nation, aware of the tragedy of these children, who became a part of French history and collective memory.10 Faure had mentioned the tragedy of Izieu in his closing speech for the prosecution. Among the documents read to the jury was a simple telegram:



219

Lyon, April 6, 1944, 20h10 Subject: Jewish children’s home in Izieu (Ain) This morning, Jewish children’s home, “children’s camp” at Izieu (Ain) was closed. A total of 41 children, ages three to thirteen, were taken. In addition, the entire Jewish staff, which consisted of ten individuals of whom five were women, was arrested. We were unable to obtain either cash or other articles of value. Transportation to Drancy will take place April 7, 1944. Faure specified at Nuremberg that this telegram contained a handwritten note: “Matter discussed in the presence of Dr. V.B. and Hauptsturmführer Brunner. Dr. V.B. said that for matters like this, special procedures concerning the lodging of children had been foreseen by SS-Obersturmführer Röthke. SS-Hauptsturmführer Brunner says he has no knowledge of such instructions or plans and that in principle he does not approve of such measures. In this case he will also proceed in the usual manner of deportations. I have not yet made an official decision in this matter.” He commented: I think one can say that there is something even more striking and more horrifying than the concrete fact of the children’s deportation, that being the administrative nature, the report that is made of it along hierarchical channels, the conference at which different officials calmly discuss that matter as they would any in the course of their normal day. All the cogs of the state, and I speak of the Nazi state, are put in motion in such a case and to such an end. This is the true illustration of the term we find in the Danneker report [“La question juive en France et son traitement,” July 1, 1941], “the cold-blooded manner.” When Faure read the telegram to the court, presented under the code RF 1235, he did not specify the name of the signatory, who was not important to his presentation and who was yet a minor character in comparison to those who sat in the dock. This signatory was Klaus Barbie. Barbie himself was later tried in France in absentia in 1952 and 1954, but at these trials the deportation of the children of Izieu was not


Lives in the Law

220

mentioned. It is precisely this “oversight” in specifying Barbie’s role in the persecution of Jews that made it possible to try him again, as French law does not permit double jeopardy, that is, allowing those who have already been judged to be tried again for the same crime. The First Two French Trials of Crimes against Humanity: Klaus Barbie and Paul Touvier Crimes against humanity were, for several reasons, not at the center of the Nuremberg trials. One reason has to do with their definition, which ultimately makes them very close to war crimes,11 a charge that was in most cases enough to ensure the conviction of the accused.12 But above all, in the definition used at Nuremberg, crimes against humanity had to be committed immediately following or in connection with other crimes: crimes against peace, plotting against the peace, or war crimes. Crimes against humanity were thereby bound to the war itself; they could not constitute autonomous charges. This restriction was linked to the desire of the United States—largely shared by other countries—not to judge crimes committed by the state against its own nationals or foreigners residing in the country—to put it plainly, so as not to allow interference in the interior affairs of a heretofore sovereign state. Therefore the Nazi leaders could not be prosecuted for crimes committed in Germany before the declaration of war, except by relinking them to the war by means of a “plot against the peace.” Thus, as the French judge Donnedieu de Vabres noted, the notion of crimes against humanity, which had been so difficult to define, and which had been introduced as a backdoor measure, was “dismissed in the face of hard evidence.”13 It was over the question of evidence that an anxiety began to emerge in the early 1960s. By that time, in most European countries crimes committed during the war would have to be proved twenty years after the fact. If Hitler, Borman (who was sentenced to death in absentia at Nuremberg), or Mengele were still alive, they could resurface, unpunished and free. For that reason, the French parliament voted unanimously to pass a law that made crimes against humanity, as they were described at Nuremberg, imprescriptible. No one at this time dreamed that the complicity of the French state, that is to say, the Vichy government, in the deportation and killing of Jews would eventually



221

come to light. It was not until the 1970s that the memory of the fate of the Jews in France was awakened and entered the public arena.14 With the arrest, extradition, and trial of Klaus Barbie, what had been nothing more than a declaration of intent—the imprescriptibility of crimes against humanity—was confronted with legal reality. The difficulties in the definition of crimes against humanity became evident when it was applied to the case of Klaus Barbie. The state prosecutor in his trial in Lyon, Pierre Truche, noted the twofold difficulty: How to rightly define the victims of crimes against humanity? How to rightly define the authors of such crimes? The definition of Nuremberg described victims as “civilian populations.” Barbie was accused of having deported some 650 people, Jews and Resistance fighters in almost equal numbers, on one single train on August 11, 1944. The Jews were apparently civilians, arrested, deported, and assassinated simply because, as the apt expression of Frossard goes, they had been born.15 But the Resistance fighters deported to Buchenwald, Dachau, or Mauthausen—who were they? In France, after the war, they were given the title voluntary combatants of the Resistance. In their role as combatants, their arrest, torture, and inhumane treatment in the Nazi camps fell into the category of war crimes, prescriptible in French law. If, however, one puts in parentheses their character as combatants and instead emphasizes the singular nature of their sufferings, that is to say their character as victims, they are victims of crimes against humanity. In the early stages, the president of the Court of Criminal Appeals, Huber Ogier, kept to the definition of Nuremberg, as did the prosecutor, Pierre Truche. There is, on the one hand, the Resistance fighter who knew of the consequences of an arrest to his physical well-being and his life and who courageously accepted the dangers being incurred. . . . On the other hand, there is a two-year-old Jewish child like the one who was deported August 11 on the last train, who does not really know yet what it means to be Jewish. There are the old people, couples without means of defense who pose absolutely no threat to the occupying army and who are therefore “innocent.” That is to say they are harmless, they are “inoffensive.” And the opposite is not “guilty” but “offensive.” Is it not natural that the strongest legal protection should go to those who are without protection?16


222

Lives in the Law

In the end the Court of Criminal Appeals did not follow Truche but instead expanded the definition of the victims of crimes against humanity so as to include “the adversaries—whatever the form of their action—of a politics of ideological hegemony in whose name inhumane acts and persecutions were committed.” Truche, in his closing comments against Barbie, aligned himself with this definition: “Thus, although in Nuremberg the notion of a war crime had absorbed that of a crime against humanity, here, the opposite has happened.”17 Who can be considered the author of a crime against humanity? During Barbie’s trial the question was hardly posed, so evident was it that Barbie, head of the Gestapo of Lyon, was the author of crimes. This was nevertheless the ruling of the Court of Appeals, which in expanding the definition of the victims also expanded—as if by ricochet—that of the executioners by introducing a notion absent from the Nuremberg law, that of “the state practicing a politics of ideological hegemony.” Although the state in question was Nazi Germany, the definition allows for the possibility that another state could practice such a politics—Vichy France, for instance. This is exactly what happened with Paul Touvier. The indictment and trial of the former militiaman show the difficulty of a notion that was inconsistently applied in France. Like Barbie, Touvier had already been tried in absentia twice, on September 10, 1946, by the court of justice in Lyon, and on March 4, 1947, by the court of justice in Chambéry, and been sentenced to death both times for his participation in assassinations perpetrated by the militia in the Lyon region. Touvier in January 1944 was the regional commander of the second division of the Rhone Militia, a position that made Touvier, like Barbie, a culprit of second rank. He therefore had escaped the execution of his sentence with the support of a network linked to the Catholic Church.18 These sentences were statutorily prescribed in French law twenty years after the condemnation. At the end of the sixties, Touvier could therefore reappear. Nevertheless, even though the principal sentence (the death penalty) was dismissed, two sentences considered subsidiary were not: the confiscation of his belongings and the deprivation of his civil rights. But President George Pompidou pardoned him, except for the deprivation of his civil rights. The media seized on the affair,19 and Touvier went underground again, with the result that in November 1973, the son of one of the victims of a firing squad at Rillieux-la-Pape brought a charge of crimes against humanity. We will not



