Material Law: A Jurisprudence of What's Real

M ATERIAL L AW

M ATERIAL L AW A Jurisprudence of What’s Real

? John Brigham

T E M PL E U N I V E R S I T Y PR E S S

Philadelphia

TEMPLE UNIVERSITY PRESS 1601 North Broad Street Philadelphia PA 19122 www.temple.edu/tempress Copyright © 2009 by Temple University All rights reserved Published 2009 Printed in the United States of America The paper used in this publication meets the requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992 Library of Congress Cataloging-in-Publication Data Brigham, John, 1945– Material law : a jurisprudence of what’s real / John Brigham. p. cm. Includes bibliographical references and index. ISBN 978-1-59213-964-4 (hardcover : alk. paper) 1. Law—United States. 2. Law—Philosophy. I. Title. KF389.B75 2009 349.73—dc22 2008048661 2 4 6 8 9 7 5 3 1

C ONTENTS

Preface Acknowledgments

vii xvii PART I Theorizing Material Life

1 The Map and the Territory 2 The Public in the Womb 3 Habeas Corpus at the Temple

5 24 48

PART II Constituting Legal Spaces

4 Law’s Neighborhoods 5 De Facto Discrimination and the Double Standard 6 Occupied Territories

77 100 118

PART III Materializing Law

7 Law Buildings 8 Commodity Form as Law 9 Global Legal Constructs

145 168

Index

215

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raditionally, when law meets politics, we perceive politics as outside and acting upon law. Political interests are directed at governing institutions such as courts or legislatures. For example, pro-life activists want to overturn the Supreme Court decision in Roe v. Wade, and environmentalists work on Congress to pass or preserve legislation such as the Endangered Species Act. To traditional scholars, the relationship is instrumental. They are locked into the fact that politics turns to institutions to get legal outcomes. The tradition also assumes that political and social life can be separated from legal life, that there is law “on the books” that may (or may not) appear “in society.” The separation of political and social life from law is evident in the conjoined realms by which the Law and Society movement identifies itself. My argument in The Constitution of Interests offered an alternative to this traditional picture of law.1 In that book, I sought to heighten perception of law in public life. The book posited a presence for law in the practices of social and political movements. It argued that convention and traditional social research proceeds from the untenable assumption that politics begins outside law. 1. With reference to use of “law” and “the law” in the singular, “Law is not and never has been a unitary phenomenon, even though the assumption that it is, has played a central role in most legal discourses and theories of law. . . . [L]aw is a complex of practices, discourses and institutions. Over this plurality of legal forms ‘state law’ persistently, but never with complete success, seeks to impose a unity.” Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance (London: Pluto Press, 1994), 39.

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The Constitution of Interests focused on movement politics that grew from legal ideas and practices. The work is part of a vibrant body of scholarship that offers an alternative to traditional and instrumental views of law. I called this alternative a constitutive approach or perspective, but the terminology is not settled. Scholars working from this perspective are finding their own language and developing institutional forms. We trace our lineage to inf luences such as the work in philosophy of Ludwig Wittgenstein, the work in rhetoric of Kenneth Burke, and the work in sociology of Joseph Gusfield. 2 Current expressions range from the social movement studies of Michael McCann and Helena Silverstein to the sociological jurisprudence of Patricia Ewick, Susan Silbey, Austin Sarat, Mariana Valverde, and Eve Darian-Smith. This book works within and seeks to contribute to that perspective. 3 Here, in Material Law, places and things rather than social movements become central. These are places like northern New Mexico, where the Spanish presence is prominent and contests the law, and things as varied as court buildings and Jell-O. Through buildings, we learn what to expect and how to act before the law. With Jell-O, at least at the hands of Marjorie Garber, we learn about an ordinary dessert that influenced the capital prosecution of Julius and Ethel Rosenberg.4 In Material Law, places and things are fashioned by law. Law is shown to be part of the process by which people construct all sorts of things. Law shares space with religion, the family, and expertise as a force in the construction process. 5 This process, as described in the chapters that follow, directs attention to the constitutive dimension of law. The book is about law as a force, a form of authority, and the examples that follow describe law in places where it is traditionally ignored. 2. See Hannah Pitkin, Wittgenstein and Justice (Berkeley and Los Angeles: University of California Press, 1972, 1992); Kenneth Burke, The Philosophy of Literary Form (1941; 3rd ed., 1974), Permanence and Change: An Anatomy of Purpose (1935; rev. ed., 1959), A Grammar of Motives (1945), and Language as Symbolic Action (1966); Joseph Gusfield, Symbolic Crusade: Status Politics and the American Temperance Movement (Champaign: University of Illinois Press, 1986). 3. Michael McCann, Rights at Work (Chicago: University of Chicago Press, 1994); Helena Silverstein, Unleashing Rights (Ann Arbor: University of Michigan, 1996); Patricia Ewick and Susan Silbey, The Common Place of Law (Chicago: University of Chicago Press, 1998); Mariana Valverde, Diseases of the Will (Cambridge: Cambridge University Press, 1998); Eve Darian-Smith, Bridging Divides: The Channel Tunnel and English Legal Identity in the New Europe (Berkeley and Los Angeles: University of California Press, 1999). 4. Marjorie Garber and Rebecca L. Walkowitz, Secret Agent: The Rosenberg Case, McCarthyism and Fifties America (New York: Routledge, 1995). 5. All these realms contributed to the mélange of identity politics in the 2008 presidential election in the United States where the age of John McCain, the race of Barack Obama, and the gender of Sarah Palin added new dimensions to the contest.

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Other forces, like religion and technology interact with law to constitute material life. Religion is influential in the case of abortion, and like law it works on a material as well as an ideal level. This will be developed in Chapter 2. Kristin Luker, in her book Abortion and the Politics of Motherhood,6 described how Catholic women felt threatened after the Supreme Court decided Roe v. Wade. Material Law describes the fetus emerging as a new figure in politics. Justice Harry Blackmun’s tortured description of fetal life is part of the law on abortion that ultimately produced activists like 2008 Republican vice presidential candidate Sarah Palin. The chapter focuses on the development of amniocentesis, a form of prenatal diagnosis that tests the chromosomes in the amniotic fluid during pregnancy. Law affects the availability of money for prenatal diagnosis research. And, in the case of abortion, law and technology interact with religion to determine what it means to be human. In some places, or sites, the law is constitutive in that it defines the space for politics. This is the case with homelessness. By definition, homelessness is a condition based on lack of property. Not having a place to sleep or eat or raise a family is essentially a legal issue. It may become a political issue. But always, the deprivation that is the meaning of homelessness is as real as the effect of the cold and of darkness on those who try and survive without a home. Sites such as these are the material of this book’s subtitle, The Jurisprudence of What’s Real. The Anglo-American character also identified in the subtitle operates at a different level. My supposition is that the relationship between law and material life is influenced by the cultural dynamic contained in the language and traditions that came from England and have spread throughout the world. The focus on places, rather than politics; and things, rather than groups, addresses the positivism that is the core element of Anglo-American jurisprudence. This is the law of what Alicia Rampulla helped me to think of as Anglo-Saxon democracies.7 People from the United States, like the English, the Australians, the Canadians, the Jamaicans and the Indians, have divided the world into facts and values, things and ideas, the real and the imagined. The puzzle of this dualism goes back further than the English, and manifests itself in other cultures as well. But in the English tradition, that dualism is woven into the structure of government and the authority of the state. In the Anglo-American tradition, which emerged so fully in the Enlightenment, a scientific paradigm transcends the old mysteries of divinity and aristocracy. 6. Kristin Luker, Abortion and the Politics of Motherhood (Berkeley and Los Angeles: University of California Press, 1985). 7. Dissertation submitted to the graduate school, University of Massachusetts, Amherst, May 2005.