223

spend time here on the events that finally brought Touvier before the Court of Assizes of Versailles. Of what crimes, then, could Touvier be found guilty? The investigation of his case was handled within a legal framework that was redesigned by the trial of Klaus Barbie. A member of the militia20 created by the French state and an instrument of its policy of “ideological hegemony,” the crimes he committed would then be crimes against humanity. Among these crimes was the assassination of seven men, all Jewish, in Rillieux-la-Pape, Ain, on June 29, 1944, in reprisal for the execution by the Resistance of Phillippe Henriot, the secretary of state for information and propaganda. On April 13, 1992, the Court of Criminal Appeals in Paris dismissed the case for lack of evidence, the three magistrates maintaining that in Vichy “no precise ideology existed.” The decision surprised some of the public and irritated certain historians, who did not take kindly to the law overstepping its role and passing judgment on historical fact.21 Indeed the Court of Criminal Appeals delivered a verdict not on the crimes of Touvier but on the nature of the Vichy government. According to the ruling, the expression “state practicing a policy of ideological hegemony” might apply to Hitler’s Reich, but could not be applied to Vichy. I will not here enter into the twofold debate opened by the Court of Criminal Appeals, one on the nature of the Vichy government and one on the law’s right to claim historical fact. Under Pierre Truche, who had been promoted to attorney general, the Court of Criminal Appeals partially nullified this ruling on November 27, 1992. Only partially, however: of the crimes with which the investigation was concerned— notably the assassination of the former president of the League of the Rights of Man, Victor Bosch, and of his wife Hélène on January 10, 1944—only one crime remained: the assassination of the Jewish hostages at Rillieux-la-Pape. The investigation retained this charge precisely by using the definition offered at Nuremberg: the assassinations at Rillieux were committed by order of the Gestapo, an organization belonging to a state practicing a policy of hegemony. The trial of Touvier would not then be the trial of Vichy, or more precisely of its anti-Semitic policy, as some claimed. The crime against the Jews remained chained to Nazi anti-Semitism. Touvier, who in his defense insisted that the execution of the hostages was carried out under German command, found himself, by a boomerang effect, caught in a trap of his own making.


224

Lives in the Law

What remains of Touvier’s trial in the public’s memory? Virtually nothing. The names of the hostages killed in Rillieux-la-Pape have hardly entered the collective memory. Touvier was an insignificant regional officer of the militia whose actions were quite often—shall we say banally?—villainous. Public opinion was slightly aware that the global fate of Jews was marginally revealed in the shape of men like Touvier, to whom murdering Jews and pillaging their goods was an ordinary way of life and whose crimes were in certain respects related to crimes of common law. It is not only the legal obstacles that prevented this trial from being “the Vichy trial,” but equally the personality and the role of Touvier. For these reasons, the trial of Maurice Papon assumed an unusual importance. The Trial of Papon and Crimes against Humanity Papon was the first Frenchman belonging to the Vichy administration to be brought before the courts on charges, not of crimes against humanity, but of complicity in crimes against humanity. Herein lies the essential importance of Touvier’s trial. Crimes against humanity were still defined as they were at the Nuremberg tribunal. A major difference between Klaus Barbie and Paul Touvier on the one hand and Maurice Papon on the other was that the latter had not been tried during the Liberation. And if Barbie and Touvier had directly perpetrated their violent acts on their victims, this was not the case with Papon. The Papon affair exploded on May 6, 1981, between the two rounds of presidential elections that would see the victory of François Mitterand over Valéry Giscard d’Estaing. On that day the Canard enchaîné published documents carrying the signature of Papon that implicated him in the deportations of Jews in Bordeaux. Papon at the time was minister of finance, the apogee of a long and illustrious career for him: prefect of Landes, of Corsica, of Costantine in Algeria, then prefect of police in Paris from 1958 to 1966 (that is to say during the Algerian war),22 président directeré général of Sud-aviation, deputy of Cher Union de Défense de la République, then Rassemblement pour la République. In response to the published documents, in May 1982 Serge Klarsfeld brought six charges. In July 1982, the public prosecutor’s office filed a preliminary indictment. On January 19, 1983, Papon was charged for the first time with crimes against humanity. The reading of the charges, an interminable list, sixty-nine pages



225

long, began Tuesday, October 14, 1997, in the Bordeaux Court of Appeals and took two afternoons. The court charged that Maurice Papon committed crimes against humanity “by being complicit in the illegal and arbitrary arrests, the illegal and arbitrary sequestration, the premeditated murders . . . that were carried out or committed by the representatives of agents of the German government against persons of Jewish origin.” He “knowingly provided aid and assistance that was necessary to the preparation or execution of their actions to the perpetrators of these crimes, in this case by participating through personal acts and instructions to his subordinates in the necessary operations.” The indictment concluded with the reading of a list of the eight trains that left Bordeaux between July 1942 and May 1944, and that of the seventy-two victims in whose name the charges were brought. The trial could then begin. It was, as the state prosecutor noted on the first day, “the trial of a man and not of a regime.” There was reason to mention this in the courtroom: the press had been saying for weeks that the trial was meant to judge the Vichy government and thereby to give the country’s youth a “history lesson.” One man then: Maurice Papon, named secretary general of the Gironde prefecture in May 1942. A month later, he was given signatory rights for the prefect’s duties that were associated with the war. Among these duties was the matter of the Jews. The prosecution asserted that he had “total control” of that matter and that he actively participated in the organization of a dozen trainloads of Jewish prisoners between the camp at Mérignac, near Bordeaux, and the transit camp at Drancy in the outskirts of Paris, a holding camp for Auschwitz. As Victor Basch stated, “Maurice Papon would not be able to maintain that he was no more than a subordinate official acting only under orders and without power over the camps at Mérignac. . . . The prosecution shows that he intervened in the duties of the civil and military police by giving orders of arrest and internment” in keeping with anti-Jewish laws. The prosecution focused on Papon’s zeal: “Even when instructions had been requested from the central authorities of the Vichy government, this did not prevent Maurice Papon and the department of Jewish affairs from anticipating their answer and executing the orders of the occupying force without waiting.” “It appears,” added the prosecution, “that in the matter of anti-Jewish persecutions, Maurice Papon acted as technician, always trying to prove his incontestable competence and efficacy.”