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Things are treated as outside the law, and it is common in the United States to turn our attention away from the processes by which material things come into being. In this project, state law is a central concern. The focus here is not meant to disparage other normative orders: the religious, the professional, or the customary. Material Law simply emerges from my interest in the authority of state law. This is an important topic even where there are other normative orders. Some of these other authorities might even take legal form. Here, a hierarchy of normative order is presumed, and plurality is not presented as an equal-opportunity alternative to state law. It is state law that takes the form, in Ronald Dworkin’s words, of “Empire,” and it is with reference to state law that we need to understand the juridical practices in Michael Hardt and Antonio Negri’s Empire.8 Both refer to the sort of “ultimate” authority we associate with the state. Both projects, one advocating and one offering a critique, are related. Empire in both senses depicts state law and not religion or even politics as the focus of control over human relations. While this treatment moves from state law constituting movement politics to material things constituted by law, the process is sometimes incomplete. This seems to be the case in New Mexico and Puerto Rico. Here, the constitutive perspective highlights law’s failures. In other instances, the success of law in constituting how citizens understand the world may not be all that attractive. The book considers how law has been judged “innocent” in many contemporary discriminations of white over black by examining the de facto justification for segregation in the United States. I also press a bit deeper to examine the concept of commodities where law struggles to control our belief in markets through the homology of form. And, in the architecture of courts there is more than a perfunctory nod to justice; but in the material constraints and architectural practices, there is clearly “push back” that ultimately determines what constitutes reality. Finally, in globalization, the last chapter considers whether the law of states has lost its nerve in the face of the imperial legal form. In all of this, law’s form will be distinguished from particular laws. It is not so hard to see the effect of particular laws. For instance, the laws requiring alternate-side-of-the-street parking in cities like New York can move the cars from one side of the street to the other on days when they are in effect. A license to provide sidewalk dining can dramatically change the fortunes of some restaurants in warmer months. Understanding law’s abstract force in 8. Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986); Michael Hardt and Antonio Negri, Empire (Cambridge, MA: Harvard University Press, 2000).

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society as a material manifestation is much harder. Seeing law in the nature of material things and the material in the nature of law is the challenge. Going beyond the parking rules, this perspective gives meaning to less obviously legally constituted things like the kiosks or newsstands on the streets of New York City. These were provided for by statute in the hopes that the social life they facilitated would cut down on crime in the streets.9 To the extent that they work, the street scene is partly a legal one. Law provides for citizenship for anyone born in the United States. “Birthright citizenship” is a remarkable artifact of an earlier time when the physical act of giving birth was more important than documents delineating citizenship. As administered by a myriad of particular interpretations and statutes, the dramatic and physical act of giving birth comes to have legal meaning, constituting the child in ways that make him or her different from those who are not citizens. In this case the noncitizens may be parents. It turns out that a child born while a plane is still sitting on the runway is not entitled to birthright citizenship. The mother has to have gone through customs in order to be considered to have given birth in the United States.10 Similarly, noncitizens traveling by boat are not entitled to the rights of “persons” in the United States until they reach the shore.11 You cannot see these legal relations very often. Sometimes, you may catch the immigration officials wrestling with noncitizens trying to reach the beach.12 The difference is also evident as the lines of people getting off a plane divide according to citizenship status. Because law does not essentially alter the physical character of a person, it is often not seen as constituting the person. But citizenship matters and is not only an inward state. It changes material conditions, and those include access to markets and medicine, culture and climate. They amount to a context different enough to say the person is different. This volume attempts to show the relationship between law and material life by viewing the materiality produced by laws against a backdrop of positive epistemology. At every instance the perspective advocated here amplifies the ways people know their world in the interest of a better understanding 9. The law allows sales of items under $2 and newspapers. This is meant to help the stands survive the demise of newspapers. The initial law allowed the stands to be set up as a response to the needs of newsboys and as a way of adding a stable social force on the streets. The New York Times, April 5, 1997; see also the administrative law newspaper boy case. 10. Robert D. McFadden, “First Woman, Then Baby Make Landing at Kennedy,” The New York Times, December 6, 1998. 11. U.S. v. Alvarez-Machain (1992). 12. See picture of Cubans trying to reach the shore off Surfside, Florida, but being wrestled by Coast Guard agents. Taken by Nuri Vallbona, Miami Herald, via Associated Press, The New York Times, June 30, 1999.

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of law. Particular laws, like an “alternate-side parking” law or a boundary set at the customs window, while they have obvious material dimensions, are hard to generalize to law more broadly, much less to the nature of law. Yet, I want to argue that we should see the material dimensions of law. We should see the law in the kiosk and in the natural-born citizen, in the boundary between nations and in the boundary between city and suburb, and in a Supreme Court decision as well as in a traffic citation. We should be able to see law altering our reality. Unlike some of my colleagues, who can be epistemologically squeamish, I think of the subject here, the things law gives us, as “reality.” The project, which draws on now-familiar language, can be called the social or legal construction of reality. My inclination to speak of reality emphasizes that many of the things we take as real have resulted from social processes and legal constructions. Talk of reality is meant to challenge a lingering positivism that I associate with kindred spirits in the law and literature movement. The tendency to divide the world rigidly between facts and values is especially problematic when participants speak of law as fiction or literature and emphasize qualities like interpretation and imagination as sufficient considerations for understanding the social world.13 At the risk of landing on the other pole of the positivist divide (the “fact” or “thing” pole), I tend to emphasize the constructive aspects of law whether they are rhetorical, sociological, or material. The result develops this way of seeing law in things and things in law. In the other book, I wrote of law entering into politics to set agendas and influence strategies. Often, this influence was before participants become aware that law mattered. I hoped to establish that law came before we thought it did, that it emerged earlier in the processes of social and political life than is conventionally acknowledged by the way we use the language. Mark Tushnet, in reviewing The Constitution of Interests, said that my treatment had sketched, or “merely sketched” the constitutive force of law.14 I do not suppose that the book did do much more than that. The present volume is meant to add something to the picture of constitutive law. The approach complements the earlier treatment. I have tried to develop this sketch along the earlier lines, but the subject is a little different. While politics is inherently fluid, things are just the opposite. Thus, with the focus on things, I hope to add a more concrete dimension to the role played by 13. James Boyd White, The Legal Imagination (Chicago: University of Chicago Press, 1990); L. H. LaRue, Constitutional Law as Fiction (State College: Penn State Press, 1995). 14. Mark Tushnet, review of The Constitution of Interests, by John Brigham, American Political Science Review (Fall 1997): 961–962.

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law in our social life. Although this book is meant to advance the project and articulate a constitutive perspective, it still suggests a number of other research agendas.15 The additional contribution in the present volume involves the level of analysis and the scope of the inquiry. That is, with reference to materiality, I have tried to penetrate even further beneath popular conceptions of how law functions. Law is present at the creation of things like races, neighborhoods, executions, diagnostic technologies, buildings, and global markets. Since these things often seem to exist prior to the emergence of political factors (and to constitute them), the suggestion is that we need to seek greater depth in the analysis of politics and social life. But, this research also aspires to extend the reach of constitutive law, so it might include things like a building or a medical technology that, unlike a political party or a judicial opinion, does not so readily call to mind law in its genesis. Material Law pays some attention to the issue of partiality in the matter of legal constitutions.16 The legal constitution of social life is partial in the sense that law is only one of the forces that determine who we are. The point made in the earlier book was that the constitutive deserved attention because it had been almost totally absent from discussions of law. This is true even where it is only part of the story. In the present volume, the partial role of constitutive law is acknowledged here, and attention is drawn to what law does when it mixes with life. In amplifying this aspect of law, this treatment calls up the idea of “social facts” about which there has been some debate in the political study of constitutional law.17 Specifically, in the case of prenatal diagnosis, technological developments were driven by scientific knowledge and social needs. Amniocentesis depended on sound wave images and genetic analysis. Law (and politics) entered into that mix and altered its implications. Because politics is fluid, a more complete picture of legal constitutions inscribed by law is needed to capture its influence. Materiality is the opposite. We do not expect things to be fluid. While the social constructivist paradigm serves to break things up a bit, the constitutive perspective draws attention to law as a force in the construction of material life. 15. One of these is the idea that the Anglo-American tradition is particularly positivistic and that the distinction between law and things is less manifest in the legal culture of Latin or Asian countries. 16. Partiality is meant here in a nontechnical sense that is somewhat different from what Cass Sunstein writes about in The Partial Constitution (Cambridge, MA: Harvard University Press, 1993). The politics of Sunstein’s approach is more prominent than mine. Here, the political dimension is primarily a matter of shifting authority over the meaning of law. 17. See Ron Kahn, ed., “The New Historical Institutionalism,” Law and Courts Newsletter (Spring 1999): 1–3.

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The book is divided into three parts: theorizing material life, constituting legal spaces, and materializing law. The parts draw the chapters together with attention to general themes relevant to the constitutive character of law. Part I: Theorizing Material Life (Chapter 1: The Map and the Territory; Chapter 2: The Public in the Womb; Chapter 3: Habeas Corpus at the Temple). Part II: Constituting Legal Spaces (Chapter 4: Law’s Neighborhoods; Chapter 5: De Facto Discrimination; Chapter 6: Occupied Territories). Part III: Materializing Law (Chapter 7: Law Buildings, Chapter 8: Commodity Form as Law, and Chapter 9: Global Legal Constructs). The first theme, Theorizing of material life, self-consciously lays a foundation for the enterprise by beginning with the ways material life has been examined, or theorized. From adolescent preoccupation with learning to distinguish the real from the ideal, in the notion that “the map is not the territory,” to more mature efforts to live in an epistemologically integrated world that finds the map complicitous in territoriality, “theorizing material life” is, necessarily, a life story. My personal narrative begins in high school near what is now Silicon Valley and ends in New England in an academic universe. From my personal saga outlining the constitutive perspective, the first part of the book moves to the materiality of the fetus in society and then to the relationship between capital punishment and the Supreme Court. Just as fetal life and the life of the condemned are linked in contemporary debates about the limits of state power, they also help to demonstrate what it means to bring a theoretical perspective to things. Where the fetus has redefined the initial point at which citizenship begins, the Supreme Court has sought to place itself at the pinnacle of politics with consequences it would like to avoid. In the second part of the book, the world is seen in terms of legally constituted spaces. Here, political struggles are more central. The chapters are drawn around situations in which the material expression of law has been at stake, neighborhoods or locales and their constitutional status. Under the rubric of legal construction, the chapters in this part address controversies over the relationship between law and politics, the emergence of an equalprotection doctrine, and the issues of citizenship in some special places ruled by the United States. In a place like the Lower East Side of Manhattan, politics seems to be rampant and checked only by the limits of the urban imagination. But, law is there. And, in constitutional acquiescence to de facto discrimination we find law where others have said it is not. In the last chapter, places like Puerto Rico, New Mexico, and Indian reservations are examined under a rubric supplied by James Baldwin when he called Harlem occupied

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territory. The result is a special sensitivity to the work law does in giving those who participate in the Anglo-American legal process what we take to be real.18 Finally, the last part develops Theme of law itself as material in court buildings, in commodities, and in an increasingly global culture. With a background in theory and a sense that law makes neighborhoods, it is a small step to bring the constituted terrain of courts to life. Consequently, the chapter also tries to add some insight to how courts function. This leads to form in law, the idea that the liberal form with its emphasis on the autonomous rights holder is a reflection of the autonomous actor in the marketplace. Finally, the analysis expands that marketplace and examines the newest assault on the power of law to control human behavior, the global economy. Here, the constitutive force of law is problematic, but the promise that law makes in an increasingly global world is a fitting conclusion to a study that seeks to illuminate the taken-for-granted. The three parts further integrate the sites into a larger theoretical project. The parts allow for exposition of different aspects of the relationship between law and material life, and each is preceded by a short introduction. The tension created by the parts provides a framework that bridges the distance between each chapter and the whole. Of course, the chapters do not fit completely within these parts, and each is also meant to contribute to the whole. The first chapter is a beginning and an overview for the whole work, although it lays important theoretical groundwork. The discussion of materiality in Chapters 4, 5, and 6 is the most politicized, although this is a theme driving the whole work. The globalization discussion aims to reflect on what has come before, and like the work on court architecture and commodity form, these issues are more self-conscious examples of the processes of construction, the materialization of the law. Throughout the book, the chapters have also been arranged to present the constitutive character of law. I begin with maps and the background of this scholarship. Maps appear to be a pervasive image in legal scholarship at the moment. They link ideas and things in the most basic ways and bring the work to neighborhoods where law has not been seen. In the case of the Lower East Side of Manhattan, the social richness of the neighborhood and the wildness of its politics draw attention away from something as prosaic as law. This effort, which started as a collaboration with Diana Gordon, is to see law in places 18. Carol Greenhouse, “Ethnography and Democracy: Texts and Contexts in the United States in the 1990s,” in Cultural Analysis, Cultural Studies, and the Law, ed. Austin Sarat and Jonathan Simon (Durham, NC: Duke University Press, 2003), 191–219.