226

Lives in the Law

In unison, the magistrates who drafted the charges preempted an objection: “Maurice Papon would not be able to plead the position of constraint in which he would have found himself.” In fact, they said, if “one can take for granted that the German demands were expressed with force and determination and that in certain cases they were accompanied by threats of reprisal against the officers of the French police, the investigation does not show that these pressures were so great as to constitute a constraint that would abolish the free will of Maurice Papon.” Thus, “Maurice Papon cannot avail himself either of the order or the authority of the law, nor the order of his superior, the illegality of an order in matters of crimes against humanity always being manifest.” Papon knew that the arrest, the sequestration, and the deportation of Jews, which were themselves crimes against humanity, “would ineluctably lead them to their death.” It was asserted that “even before taking his office, the former secretary general of the Gironde prefecture had a clear, reasoned, detailed, and continuous understanding of the plan designed by the Nazis . . . even if he was able to remain ignorant of the exact conditions of their final sufferings and of the technical means employed to kill them.” This last point the defense would contest by calling on the work of historians in particular. It was primarily the lawyer Michel Zaoui, the last to plead on behalf of three associations of deportees and of the Federation of the Jewish Society of France who, with Arno Klarsfeld, established the connection between Nuremberg and the trial of Maurice Papon. It was Edgar Faure’s closing speech at Nuremberg that inspired his own: “Nazism had a philosophy of criminal activity and a bureaucracy of criminal activity,” he explained, quoting Faure. “The Vichy government did not have a criminal philosophy, but it did nevertheless have a criminal bureaucracy.”23 Still drawing on Faure, he then underlined that “it is not the signature that is the demonstration of responsibility, but the very involvement ‘in the chain of responsibility in the execution of the crime’” because the “crime against humanity is made up of an infinite number of criminal acts that are disassociated one from the others. It is a matter of a collective crime. Maurice Papon has, whether one likes it or not, participated in this chain of death.” And he called again on Faure’s words, already cited, which asserted that there existed a continuous network of authority and a continuous network of responsibility. To Zaoui, a crime against humanity was therefore a “crime of



227

office.” The lawyer may not have entirely convinced the jury, but his presentation was taken up by the media in general. Bertrand PoirotDelpech, columnist for the newspaper Le Monde, chose the expression “crime of office” to entitle his piece on the trial.24 The framework of the trial was thus set. As the legal editor for the daily Le Monde, who was covering the trial, wrote, “The rest is henceforth legal documentation. Much discussed by the press during its sixteen years of proceedings and within the justice system for nearly as long, the Papon affair finally led to this unusual trial that defied all statistics: six months in all, ninety-four days of hearings, sixty-three hundred documents brought to the proceedings, thirty thousand pages of documentation, eighty-five witnesses, twelve hours of opening remarks, forty hours of speeches for the defense of civilian litigants, twenty hours of defense, nineteen hours of deliberation.”25 The extensive coverage by all media26 and the publication of a large number of books both during and immediately following the trial should also be mentioned.27 I will not give the account of its unfolding, which was full of events that kept the media holding their breath. What definitively appeared— and this is probably the trial’s true lesson in history—is the extreme difficulty in tracing a precise diagram of the local Vichy administration and its connections to Nazi offices, and to thereby grasp where the real decisions were made. Papon certainly belongs to what Primo Levi called the “gray zone,” a zone practically indefinable that at one and the same time links and separates the veritable organizers of mass crime and its victims. This probably explains the mixed verdict of the Bordeaux jury. On April 2, 1998, the court condemned Papon to ten years of imprisonment, a sentence accompanied by the suspension of his civic and civil rights for that same length of time. This verdict meant that Papon did not have criminal intent and that the inhumane acts of which he was accused concerned only complicity in arrests and “the arbitrary sequestration,” that is, the organization of the deportations. The French jurors showed little enthusiasm for the legal label “crimes against humanity.” The three belated trials of Barbie, Touvier, and Papon posed multiple problems that were widely debated. What is the relationship between history and justice? What is the role of the witness in this kind of a trial? Can memory only be used through the intermediary of judi-


Lives in the Law

228

cial procedures? One of the tangible results of these trials, however, is that they introduced the notion of crimes against humanity to the legal landscape and to public opinion.

NOTES Translated by Lynn Prince, University of Masaschusetts Translation Center. 1. At the time of this writing the first complaint has just been brought against the French state concerning the despoilment of goods during the Occupation. The plaintiff is accusing the French state of “receiving stolen goods,” an imprescriptible crime, and of complicity in crimes against humanity. It is therefore not impossible that other proceedings will open up that will be linked to the question of the belongings of those people whom the Vichy government and the Germans defined as Jews during the occupation (1940–44). On the other hand, Aloïs Brunner, one of Eichmann’s adjuncts, who was responsible for deportations from France from the summer of 1943 on, a refugee in Syria, is to be tried in absentia in the coming months unless proof is furnished that he is deceased. 2. On July 10, 1940, the deputies and senators who had come together at the National Assembly bestowed full authority on the government headed by Phillipe Pétain to promulgate a new constitution of the French state, a constitution that never saw the light of day. This full authority was obtained thanks to the vote of 569 deputies; 20 members of parliament abstained, and 80 voted against it. 3. The army’s war councils arose during the Directory (law of 13 Brumaire, year V). They were renamed as military tribunals in 1928. See JeanClaude Farcy, Guide des archives judiciaires et pénitentiaires, 1800–1958 (Paris: CNRS Editions, 1992), 69ff. 4. Robert Falco, “Souvenirs de Nuremberg. 1945–1946,” manuscript made available by Mme Pouillon-Falco, Judge Falco’s daughter, whom I wish hereby to thank. A copy of these memoirs was made available at the time of the colloquy organized in 1995 at the Caen Memorial. Robert Falco, a Jew, was dismissed by the Vichy government. He therefore had no professional occupation during the war. 5. For information on the creation of the CCJD, I point to my study “Un lieu de mémoire et d’histoire: Le mémorial du martyr juif inconnu,” Revue de l’Université de Bruxelles nos. 1–2 (1987): 107–32. Unlike Oneg Shabbat d’Emmanuel Ringelblum, I show in this piece that the Documentation Center worked during the Occupation in preparation for the postwar period. In particular they worked toward the restitution of “aryanized” goods. Their archives, which are the center’s richest resource, were acquired after the war. 6. Edgar Faure, Mémoire II. Si tel doit être mon destin ce soir . . . (Paris: Plon 1984), 33. 7. La Pérsécution des Juifs en France et dans les autres pays de l’Ouest présenté par la France à Nuremberg, a collection of documents published under the direc-



229

tion of Henri Monnery, deputy public prosecutor of the International Military Tribunal, with a preface by René Cassin, and an introduction by Edgar Faure, adjunct public prosecutor at the International Military Tribunal (Paris: Editions du Centre, 1947). 8. In particular Raul Hilberg, in his major work, La destruction des Juifs en Europe (Paris: Fayard, 1988). On the French administration see especially MarcOlivier Baruch, Servir l’Etat (Paris: Fayard, 1997). Aside from a handful of jurists and those who in one capacity or another attended or participated in them, the Nuremberg trials elicited surprisingly little commentary or studies until the last few years. The international colloquy of historians organized in Caen on its fiftieth anniversary constitutes one exception. It was organized by the Caen Memorial and the CNRS (CRHQ) and held October 26, 27, and 28, 1995. The papers were collected and published as Les procès de Nuremberg et de Tokyo, ed. Annette Wieviorka (Brussels: Complexe, 1996). 9. Edgar Faure in La Pérsécution des Juifs, 21–22. 10. In fact, shortly after Klaus Barbie’s trial, the decision was made to create the association for the memorial museum. In July 1990, thanks to a contribution, the association acquired the house in Izieu, in the Ain region, where forty-four Jewish children, their principal, and their teachers were rounded up by Klaus Barbie’s Gestapo. The goal was to create a museum whose theme would be the children of Izieu and crimes against humanity. President Mitterand inaugurated the museum on April 24, 1994, the National Day of Deportation. 11. Let us remind ourselves of the two definitions of war crimes, “violations of the laws and customs of war. These violations include, but are not limited to, the assassination, inhumane treatment or deportation for forced labor or any other purpose of civilian populations in occupied territories; the assassination or inhumane treatment of prisoners of war or persons at sea; the execution of hostages, the pillaging of public or private goods, the unfounded destruction of cities and towns or devastation that is not justified by military necessity.” Crimes against humanity are “the assassination, execution, sequestration, deportation and all other inhumane acts committed against any civilian population, before or during the war, or persecution for political, racial or religious purposes so long as these acts or persecutions, whether or not they constitute a violation of the internal laws of the country in which they are perpetrated, were committed immediately following any crime which lies in the domain of the tribunal or which is related to that crime.” See La Pérsécution des Juifs. 12. Julius Streicher was the only accused to be given the death penalty for crimes against humanity alone. 13. Cited by Pierre Truche, “Le crime contre humanité,” in Les Cahiers de la Shoah, ed. André Kaspi (Paris: Liana Levi, 1994). 14. I refer you to two of my publications: Déportation et génocide, entre la mémoire et l’oubli (Paris: Plon, 1992; new ed. Hachette-pluriel, 1995), and L’Ere du Témoin (Paris: Plon, 1998). 15. “A crime against humanity has been perpetrated when one kills some-


230

Lives in the Law

one under the pretext that he was born.” André Frossard, Le Crime contre l’humanité (Paris: Laffont, 1987), 9. 16. Cited by Pierre Mérindol, Barbie. Le procès (Paris: Laffont, 1987), 14. 17. Truch, “Le crime contre humanité,” 39. 18. The complicity of certain sectors of the church in Touvier’s various escapes was brought to light by the commission presided over by René Rémond at the behest of Cardinal Decourtray. The commission’s investigation was made possible by the opening of the archives of the archbishop of Lyon, and the results have been published in René Rémond et al., Paul Touvier et l’Eglise (Paris: Foyard, 1992). 19. First there was an article by Jacques Derogy in L’Express, June 5, 1972, then a press conference by Georges Pompidou. “Paul Touvier’s name, though remembered by several resistance fighters who had dealings with him and by the painful memories of close relations of some who disappeared, was unknown to the general public: only in 1972 did he become a symbol of the collaboration of some Frenchmen with the enemy” (Rémond et al., Paul Touvier et l’Eglise, 10). 20. The French militia issued from the Legionnaire Service, which itself emanated from the most activist kernel of the Legion of Combatants. It was created on January 30, 1943, and directly answered to the head of government, Pierre Laval. On December 30, 1943, its head, Joseph Darnand, was named secretary of state for the maintenance of public order. The militiamen, who were never very numerous (a maximum of thirty thousand for the whole territory), were renowned for their violent acts and crimes that targeted Resistance fighters and Jews in particular. 21. It would nevertheless be interesting to compare the ruling with the analyses made by several historians who adhered to Vichy ideology. They seem less antagonistic than the violent reactions to the ruling at the court of appeals might lead one to think. 22. Notably during the demonstration organized by the FLN on October 17, 1961, during which the Parisian police resorted to violence. The number of Algerian dead was at the center of controversies and was brought to the forefront. 23. I am using Michel Zaoui’s stenography for the defense, which he sent me. I wish hereby to thank him for doing so. 24. Bertrand Poirot-Delpech of the Académie française, Papon: Un crime de bureau (Paris: Stock, 1998). 25. Le Monde. Le Procès de Maurice Papon. La chronique de Jean-Michel Dumay (Paris: Fayard, 1998), 15. 26. Le Monde, for example, had four people on the spot and dedicated a page a day to the trial. 27. Among these publications, aside from those already cited, I point you to Daniel Schneidermann, L’Etrange procès (Paris: Fayard, 1998); Eric Conan, Le Procès Papon. Un journal d’audience (Paris: Gallimard, 1998); Jean-Noël Jeanneney, Le passé dans le prétoire. L’historien, le juge et le journaliste (Paris: Seuil-



231

essai, 1998); and Sorj Chalandon and Pascal Nivelle, Crimes contre l’humanité. Barbie, Touvier, Bousquet, Papon (Paris: Plon, 1998). The defense speeches of Jean-Marc Varaut, Maurice Papon’s lawyer, and of Arno Klarsfeld have also been published, as has a stenography of the trial in two volumes, published by Albin Michel.

RT9239_C00.qxd

6/25/04

12:51 PM

Page ii


Contributors

Lawrence Douglas is Associate Professor of Law, Jurisprudence and Social Thought at Amherst College. Sarah Barringer Gordon is Professor of Law at the University of Pennsylvania. Pnina Lahav is Professor of Law at Boston University. Frank Munger is Professor of Law at State University of New York at Buffalo. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science and Professor of Law, Jurisprudence and Social Thought at Amherst College. Vicki Schultz is Professor of Law at Yale Law School. Martha Merrill Umphrey is Associate Professor of Law, Jurisprudence and Social Thought at Amherst College. Annette Wieviorka is the Director of Research for the Center for Political Research at the Sorbonne (CNRS), Paris.