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where people act as well as in the identities they bring to politics. The next move is to what I call “occupied territory.” These are regions, like Puerto Rico or Indian reservations, where law and culture seem out of sync. Here, law in the constitutive sense is weak, and while all law is not constitutive, part of the weakness of law is in its failure to embed itself in the cultural fabric. Just as some aspects of law determine the political options evident in the forms of political actions chosen, in other respects the authority of law is dependent in cultural and often material ways. Discussing law’s reality in the area of constitutional equal protection draws attention to the important distinction between de facto and de jure discrimination. This construction places the natural or factual beyond the reach of law and applies constitutional protection only to that which is rather selfconsciously and expressively legal. The result is that a great deal of the racial segregation existing in the United States is beyond the reach of constitutional protection and considered beyond the reach of law. Both developments seem wrong. This chapter calls attention to the political significance of the legal reality constructed by the judiciary and the executive, and in doing so the book questions the mechanism by which reality becomes a justification for racial discrimination. When constitutional doctrine helps to transform the legal and the social to the natural, discrimination becomes difficult to see juristically. Towns and schools become a little like trees and dirt; they are seen as “simply there” rather than being constructed. The related discussion of legal bodies calls attention to the material absence of the people in law. Traditionally robed and in some English jurisdictions wigged, the bodies of those who dispense law are thought irrelevant to its working. They labor at the most prominent construction sites where human products must become transcendent mystery. Attention to goods is attention to stuff at the material level. The inquiry in Chapter 8 is into the way goods function in philosophical terms. This work, which was initially philosophical, led inevitably to economic theory and the dismal science. Interacting with the material and the ideal at a place essential to law is the architecture of courts. Courts are both highly symbolic and very real. Here, the use of marble is the characteristic construction material, and the discussion of court design and court architecture takes us to the actual processes of the construction site. Before people can build they must have been born, and birth is contested terrain these days. Finally, the global circles the territories in which we live and redefines our material world. Global issues are a place from which to visit the power of the scholarly image and work on the implications of current discourse. Academic contests at the level of global social science, over the reach and significance of the legal, reinstate some of the traditions of national lawmaking while challenging contemporary fashion statements about the conditions of life in the world being autonomous from law.

A CKNOWLEDGMENTS

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eminal expressions of the ideas that are developed here have appeared in print in different forms. “The Map and the Territory” was presented at the Tenth Roundtable on Law and Semiotics in Amherst, Massachusetts, April 20, 1996, and was published in States, Citizens, and Questions of Significance, edited by me and Roberta Kevelson, (Lang 1997). My thanks to Charles Venator-Santiago, Peter Goodrich, Linda Mills and the late Roberta Kevelson for providing support during that conference, and to Tyler Velten for suggesting that life at Menlo-Atherton High School may have ongoing significance. “Neighborhood Politics” builds on work done with Diana R. Gordon on the Lower East Side and published in Law and Social Inquiry 21, no. 2 (1996): 265–283. “Occupied Territories” was originally developed for the International Political Science Association Meeting in Santa Fe, New Mexico, during the summer of 1993, and a version focusing on identity formation was published in Social Identities: Journal for the Study of Race, Nation, and Culture 2, no. 2 (1996): 237–254. The discussion of the de facto/de jure distinction was first presented at the annual meeting of the American Political Science Association at a panel organized by Louis Fisher. A version of this argument was published in volume 8 of the Critic of Institutions Series, Horizons of Justice, edited by J. Ralph Lindgren and published by Peter Lang in 1996, pages 1–19. “Legal Bodies” was presented at a panel on “The Material in Law,” Law and Society Meetings, Chicago, Illinois, May 27, 1993, in an Honors Seminar on Legal Bodies at the University of Massachusetts, Amherst, in the spring of

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1993, and at presentations March 11, 1998, at Deakin University, Melbourne, and May 5, 1998, at Griffith University, Brisbane, Australia. “Legal Bodies” concerned the Amherst Seminar in its meetings from 1991 to 1993. The discussion of “goods” was prompted by a request from Christopher Gray for an entry in The Philosophy of Law: An Encyclopedia. My study of court architecture began when, for reasons having nothing to do with architecture, Christine Harrington and I named our son Atticus. Interest in the relationship between the Greek and vernacular American architecture flourished in response to a request from Oliver Mendelsohn at La Trobe University, Bundoora (Melbourne), Australia, for a piece on contemporary courts. The extraordinary job done on this work by Oliver Mendelsohn and the editors of the journal Law in Context (Special Issue on Courts, Tribunals and New Approaches to Justice, La Trobe University Press, 1994) led me to presentations in a number of different forums, including the Fifth Congress of the International Association for Semiotic Studies, which met in Berkeley in 1994; the Conference on Critical Epistemologies, Oñati, Spain, October 1994; the Summer Institute of the Law and Society Association meeting in Wellesley, Massachusetts, in the summer of 1995; and at the Courso de Verano as “Pensamiento Critico en los estudios socio-juridicos,” at the International Institute for the Sociology of Law in Oñati, also in July 1995. The earliest work represented here is on prenatal diagnosis. It was initially developed in 1978 with Janet Rifkin as an inquiry into materialism. It continued in an attempt to better understand the relationship between law, technology, and culture. One expression of my thinking in this area was published in 1992 as “Prenatal Diagnosis and Abortion Policy,” in the journal Politics and the Life Sciences. The process of publishing in a crossover journal with scholarly and professional links to the biological sciences taught me a great deal about how medicine patrolled its disciplinary boundaries. The published version of that work brought in Christine Solt, who was attending Harvard Law School at the time. Without her, this project would have continued to languish. In this discussion, “we” is an accurate reference to the collaborative process. Other research was begun in response to Themes of the Law and Society Meeting in Glasgow, Scotland, in the summer of 1996; for the second meeting of the Conference on Global Law and Social Science, which met at the Institute for Law and Society, New York University, in April of 1997; at a conference sponsored by the Economics Department at The New School to honor the work of David Gordon; and during a sabbatical in Australia at the Departments of Law and Legal Studies, La Trobe University, the Department of Criminology, University of Melbourne, and the Institute for

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Court Studies, University of Wollongong. That sojourn concluded in July of 1998. In addition to those mentioned above, I would like to thank the following colleagues, friends, and family for their help in putting this book together: Yakubu Azindow, Donna Dove, Beverly Labbee, Eric Einhorn, Sheldon Goldman, Laura Jensen, Larry Zacharias, Meg Mott, Laura Hatcher, Alan Gaitenby, Bill Rose, George Thomas, Rick Mohr, Martin Chanock, Chris Arup, Kathy Laster, Sarah Marusek, David Tait, Robert Tsai, Alison Young, Peter Rush, Peter Goodrich, Gary Wickham, Jo Goodie, Sharon Roach-Anleu, Susan Silbey, Sally Merry, Barbara Yngvesson, Ira Strauber, Mark Kessler, Austin Sarat, Amrita Basu, Barbara Perry, David O’Brien, and Christine. This book is dedicated to Peter, Shannon, and Atticus, the next generation. And to Macy who is in the next after that.