233

RT9239_C00.qxd

6/25/04

12:51 PM

Page ii


Index

Abernathy, Ralph, 40 Abortion, 62–66, 75, 95 Accommodationalist models, 15, 174, 176–77 Ackerman, Bruce, 158, 201n. 161 ADA (Americans with Disabilities Act), 2, 119n. 30, 160–63 Advocacy, acts of, 5–6, 8, 57, 71–72 AFDC (Aid to Families with Dependent Children), 145, 162, 202n. 176 Affirmative action, 177 African Americans, 2–3, 13–14, 148, 159–60, 165; and American-Jewish legal scholars, 23–24; and the black power movement, 21–22, 25, 30, 44–45; and the Chicago conspiracy trial, 22–25, 29, 35, 45; and welfare law, 90–116 Age Discrimination in Employment Act, 159 Agnosticism, 7, 10 Algeria, 224, 230n. 22 Alstott, Anne, 158, 201n. 161 Anger, 34–36, 92, 108 Anthony, Susan B., 59, 76 Anti-Semitism: and the Chicago conspiracy trial, 28–29, 35, 42; and trials for crimes against humanity, 218, 223. See also Holocaust; Jews Antitrust law, 2 Antiwar movement, 21, 26, 40, 44–45 Arab-Americans, 45 Arab-Israeli conflict, 23, 25, 44–45 Arendt, Hannah, 37–38 Aristotle, 5, 7, 15 Aronowitz, Stanley, 204n. 191

Asian-Americans, 24, 45 Assimilationism, 12 Auschwitz, 225. See also Holocaust Austria, 128–29 Autobiographical narratives, 2, 28–29, 30. See also Narratives Automobile manufacturers, 152–53 Backhouse, Constance B., 79n. 26 Barbie, Klaus, 216, 224, 227–28 Barenberg, Mark, 172 Barnard College, 182 Barnett, Rosalind, 141–42 Barnyard Epithet and Other Obscenities, The (Lukas), 21 Basch, Victor, 225 Becker, Gary, 132–34, 139, 175 Bergmann, Barbara, 145–47, 171, 191n. 57 Bielby, Denise, 133 Bielby, William, 133 Billig, Joseph, 217 Bill of Rights, 22 Black power movement, 21–22, 25, 30, 44–45. See also African Americans Blacks. See African Americans; Black power movement BMHA. See Buffalo Municipal Housing Authority (BMHA) Book of Daniel, The (Doctorow), 37 Bosch, Victor, 223 Brandeis, Louis, 17n. 31 Brandeis University, 30 British Medical Journal, 64 Brown v. Board of Education, 2–3

235


236 Buchenwald, 221. See also Holocaust Buffalo Municipal Housing Authority (BMHA), 90, 92, 94, 96, 113–14 Burke, Carla, 85, 91, 93, 97, 112, 115 Canonical harm principle, 10 Capitalism, 151 Capital punishment, 2, 55–58, 65, 71, 74, 215 “Caregiver Parity” model, 146–47 Carmichael, Stokely, 25 Carter, Stephen, 2 Castro, Fidel, 38 Catholics, 222. See also Christianity Causality, 11 Cause lawyering, 29–30, 35 CCJD (Center of Contemporary Jewish Documentation), 217, 228n. 5 Chicago conspiracy trial, 12, 15, 21–54 Child, Lydia Maria, 58 Child Protection Services, 92, 108 China, 3 Christ, 40–42 Christianity, 91, 93, 95, 108; and the Chicago conspiracy trial, 29, 40–42, 53n. 83; and the Hester Vaughn trial, 65; and war criminals, 222 Citizenship: and labor’s subjects, 124–28, 143, 148, 157–59, 161–67, 179–81, 183; and welfare law, 87, 121n. 43 Civic life, repositioning work as a cornerstone of, 174–83. See also Community Civil disobedience, 39 Civil rights, 10, 127–28, 159–60; and the Chicago conspiracy trial, 21–54; and crimes against humanity, 222, 227; legislation, 159; and welfare law, 89, 118n. 18, 119n. 30 Civil Rights Act of 1964, 159 Civil War: and the Chicago conspiracy trial, 23; women’s rights after, 55–81

Index Clark, Anita, 91–93, 96–97, 108–9, 113–14 Class, 13–14, 44; and the Hester Vaughn trial, 56, 65–66, 68, 71, 78n. 12; and labor’s subjects, 125, 137, 142–46, 149, 157, 160–68, 175, 180; and welfare law, 93, 102 Clauson, Cheryl, 99–104, 107 Collaboration, charges of, 36–39 Collective memory, 37, 39, 218, 224 Collectivization, 143–44 Collins, Judy, 40 Columbia Law School, 29 Comic relief, 41–42 Common Law, The (Holmes), 1 Commonwealth v. Hester Vaughn, 12–13, 55–81 Communitarianism, 9, 10, 14–15 Community: and labor’s subjects, 125, 128–29, 161–62, 170, 174–83; repositioning work as a cornerstone of, 174–83 Community Work Experience Program, 98 Concentration camps, 40, 225. See also Holocaust Congress, 22, 83. See also ADA (Americans with Disabilities Act); Age Discrimination in Employment Act; Civil Rights Act of 1964; Employment Non-Discrimination Act; Fair Labor Standards Act; Family and Medical Leave Act (FMLA); House Un-American Activities Committee Conservatism, 124 Contempt of court sentences, 22–23, 33–34 Cooper Institute, 60–61, 65 Corrosion of Character, The (Sennett), 129 Cort, Sue, 102 Counterculture, 24, 31, 40, 44–45 Courtnall, Ann, 100 Cover, Robert, 23


Index Cox, Dorlores, 97 Cox, Sarah, 91–92, 94–98, 110–11 Crawford, Michelle, 181–82 Crimes against humanity, 15, 25, 37–40, 45, 215–31. See also Holocaust Critical race theory, 11 Crucifixion, 40–41 Cuddihy, John Murray, 26, 43 Dachau, 221. See also Holocaust Danneker report, 219 Darnard, Joseph, 215, 230n. 20 David and Goliath, biblical tale of, 44 Davis, Rennie, 21–22 Death penalty, 2, 55–58, 65, 71, 74, 215 Decentralization, 152 Declaration of Independence, 32 Deconstruction, 138 Dellinger, David, 21, 38, 50n. 62 Democracy: and the Chicago conspiracy trial, 22, 28, 31, 45; and labor’s subjects, 126, 170, 173, 176, 183 Democratic Party, 21, 31 Dent, Tamara, 85, 91, 112 Department of Justice, 21 Department of Labor, 85 Department of Social Services, 85, 94, 96–97, 110 Dependency, 13–14, 127; fighting, 111–15; as a legal construct, 105–11; and welfare law, 87, 99–115, 117n. 10 Deservingness, principle of, 83–84, 87 Dickinson, Anna, 59–60 Disabled individuals, 2, 119n. 30, 160–63, 165–66, 179 Doctorow, E. L., 37 Domestic labor, 2, 123–213 Double consciousness, 114, 121n. 43 Double standards, 59, 62–75 Douglas, Lawrence, 1–20 DuBois, Ellen, 56 Du Bois, W. E. B., 114

237 Economic class, 13–14, 44; and the Hester Vaughn trial, 56, 65–66, 68, 71, 78n. 12; and labor’s subjects, 125, 137, 142–46, 149, 157, 160–68, 175, 180; and welfare law, 93, 102 Economic Policy Institute, 154–55 Economy, industrial, transition to, 126–27, 149 Education, 140, 167; of lawyers, 2, 7; and welfare law, 87, 97, 101, 103, 110, 114–16 EEOC v. Sears, Roebuck & Co., 135 Egri, Krista, 100, 103–4 Egypt, 45 Eichmann, Adolph, 37–38. See also Eichmann trial Eichmann in Jerusalem (Arendt), 37–38 Eichmann trial, 15, 25, 37–40, 45 Eisenhower, Dwight D., 27, 32, 36 EITC (Earned Income Tax Credit), 207n. 220 Empathy, 6, 112 Employment: discrimination law, 126, 134–36, 159; full, ensuring, 167–83. See also Labor; Unemployment; Work Employment Non-Discrimination Act, 159 Empowerment, 13, 131, 171–74 Enemy, notion of, 36, 44 Engel, David, 2, 3 England, 64, 75, 78n. 12, 216–17 England, Paula, 132 Epstein, Jason, 34–35 Equality: and American-Jewish identity, 23–24; and the Chicago conspiracy trial, 23–25, 26, 34; and labor’s subjects, 124–26 ERA (Equal Rights Amendment), 180 Ethics, 6, 12, 14, 98, 107. See also Morality Fair Labor Standards Act, 178 Falco, Robert, 216, 217