I T HEORIZING M ATERIAL L IFE

P ART I I NTRODUCTION

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aw, in places that derive their institutions from England, depends on a positive foundation. In jurisprudence, this foundation holds that law comes as commands from the sovereign rather than from nature. In this “occidental logic,”1 the positivism of science also plays a role by positing a world made up of facts on the one hand and values on the other. This positivism makes it hard to see the interconnectedness of law and things. Here, the ways we know things get mixed with the power of government. In “theorizing material life,” the chapters that follow attempt to make connections. We can, if we are careful, trace the influence of laws on the construction of a building (where it sits, how high it goes, how many fire escapes it has, etc.). In the Anglo-American tradition, we tend, however, not to see laws in the building or see law as the sort of thing that contributes to making buildings what they are. This part of the text also delineates what it means to see materiality and law as constitutive. It problematizes the positivist frame that sees law and culture as different spheres by showing how the material is constituted and contingent in both. The chapters placed in this part also theorize a sphere of politics that operates on the construction of reality. This politics is over the nature of modern law, and it emerges where law itself is contested, where issues like culture or class press on the agendas of law. This part of the book 1. Augustin Lao and Arturo Escobar at the Sociology Colloquium, University of Massachusetts, Amherst, November 3, 1999.

4

PART I

introduces the possibility of seeing the material world as things that are at least in part constituted or made by law. It is the initial foray into a comparative jurisprudential world that challenges the universalism in the claims made for “law’s empire.” The first chapter is somewhat autobiographical. It chronicles the development, over the last half century, of a desire to see the interconnectedness of the two poles of positivism, to join fact and value. No subject makes this more explicit than abortion, particularly as its reality has developed since 1973 in the United States. Finally, the issue of capital punishment is examined with reference to its life in law. Thus, theorizing begins with semantics and semiotics, looks to the constitutive relationship between law and fetal life, and concludes with the interrelations of the judicial and the criminal body as they come together in the penalty of death.

1 T HE M AP

AND THE

T ERRITORY

? [L]aws are maps. BOAVENTURA DE SOUSA SANTOS, “LAW: A MAP OF MISREADING”

M

aps seem to draw in students of law and language. Years ago, Boaventura de Sousa Santos’s wonderful essay “Law: A Map of Misreading” recalled the Argentine philosopher Jorge Luis Borges telling the story of an emperor who ordered his cartographers to produce an exact map of his empire.1 After producing the map, they found it not to be practical since it was the same size as the empire.2 The semiotician S. I. Hayakawa cautioned us a generation ago that “the Map is not the territory.” This caveat anchored his teachings about the confusions that abound in the world we symbolize. That position is now untenable. The idea that maps, and law, constitute real things turns Hayakawa’s formulation on its head. When we think of law and its denotations, we would like to think of places or sites where law is evident. This chapter begins with maps (and theories of what to make of them) in my life. It moves toward projects of a professional nature where language takes on a different meaning and then to epistemology in the debates about the nature of law. It concludes by amplifying the sites where the authority of the law is evident as a way to present constitutivism in legal scholarship and the structure that it brings back into legal analysis.

1. J. L. Borges, “Dreamtigers,” in Obras Completas (Buenos Aires: Emece, 1974). 2. De Sousa Santos draws our attention to signs he calls topoi, the “common places” or widely accepted points in a culture that are developed from what we know. Boaventura de Sousa Santos, Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition (New York: Routledge, 1995): 40–41.

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The ’Matz Patrol The early 1960s were an age of innocence in the United States before the Kennedys, Martin Luther King, and Malcolm X were killed. California epitomized this innocence. It was a place recorded in images of a car- and beach-based youth culture fueled by the baby boom, rock and roll, and cheap gasoline. Bands like the Beach Boys and the Kingston Trio celebrated good times while their experimentation and folk roots would be a link to the counterculture a few years later. In the United States, this time of magical beaches, protected suburbs, and automobile-driven freedom has been kept alive in black-and-white television reruns of Leave It to Beaver and Father Knows Best and nostalgia shows like American Dreams. Innocence appeared as nostalgia in American Graffiti, the movie classic from the 1970s, about the graduating class in a California high school in 1962. That was the year I was a junior at Menlo-Atherton High School in northern California. M-A, as the school is known, is located in a very prosperous suburb on “the Peninsula,” the area south of San Francisco. It was built in the California-modern style—one story, a flat roof, open hallways, and plenty of parking. When I attended, it was less than ten years old and had about two thousand students drawn from middle- and working-class communities that surround it. In the late fifties and early sixties, few residents went to private schools. My class and those just ahead of me were born in the last months of the Second World War.3 We were the leading edge of what would become “the baby boom” and an extraordinary migration to California. Ultimately, the sheer scale of the migration would turn into the exportation of California culture to the rest of the United States and to the world. Musicians like Stevie Nicks and Lindsey Buckingham of Fleetwood Mac come out of my school. The Grateful Dead emerged from the area while I was there. Remarkably, in the midst of all this, M-A introduced me to the puzzles of epistemology. From an unlikely beginning, these puzzles have continued to direct my life and my work. In particular, it was at M-A that “semiotics,” the science of signs, came to my attention. And it was in high school that the seeds of this book, and most of my others, were sown. Contemporary views of California, in the late 1950s, ran more to action like surfing or randomly driving around (cruising) than to intellectual pursuits. The Peninsula and the area around M-A seemed far from the Bohemia of San Francisco and the political environment that would come to be identified with Berkeley in a few years. Although we grew up in the shadow of 3. My father had been stationed in San Francisco, and one of my classmates was born in a “relocation” camp in Montana that had been set up to hold Japanese Americans in World War II.

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Stanford University, which produced Apple and Google, this seems to have been an unlikely place and time to get into the study of language and how we know what we know. One source of a particular intellectual tension in the high school was Malvin Dolmatz, the physics teacher; another was Charles Mendoza, the advisor to the student paper; and a third contribution to this mix was a group of adolescents who played with their identity, often, but not always, mixing their delicate egos with the ideas of their teachers. Dolmatz wore a white lab coat to teach in, and a bow tie. He had very little hair—just enough to produce a mad-scientist look somewhere between Einstein and Moe of the Three Stooges. The look was cultivated. He was a character and an inspired teacher. In the high school curriculum, physics came near the end of the college prep science program. It was preceded by chemistry on the non–life sciences track and was taken mostly by seniors. In those days the class had very few women in it. In my year I think there was one. Most of the students were immersed in the college application process, and by late fall of senior year everyone was already a little punchy. A decade after Brown v. Board of Education, the promise of color blindness hung heavily over the school. We did things like dedicate plaques with black and white hands clasping in an effort to establish bonds with the largely black Ravenswood High School across the freeway. We believed that good intentions would put an end to racial discrimination and that racism was simply an affectation of whites in the Deep South easily transcended in our great weather and prosperity. We thought of the all-black school across the freeway as just the way things were, and we did not feel implicated in the decisions of the school district even though it that had built nearly all-black Ravenswood in East Palo Alto, which was nearly all black. Only a few years later, the courts held that the district had discriminated in siting the school because the racial divide was inevitable.4 Charles Mendoza, the advisor to Bear Tracks and an English teacher, was of Portuguese ethnicity and he referred to himself in a self-deprecating way we would wonder about in more sensitive times. Mendoza was from San Francisco and he had gone to school there. Mendoza and Dolmatz were among a substantial number of inspired teachers who brought us the latest in intellectual challenge. Mendoza’s contribution was to make semiotics a common reference in school. Although I was never in his classroom, the things Mendoza taught still echo through my head. In one advanced class, Mendoza introduced the fundamentals of semantics. He named the class Language in Thought and Action, after the text by 4. A few years later, Ravenswood was closed by court order as being in violation of a then-expanding concern that de facto segregation was not always simply de facto.

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S. I. Hayakawa.5 This book was a practical-logic text, an academic treatment on clear thinking and clear writing. Hayakawa was a teacher at nearby San Francisco State College. And we assumed that Mendoza knew him, which made the whole experience all the more potent. He would become the controversial president of San Francisco State during riots in the 1960s over the war in Vietnam and racial diversity on campus. He later became a U.S. senator for one term, from 1977 to 1983. He died the year he stepped down from the Senate. His book was first published in 1941 when it became a Book of the Month Club selection. Hayakawa studied with Alfred Korzybski, whose Science and Sanity, written in 1930, set off a movement guarding against the propaganda of the prewar period. Hayakawa also incorporated the work of C. K. Ogden and I. A. Richards, Thurman Arnold, Jean Piaget, Susanne Langer, Kenneth Burke; the psychologists Karl Menninger, Karen Horney, and Carl R. Rogers; and the cultural anthropologists Benjamin Lee Whorf, Ruth Benedict, and Margaret Mead. The names meant little in high school but have come to mean a great deal to me as the roots of semiotic inquiry. One of the reasons Hayakawa’s book was such a good text was his effort to “add examples drawn from daily life” and “applications” of his theories about language. Hayakawa’s experience, the life on which he drew, was already extraordinary. He studied at the Menninger Clinic. He was a columnist for the Chicago Defender, which he described as “a Negro weekly.” He also ran a small co-op grocery store and did research on jazz. He started a journal of practical semantics, ETC., and kept up an active scholarly schedule while teaching four classes a semester at San Francisco State University. This remarkable scholar gave us the terms for our rebellion. A cult formed at M-A around “language and thought” and Dolmatz in my junior year.6 The participants were young intellectuals challenging the dominant Beach Boy ethos of sun, surf, and fast cars. They called themselves the ’Matz Patrol,7 and their rebellion anticipated the more widely chronicled rebellions of the late 1960s. I was not a member, but I counted many as my friends. They impressed me. While the California car culture dominated the 5. S. I. Hayakawa, Language in Thought and Action (New York: Harcourt, Brace, 1949). 6. I remember Bob Kahn being part of it and I also thought Greil Marcus and Peter Benjaminson joined in. Thirty years later, Benjaminson had a map for a shower curtain in his New York apartment and was intrigued by its misrepresentations (Juarez is not on the Mexican border, and Newfoundland appears twice). 7. At about the same time, a few miles away, Ken Kesey and the Merry Pranksters were embarking on a journey that became Tom Wolfe’s Electric Kool Aid Acid Test about the Grateful Dead. The post–Jerry Garcia manifestation of Dead culture was the “Furthur Tour” in the summer of 1996. In the early sixties, “Furthur” was inscribed on the license plate of the bus driven by the Merry Pranksters.

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scene, the ’Matz Patrol found oblique ways to make an impression. One of the things they did at least once was wear white lab coats to a basketball game and sit high in the bleachers under a banner declaring their identity. The coats were strange enough in the context of high school. But the students also cheered. The cheers would erupt at any time. The ’Matz Patrol, in their lab coats, would cheer when the referee called a foul on the other team. But they might be just as likely to cheer when a foul was called on our team. And they cheered when someone swept the floor. They cheered a lot when the pom-pom girls came out and jumped around in short skirts swinging crepe pom-poms in both hands. The most lasting impression for me was what they cheered. It came straight out of Hayakawa. The ’Matz Patrol’s main cheer was “The Map is not the Territory,” repeated over and over again. The reference was to a principle of “language in thought and action” that cautioned avoiding confusion in speech and writing by not mistaking something in the world for its signifier. According to this principle, a map was just a map, a representation. The territory, the land and the stuff on it, was something else. Maps and territories are a big part of Language in Thought and Action. There are thirty-seven references to them in the index. For instance, Hayakawa proposed that “we all live in two worlds . . . the world of happenings about us (the extensional world) . . . [and the world] that comes to us through words (the verbal world).”8 In this framework, the map stands to the territory as the verbal stands to the extensional world. The message was that we should beware of false maps. These were ones where there was a gap between the extensional and the verbal, where what we have in our head is not reflected in the world. Hayakawa offers superstitions such as the rabbit’s foot as one example and the idea that a word like democracy, because it comes from the Greek, means Greece is necessarily democratic, which it was not at the time. Many of the examples in the 1949 edition, from the preoccupation with the “mistake” of superstition to fears ranging from communism to sex, seem too archaic to worry about. But his message was formulated during a fearful time, and even in later editions those fears were still reflected in the text. From a version of semantics that aspired to teach careful thinking and logics for everyday life, the mantra had been transformed into its own signifier. To the rest of us, the idea that the map was not the territory was sort of cool—not cool in the way white buck shoes were cool, but in a different, off beat way. The beat generation had thrived not too far away, and there was something similar in this stance outside the mainstream, chanting about 8. Hayakawa, Language in Thought and Action, 32.

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epistemology. The ’Matz Patrol also paralleled Ken Kesey’s Merry Pranksters, who moved from Menlo Park to the hills behind Palo Alto at about this time. The message of the mantra for the ’Matz Patrol, like that for the bus that held the “Merry Pranksters,” was that an identity could be affirmed by repeating a phrase and embedding it in the culture. Maps were things that in those days parents pulled out when they were lost on some family trip in the land yachts of the period. Maps were familiar to Boy Scouts and, later, to those who served in Vietnam. For Hayakawa, maps came to symbolize the ideal world. In his formulation, the ideal stood in opposition to the positive reality we call, in the social sciences, empirical. Indeed, the entire formulation reflects the positivism that took hold as the social science of the 1950s and early 1960s and is losing its grip so reluctantly. Nevertheless, maps in this sense remain central to our discussions of our foibles in life and continue to stand for instances where we mistakenly put too much emphasis in symbols or take them to be more important than material life. A fine example is The Englishman Who Went Up a Hill and Came Down a Mountain, the 1995 British movie starring Hugh Grant. This is a story of two English cartographers out mapping the Welsh terrain who determine that a local promontory is not tall enough to be designated a mountain on their map because mountains must be over one thousand meters in elevation. In the story, Betty, a barmaid, objecting to various schemes being proposed to her in the effort by townspeople to raise the height of the land so that it will be recorded on a map as a mountain rather than a hill, exclaims “All this for just a map?” In response, the town publican and a key figure in the effort to raise the hill, replies—while attempting to undress his barmaid—“Maps, dear Betty, are the undergarments of a country, they give shape to continents.” More scholarly and generally less prurient is the work of scholars like Boaventura de Sousa Santos and Margaret Thornton who have written of the importance of maps in law and public policy.9 When I was in high school, undergarments were more charged than maps. We did not think of maps or their relationship to the world as big issues. The issues, most of the time, were our relationships. The playful effort of the ’Matz Patrol, presenting itself as about maps and reality, was probably about the status of really smart adolescents in a very comfortable culture.