238 Family and Medical Leave Act (FMLA), 163 Fascism, 40 Father figures, 36 Faure, Edgar, 217–19, 226 FBI (Federal Bureau of Investigation), 22 Federation of the Jewish Society of France, 226 Feinman, Jay M., 19n. 60 Feldberg, Roslyn, 176 Feminism, 11, 14; and the Hester Vaughn trial, 55–81; and labor’s subjects, 124, 135–49, 166, 168, 176. See also Women Ferree, Myra M., 142, 180 Festival of Light, 31 Fineman, Martha, 143 First Amendment, 50n. 46 FMLA. See Family and Medical Leave Act (FMLA) Foran, Thomas, 39 Formalism, 16n. 9, 155 “Fortress mentality,” 94, 96 Foucault, Michel, 11 Founding Fathers, 23 France, 145, 215–31 Frank, Jerome, 29 Fraser, Nancy, 146–47, 177, 197n. 108 Free agency, 9 Freedman, Monroe, 8 Freedom, 127, 152 Freeman, Richard, 173 Friedan, Betty, 201n. 165 Froines, John, 46n. 3 Gabel, Peter, 19n. 60 Gans, Herbert, 84, 86 Garry, Charles R., 30 Gays. See Homosexuality Geary, John White, 68, 71, 74–75 Geertz, Clifford, 3–4 Gender: gap, in pay, 133; and labor’s subjects, 124–213. See also Women General Motors, 153

Index Germany, 179. See also Gestapo; Holocaust; Nazism Gerson, Kathleen, 177–78 Gestapo, 38, 222, 223. See also Nazism; Vichy government Giddens, Anthony, 114 Gilliom, John, 105–6, 119n. 24 Ginsberg, Allen, 40 Giscard d’Estaing, Valéry, 224 Glenn, Evelyn, 176 Global economy, 149, 170 God, 95 Godkin, E. L., 72, 73 Gompers, Samuel, 127 Gordon, Linda, 67, 147–48 Gordon, Sarah Barringer, 12–14, 55–81 Graham, Laurie, 152–53 Great Conspiracy Trial, The (Epstein), 34–35 Great Society, 21 Greeley, Horace, 72–73 Greenbaum, Eleanor, 27 Greenhouse, Carol, 2–3 Grossberg, Amy, 63 Guerrilla theater, 33 Guthrie, Arlo, 40 Harassment in the workplace, 135, 160, 171, 177, 179 Harrison, Bennett, 151–52 Hartmann, Heidi, 146, 171 Hartog, Hendrik, 3 Hayden, Tom, 21–22, 26, 32, 40 HEAP (emergency fuel assistance program), 102 Hebrew language, 23 Hegemony, 10, 222–23 Henriot, Phillippe, 223 Hertzberg, Arthur, 24–25, 26, 44 Hester Vaughn trial, 12–13, 55–81 Hilberg, Raul, 229n. 8 Hispanics, 27–29, 45, 90 Hitler, Adolf, 37, 38, 39, 220, 223 Hoffman, Abbie, 12, 22, 24, 30–41;


Index biography of, 30–31; founding of the Yippie movement by, 31; and Kunstler, first meeting of, 30; and the Rosenberg trial, 36–37; symbolic gestures made by, during his trial, 33–34, 36–39 Hoffman, Eleanor, 27 Hoffman, John, 30 Hoffman, Julius, 24, 31–34, 39–44; biography of, 27; contentment of, with the American system, 31–32; and Dellinger, 38; and the Eisenhower administration, 36; Epstein on, 34–35; Hayden’s description of, 26; Kunstler on, 28; reflections of, on the meaning of being a Jewish judge in America, 27–28; and the Seale incident, 44; vulnerabilities of, 36 Hoffman, William, 27 Holmes, Oliver Wendell, Jr., 1 Holocaust: and American-Jewish identity, 23, 25–26; and charges of collaboration, 37–39; and the Chicago conspiracy trial, 23, 25–26, 37–40, 44–45; and Christianity, 41; and the Eichmann trial, 15, 25–26, 37–40, 45; and the Seale incident, 44; and the Six Day War, 26. See also Humanity, crimes against Homosexuality, 23, 144, 159–60, 164 Homrighaus, Ruth, 64 Household domestic labor, 2, 123–213 House Un-American Activities Committee, 30 Housing Authority, 94 Human capital theory, 132–34, 138, 175 Humanity, crimes against, 15, 25, 37–40, 45, 215–31. See also Holocaust IBM (International Business Machines), 129, 157

239 Identity, 1, 12–15; American-Jewish, 12, 24–27, 34, 43–45; and the Chicago conspiracy trial, 21, 24–27, 34, 43–45; conventional conceptions of, challenges to, 21; and the Hester Vaughn trial, 67, 71; and labor’s subjects, 129–32, 148, 164–67; moral, and welfare law, 84–116; politics, 164–67; redefinition of, 21. See also Subject(s) IG Metall, 179 Immigration, 23, 182 Imperialism, 45 Independence, capacity for, 126, 127 Industrial economy, transition to, 126–27, 149 Infanticide, 12–13, 55–81 Insanity defense, 13, 57–62, 69–70, 72 Israel, 23, 25–26, 40, 44–45 Italy, 217 Izieu, children of, 218–20, 229n. 10 Jackson, Jesse, 40 Jacobs, Jerry, 177–78 James, Jackie, 92, 94–96, 109–10 Jesus Christ, 40–42. See also Christianity Jews: accusations against, of murdering Christ, 40–41; and the Chicago conspiracy trial, 12, 23–54; and otherness, 27, 42; and trials for crimes against humanity, 15, 25, 37–40, 45, 215–31; yellow star symbolizing, 34, 39. See also Holocaust; Humanity, crimes against Job segregation, 133–35, 147, 156 Johnson, Lyndon B., 25 Justice, 8–10, 12, 125; and the Chicago conspiracy trial, 33; and crimes against humanity, 227–28; and the Hester Vaughn trial, 56–57, 69–70, 72, 76 Justice Department, 21 Kaczinski, Ted, 8