9. Boaventura de Sousa Santos, “Law: A Map of Misreading,” in Toward a New Common Sense (New York: Routledge, 1995); Margaret Thornton, “The Cartography of Public and Private,” in Public and Private: Feminist Legal Debates, ed. Margaret Thornton, 2–16 (Melbourne, Australia: Oxford University Press, 1995).

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This framework would become problematic and emerge as the center of one of the defining controversies for our generation. Significantly, it was another one that appeared to be about speech.

The Free-Speech Movement Just a few years after sitting in the stands below the ’Matz Patrol banner, I was drawn to the University of California (UC) at Berkeley. This was subsequent to what was known as “the free-speech movement,” or FSM. It was the beginning of the student radicalism on campuses around the world and followed the civil rights movement and fed into the antiwar movement and ultimately to “The War at Home.” I came to Berkeley from UC Santa Barbara (UCSB), where I had gone upon graduating from high school. Although UCSB had fine departments and important faculty, in the mid-1960s it lacked a traditional academic culture. As I was beginning to transfer, the free-speech movement happened at Berkeley. This struggle erupted in the spring of 1965 as a conflict over political organizing. The focus was “tables” used to collect money for various causes. These were card tables with political pins, petitions, and bumper stickers that were set up on the edge of the campus. The administration wanted them off campus. I had not known that tables could be political. One of the leaders of the FSM, Mario Savio, came to UCSB while I was there to rally support for the activists at Berkeley. He spoke outside in the mild Southern California winter and told us of the uprising at our sister campus in Berkeley. I remember vividly his description of the free-speech tradition—Oliver Wendell Holmes and shouting fire in a crowded theater and causing a panic. I did not get it all but the free-speech movement did sound more exciting than hanging out at the beach. So I transferred. Berkeley was puzzling, and the transition to a bigger, more political, more intellectual place was not easy. Students were constantly asked where they stood on the eight hundred arrests made by the administration. Shortly after, the issue became the Vietnam War. I might have applied Hayakawa’s mantra to the situation and figured out that the struggle was not really about tables. It was not even about Vietnam. But I did not do that. Instead, once I got to Berkeley, I was slowly drawn into the struggle. This was first as a reporter for the student newspaper. Later, it was as an active participant in rallies and as a member of a radical political party on campus. Interestingly, in this political environment not only did Hayakawa, as an administrator, become one of the enemies of student activists but so, ultimately, did the philosopher John Searle. Searle had originally been one of the faculty firebrands challenging the administration. He was subsequently

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brought in by a new chancellor to help restore order and soon became an important spokesman for the administration. As a philosopher, his work with the times when speech performs or acts would emerge as another important contribution in the epistemology wars.10 But his philosophical position was undercut as a semiotic model by his position in an administration that had by 1970 produced one of the first deaths on campus.11 I found a place in the student movement. This was first as a representative of the radical student government political party, SLATE. Later it was as a graduate student. Ultimately I became a “conscientious objector” to the war in Vietnam. The movement became a place where I lived. I came to feel an identity with critics of liberalism and assumed a political stance that remains quite vivid although quite a bit less common. Berkeley as the center of all this in the world was a wonderful place to be. During this time Stanley Cavell brought a love of Wittgenstein to Berkeley. Eventually it trickled down to me.12 I began to associate the idea that “The Map is not the Territory” with Wittgenstein’s logical treatise, the Tractatus. Like others, I associated that work with positivism and hierarchies of state and professional power. The adolescent image of semiotic games that I had first come across in high school came to be supplanted by a moral imperative to put one’s body in the gears of the university or “the machine” as we called it then. There were banners and mantras, but they were no longer just words that seemed to be cool or, although they seemed to be cool, that was not all we hoped they would be. The fact that Hayakawa was tossing my compatriots off his campus across the bay did not help his version of semiotics. But as I began the scholarly study of law and politics, I worked on Wittgenstein’s theory of language and hoped to show that the legal map, the words and practices of law, mattered in ways that my teachers seemed not to understand.13 I thought that the most interesting political science was a science of legal signs as structures, languages, and rhetoric. In social science, all related developments came to be called the “interpretive turn.” These were, in general, critiques of positivism. Epistemology has been a central feature in debates about the nature of law and its relation to politics and social life. The politics of epistemology here develops the failure of legal positivism to capture the influence of law on social life. 10. John Searle, Speech Acts: An Essay in the Philosophy of Language (Cambridge: Cambridge University Press, 1969). 11. This was in the “People’s Park,” a piece of land owned by the university that some members of the community wanted to leave vacant for public use. 12. A key vehicle was Hannah Pitkin’s Wittgenstein and Justice (Berkeley and Los Angeles: University of California Press, 1972). 13. John Brigham, Constitutional Language (Westport, CT: Greenwood Press, 1978).

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From Interpretation to Sites In Anglo-American countries we often look too hard for law and thus look past it.14 We expect laws to be tucked away in difficult to access law libraries or in obscure professional practices and we do not notice the law in social and cultural practices. As part of our landscape, legal practices determine whose field the farmer plows. They tell him whether the field is his or whether he works for someone else. Law marks the boundaries of suburban plots and urban buildings. It is hard to miss the zones of pornography that support enterprises with movie ratings dipping to the bottom of the alphabet, although we often miss the role of law in their creation. And metropolitan residential patterns with black at the center and white in the periphery, which say where children go to school, how taxes are collected, or the name a community goes by, are not seen as matters of law at all. Those practices amount to sites of law as much as the traditional ones. Law in this sense is less obvious than the official contexts—trials, hearings, or executions. This law is sometimes more diffuse, but it is often also more pervasive, more penetrating. Socio-legal scholars have begun to see rights in legal landscapes for various movements. In The Constitution of Interests,15 I tried to reconceptualize political interests and show how conventional understandings challenge us in the search for law’s role in political action. Traditionally, politics appears to be instrumental and its strategies appear unfettered by law. The feminist movement to destroy pornography, for instance, has been pretty clear about what it wants. But past attention to interests, such as whether or not they will be satisfied, distracts us from the forms that constitute. One of the challenges is that movement practice in general and practices within legal forms like rights or informalism are selfconscious and fluid. The social tolerance of drunk driving, before mothers organized against it, and the progressive nature of free speech, before feminists questioned it, changed under the gaze of politics. The self-consciousness of movements that distracts us from legal construction makes that construction particularly significant. That law has a life beyond courts and lawyers is the message of constitutive work. Professor Helena Silverstein, writing about the animal rights movement, documented the shift from compassion to rights. Her book Unleashing Rights shows how intellectuals like Peter Singer shifted the movement from 14. Christine Harrington and I have said this for some time and in various places, particularly the book series we edited at Routledge titled After the Law. 15. John Brigham, The Constitution of Interests: Beyond the Politics of Rights (Philadelphia: Temple University Press, 1987).