240 Kalish, Donald, 39 Kanter, Rosabeth Moss, 129–30 Katz, Michael, 113 Kaufman, Irving R., 37 Kerner Commission, 159 King, Martin Luther, Jr., 22 Kirk, Eleanor, 60–61 Klarsfeld, Arno, 226, 231n. 27 Klarsfeld, Serge, 224 Kronman, Anthony, 4–7, 12–14 Kunstler, William Moses, 12, 24, 32–33, 41–44; autobiography of, 28–30, 41–42; and the Rosenberg trial, 35, 36–37 Labor: domestic, 2, 123–213; freedom of, 127; subjects of, 124–213; unions, 163, 168, 179. See also Employment; Work Labor Department, 85 Lahav, Pnina, 12, 14, 21–54 Laissez-faire ideology, 127 Lawyer(s): cause, 29–30, 35; education of, 2, 7; good, Luban’s theory of the, 9; number of, in the United States, 2; people’s, ideal of, 17n. 31; -statesman, ideal of, 5–7, 15 League of the Rights of Man, 223 Leary, Timothy, 40 LeFevre, Mike, 169 Legal culture, 3–4 Legality, culture of, 3–4 Legislation. See ADA (Americans with Disabilities Act); Age Discrimination in Employment Act; Civil Rights Act of 1964; Employment Non-Discrimination Act; Fair Labor Standards Act; Family and Medical Leave Act (FMLA) Le Monde, 227 Lesbians. See Homosexuality Lewis, Claire, 99–101, 104 Liberalism, 7–15; and the Hester Vaughn trial, 55–56, 58, 73, 76; and labor’s subjects, 124, 168

Index Life stories. See Narratives Lincoln, Abraham, 32 “Living greatly,” notion of, 4 Llewellyn, Karl, 5 Logic, 1, 15 Lost Lawyer: Failing Ideals of the Legal Profession, The (Kronman), 4–5 Lozier, Clemence, 61–62 Luban, David, 9 Ludlow, James, 55, 57, 65, 77n. 3 Lukas, J. Anthony, 21 MacKinnon, Catharine, 11 Mahoney, Rhona, 143 Mailer, Norman, 40 Malcolm X, 25. See also Black power movement Mania. See Insanity defense Mansbridge, Jane, 180 Marx, Karl, 129 Mauthausen, 221 McCarney, Kathleen, 142 McCurtis, Mary, 100, 102–4 McVeigh, Timothy, 8 Melting pot, theory of, 45 Memory, collective, 37, 39, 218, 224 Men and Women of the Corporation (Kanter), 129–30 Menthon, François de, 218 Mercy, 72 Middle East, 23–26, 44–45 Milkman, Ruth, 152–53 Mills, John Stuart, 10 Mitterand, François, 224, 229n. 10 MOBE (Mobilization Committee to End the War in Vietnam), 21–22 Morality, 15, 129; and the Hester Vaughn trial, 73; and welfare law, 84–116, 118n. 15. See also Ethics “Movement law,” 33 Moyamensing Prison, 55, 61, 68, 75 Munger, Frank, 2–3, 13–14, 83– 121 My Life as a Radical Lawyer (Kunstler), 28–30


Index Narratives, 1–3, 28–30, 86–116 Nation, The, 72 Native Americans, 23–24 Nazism: and the Chicago conspiracy trial, 29, 38–39, 40; portrayal of, in the film The Remains of the Day, 130; and trials for crimes against humanity, 218–27; Vichy regime of, 15, 220–27. See also Holocaust Neocolonialism, 45 Neutrality, 11 New Deal, 23 New Left, 25, 26 Newman, Katherine, 163 New York Times, 22, 73 New York Tribune, 72–74 New York World, 61, 68, 75, 80n. 40 Nixon, Richard M., 21, 26, 48n. 30 “Nomos and Narrative” (Cover), 23 Northwestern University, 27, 32 Nuremberg trials, 216–22. See also Holocaust; Humanity, crimes against Ogier, Huber, 221 Ontology of law, 4, 6, 123 Ordeal of Civility, The (Cuddihy), 26, 43 Osterman, Paul, 154 Otherness, 27, 42 Pacifism, 21–22 Palestinians, 26, 45. See also ArabIsraeli conflict Papon, Maurice, 15. See also Papon trial Papon trial, 15, 215–31 Particularism, 23 Passover, 27 Pateman, Carole, 158 Patriarchy, 127, 136 Peoples Park, 33 Perry Housing project, 85, 91–98, 107–9, 111–14

241 Personhood, conceptions of, 9–10. See also Identity; Subject(s) Pétain, Marshal, 214 Peter, Paul, and Mary (folk music trio), 182 Phelps, Edmund, 170–71 Philadelphia Inquirer, 63 Phillips, Deborah, 142 PIC (Private Industry Council), 85, 99–108, 110–11 Pillsbury, Parker, 65–66, 70 Poirot-Delpech, Bertrand, 227 Poliakov, Léon, 217 Police officers, 2, 22, 92, 113 Pompidou, George, 222, 230n. 19 Pornography, 11 Postmodernism, 11 Poverty: efforts to end, 83; and the Hester Vaughn trial, 59. See also Class; Welfare law Pregnancy: and the Hester Vaughn trial, 55, 58–60, 64–75; and the welfare system, 95, 97 Productionist models, 174–77 Project Dandelion, 85, 91, 93, 112 Racism, 11, 171; and the Chicago conspiracy trial, 24–26, 43; and crimes against humanity, 218. See also African Americans Rage. See Anger Rape, 13, 57–62, 69, 72, 73 Rationality, 175 Realism, 83–84 Reductionism, 139 Remains of the Day, The (film), 130 Republican Party, 21, 32 Resistance, duty of, 40, 221, 223 Responsibility: and crimes against humanity, 226–27; and the Hester Vaughn trial, 58; and labor’s subjects, 169; and welfare law, 83–84, 89, 91, 98 Revolution (newspaper), 59–60, 65, 67–68, 71, 74–75


242 Revolution for the Hell of It (Hoffman), 38 Rights revolution, 2, 13 Rivers, Caryl, 141–42 Robeson, Paul, 183 Rogers, Joel, 173 Roosevelt, Franklin D., 26, 28 Rose, Ernestine, 71 Rosenberg, Julius and Ethel, 36, 51n. 71. See also Rosenberg trial Rosenberg trial, 29, 35–37, 45, 51n. 71 Rubin, Jerry, 21–24, 30–34; and Hitler, 38; symbolic acts made by, during his trial, 33–34, 37–39 Sarat, Austin, 1–20, 123 Sartre, Paul, 42 Scarr, Sandra, 142 Schneersohn, Isaac, 217 Schultz, Richard, 24, 47n. 14 Schultz, Vicki, 14, 123–213 Schwartz, Helene E., 26, 47n. 16, 48n. 48 Scientific management, 185 Scopes trial, 33 SDS (Students for a Democratic Society), 22 Seale, Bobby, 22, 30, 44 Seeger, Pete, 40, 183 Self-esteem: and labor’s subjects, 129, 161–62; and the welfare system, 91, 98–100, 103–5, 111. See also Identity; Subject(s) Sen, Amartya, 129 Sennett, Richard, 14, 129, 151, 156–57 Sexual harassment, 135, 179. See also Harassment, in the workplace Sexuality, 60, 70, 136, 179 She Works, He Works (Barnett and Rivers), 141–42 Sickles, Daniel E., 68, 70 SIDS (sudden infant death syndrome), 62 Significance, webs of, 3–4 Six Day War, 24, 26, 44–45

Index “Small is beautiful” rubric, 152 Smith, Adam, 129 Smith, Susan, 63 SNCC (Student Nonviolent Coordinating Committee), 35 Socialization, 125, 132 Social Security, 4 Solomon, Rose, 63 Soviet Union, 25, 217 SSI (Supplemental Security Income), 85 Stack, Carol, 120n. 34 “Stakeholder society,” 158 Stanton, Elizabeth Cady, 59–60, 67–71, 75–76 Statesman, concept of, 5–7, 15 Stereotypes, 44, 84, 89, 135, 138–39, 149 Sternlicht, Artie, 37 Stribling, Dave, 174 Sturm, Susan, 172 Styron, William, 40 Subaru-Isuzu, 152 Subject(s): of labor, 123–213; legal, theory of, 9–10; and liberalism, 11. See also Identity Suffrage movement, 13, 55–81. See also Feminism; Women Swedish Ministry of Labor, 147 Taylorism, 175, 180 Temporary Assistance to Needy Families Block Grant, 87 Terkel, Studs, 131 Theory and practice, gap between, 34 Title VII, 159 Tocqueville, Alexis de, 3 Tokenism, 150 Tomkins, Khala, 99–104, 114 Totalitarianism, 39 Touvier, Paul, 216, 220–24, 227–28 Travers, Mary, 182–83 Trial, The (Hayden), 26 Truche, Pierre, 221–23


Index Ukraine, 30 Umphrey, Martha, 1–20, 123 Unemployment: and labor’s subjects, 128, 159, 168, 179; and welfare law, 85, 100. See also Employment Unions, 163, 168, 179 Universalism, 23 University of California, Berkeley, 30 University of New Hampshire, 142 University of Virginia, 142 Utopianism, 14, 127, 146, 179 Vaughn, Hester, 12–13, 55–81 Vichy government, 15, 220–27 Vietnam War, 21–22, 24–25 Village Voice, 35 Virtue: of character, and civic virtue, 5, 6, 7; marital, and the Hester Vaughn trial, 74; of practical wisdom, 5, 6 Walker Commission, 22 Washington, George, 32 War crimes, 15, 25, 37–40, 45, 215–31. See also Holocaust Watson, Nora, 173 We Are Everywhere (Rubin), 21 Weiner, Lee, 24, 46n. 3 Weinglass, Leonard, 24, 36, 53n. 83 Welfare law, 2, 83–121, 145–48, 161–63, 176 White, Lucie, 201n. 161 Wieviorka, Annette, 14–15, 215–31 Wigmore, John H., 27 Williams, Joan, 191n. 59 Williams, Patricia, 2 Wilson, Elizabeth, 58

243 Wilson, William Julius, 109, 128, 159, 181 Wisdom, practical, 5–6 Women: and American-Jewish legal scholars, 23; domestication of, 131–49; and the Hester Vaughn trial, 55–81; and labor’s subjects, 124–213; and welfare law, 83–121. See also Feminism; Gender Women’s Public Policy Institute, 146 Woodstock Festival, 33 Work: as a common foundation, 164–68; conditions, cultivating empowering, 171–74; ethic, 98, 107; harassment in the workplace, 135, 160, 171, 177, 179; and labor’s subjects, 124–213; repositioning, as a cornerstone for family and civic life, 174–83; roles, adaptation to, 130; week, reducing the standard full-time, 14, 178. See also Employment; Labor Worker, notion of, 166, 175 Workfare, 89 Working Women’s Association, 56, 60–61, 72, 76 Workman, Rosalyn, 91 World War II, 13, 25–26, 29, 214. See also Holocaust; Vichy government Yale University, 29 Yippie movement, 21, 22, 24, 31 Yngvesson, Barbara, 19n. 60 Zaoui, Michel, 226–27 Zavella, Patricia, 198n. 121 Zionism, 23. See also Jews

Lives in the Law (The Amherst Series in Law, Jurisprudence, and Social Thought)

The Place of Law (The Amherst Series in Law, Jurisprudence, and Social Thought)

Natural Law in Jurisprudence and Politics

Social Rights Jurisprudence: Emerging Trends in International and Comparative Law

Theories on Law and Ageing: The Jurisprudence of Elder Law

The Cheyenne way: conflict and case law in primitive jurisprudence

The Unity of the Common Law: Studies in Hegelian Jurisprudence

Our Lives Before the Law

Our Lives Before the Law

The Brother-In-Law

The Daughter-in-Law

The Daughter-in-Law

The Europeanisation of Law (European Law Series)

Cavendish: Jurisprudence Lawcards (Law Cards)

Law and Social Norms

Law and Social Norms

Evidence in History and in the Law

Law and the Social Sciences in the Second Half Century

Law and Administration (Law in Context)

Politics, Law, and Community in Islamic Thought: The Taymiyyan Moment

Law and Economics in Civil Law Countries

After Secular Law (The Cultural Lives of Law)

After Secular Law (The Cultural Lives of Law)

Democracy, Human Rights and Law in Islamic Thought (Comtemporary Arab Sclarship in the Social Sciences)

The Arms Trade and International Law (Studies in International Law)

Atiyah's Accidents, Compensation and the Law (Law in Context)

The Virtuous Daughter-In-Law

The Ideal Element in Law

The Seductive Sister-In-Law

The Devil's Mother-in-Law

Law in Crisis: The Ecstatic Subject of Natural Disaster (The Cultural Lives of Law)

Lives in the Law (The Amherst Series in Law, Jurisprudence, and Social Thought)

The Place of Law (The Amherst Series in Law, Jurisprudence, and Social Thought)

Natural Law in Jurisprudence and Politics

Social Rights Jurisprudence: Emerging Trends in International and Comparative Law

Theories on Law and Ageing: The Jurisprudence of Elder Law

The Cheyenne way: conflict and case law in primitive jurisprudence

The Unity of the Common Law: Studies in Hegelian Jurisprudence

Our Lives Before the Law

Our Lives Before the Law

The Brother-In-Law

The Daughter-in-Law

The Daughter-in-Law

The Europeanisation of Law (European Law Series)

Cavendish: Jurisprudence Lawcards (Law Cards)

Law and Social Norms

Law and Social Norms

Evidence in History and in the Law

Law and the Social Sciences in the Second Half Century

Law and Administration (Law in Context)

Politics, Law, and Community in Islamic Thought: The Taymiyyan Moment

Law and Economics in Civil Law Countries

After Secular Law (The Cultural Lives of Law)

After Secular Law (The Cultural Lives of Law)

Democracy, Human Rights and Law in Islamic Thought (Comtemporary Arab Sclarship in the Social Sciences)

The Arms Trade and International Law (Studies in International Law)

Atiyah's Accidents, Compensation and the Law (Law in Context)

The Virtuous Daughter-In-Law

The Ideal Element in Law

The Seductive Sister-In-Law

The Devil's Mother-in-Law

Law in Crisis: The Ecstatic Subject of Natural Disaster (The Cultural Lives of Law)

Recommend Documents