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compassion to rights.16 Her framework takes seriously the notion that law is not just influenced by society, as in the power of movements to change laws. Nor is society simply a receiver of laws, as in the impact of high-court decisions on the practice of rights. For animal rights activists, law is in the rights strategies moving “from the discourse of compassion.”17 Silverstein sees the movement as communicating “the values of sentience, caring, relationship, responsibility, and community” and animal rights activists shifting the basis of rights claims from rationality to sentience, and in this the movement has been a site of law.18 Constitutivism is also associated with Karl Klare, Robert Gordon, Alan Hunt, and Christine Harrington.19 It is not the same as the idea that “the law is all over,” which is attributed to Austin Sarat,20 although both positions may be found in the work of the Amherst Seminar, which met from 1980 to 1995. In all of this there is a link between the constitutive and the realm of material life.21 Used here, site, as a technical term, draws from ethnographic and archeological practice. In these disciplines, a site is a place where the parts of a culture may be called upon to reveal themselves to those who are interested. In my 16. Helena Silverstein, Unleashing Rights (Ann Arbor: University of Michigan Press, 1996). Silverstein establishes the movement’s links to other struggles against oppression and explains the strategic parallels between “speciesism” and racism. 17. Ibid., 28. 18. Ibid., 55. 19. One of my favorite statements of the constitutive position is by Alan Hunt: “Its hallmark is the contention that legal life and everyday social life are mutually conditioning and constraining and that elements of legal consciousness play an active part in popular consciousness and practices. Law enters into the way that life is imagined, discussed, argued about, and fought over; this imagining, talking, arguing, and fighting shapes the law. For example, legal conceptions are constitutive of widely dispersed views about property and trespass, about debts and contracts. These conceptions are not simply the incorporation of dominant ideologies within popular consciousness but also play a key role in the articulation and application of the specifically legal conceptions of property, debt, and contract.” See Alan Hunt, “Law, Community, and Everyday Life: Yngvesson’s Virtuous Citizens and Disruptive Subjects,” Law and Social Inquiry 21 (1996): 178–179. 20. Austin Sarat, “ ‘. . . The Law Is All Over’: Power, Resistance, and the Legal Consciousness of the Welfare Poor,” Yale Journal of Law & the Humanities 2 (1988): 343. See also John Brigham, “Seeing Jurisdiction” (paper, annual meeting of the Law and Society Association, Montreal, May 29–June 1, 2008). 21. Other scholars whose work is identified with this framework are: Kristin Bumiller, In an Abusive State (Durham, NC: Duke University Press, 2008) and The Civil Rights Society (Baltimore: Johns Hopkins University Press, 1988); Efren Rivera-Ramos, who studied the constitution of identity in Puerto Rico; Alan Hunt, Explorations in Law and Society (New York: Routledge, 1993), his early work on the sociological study of ideology; Rosemary Coombe (see, for instance, “The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy,” Canadian Journal of Law and Jurisprudence 6 [1993]: 249–285); and Dragan Milovanovic and Stuart Henry (see Constitutive Criminology at Work [Albany: State University of New York Press, 1999]), who remain focused on the enterprise.

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formulation, the material law of the title refers to the places where legal ideas become our material life and our material life sets the parameters for law. They are, for example, the open and closed rangelands of northern California,22 and the neighborhoods and territories of the United States where the constructions of race are ongoing.23 They are the places where the conceptual and physical come together. These may be places where materiality is made in the image of law. For instance, the cows on some land are responsible for the damage they do and the cows on other land are not held accountable. But sometimes it is the law that is constructed in its engagement with the material. This may be a case of natural influences, as with the grasses that draw cattle to a particular range, or it may be human-made, as happens with the technologies that offer new ways to save life as well as to take it away. One particularly vivid example of a legal site is the contested aboriginal land in Australia. Under the legal doctrine of terra nullius, the aboriginal occupation of land for forty thousand years prior to European settlement did not have to be recognized in law. The doctrine held, literally, that no one living in what became Australia could pass on legal rights to the land they occupied. The contrary legal theory of “native title” was established as doctrine in a case brought by Eddie Mabo, an activist from North Queensland in Australia. The Mabo decision handed down by the Australian High Court overturned a hundred years of assumptions about the status of aboriginal claims. From that point on, contested terrains all over the continent looked different with the elevation of the native claim to have title. Among the many legal scholars who have seen the significance of this decision, Peter Rush of the University of Melbourne faculty of law drew attention to some of the more penetrating meanings. In analyzing the Mabo decision,24 he noted the juridical “incorporation of the other,”25 where in almost counterintuitive fashion not just the land but the aboriginal itself was brought under the laws of the land. To Rush, the story is brought to the “form and idiom of jurisdiction” and in approaching the question in this fashion he penetrates “the space or site from which the relations between

22. Robert Ellickson, Order without Law? (Cambridge, MA: Harvard University Press, 1991); see also John Brigham, “Order without Lawyers?” Law and Society Review 27 (1993): 609–618. 23. John Brigham, “The Other Countries of American Law,” Social Identities 2 (1996): 237–254; David Delaney, Race, Place, & the Law: 1836–1948 (Austin: University of Texas Press, 1998). 24. Peter Rush, “Deathbound Doctrine: Scenes of Murder and Its Inheritance,” Studies in Law, Politics and Society 16 (1997): 69–97. Peter Goodrich and Alison Young told me about The Songlines by Bruce Chatwin (New York: Viking, 1987) and that the aboriginal word for dreamtime (when the land and people and law were made) is Tjukurrpa, which is the same as the word for law. 25. Rush, “Deathbound Doctrine,” 73.

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self and other are put into circulation.”26 In addressing the incorporation of the aboriginal claims in legal life, the scholar is brought in contact with sites with broad and often difficult-to-determine meanings. In Australia, aboriginal life is much closer to the cultural surface, to the facets of culture being constructed at the moment than Native American life seems to be in the United States.27 Nevertheless, these sites are each capable of analysis bringing law and material culture together. Ultimately, constitutivists reformulate the message of the ’Matz Patrol, turning it on its head. We now say, “The Maps (of law) ARE the territory.” That is, the maps are the territories of politics and of social life. The maps matter a good deal more than we thought they did. They are the stuff by which we live our lives and they become the stuff around which we build our identity. For instance, if ideas about law did not begin there, they often flourished in the law school at Yale. One of my favorites is reproduced as the 1982 article “Fiss v. Fish,” a comment on Owen Fiss’s article “Objectivity and Interpretation” by the Milton scholar and highly mobile literature professor Stanley Fish. After debating the nature of authority in law, Fish concludes his essay with the following passage: It has been my argument that [the possibility of adjudication] is a consequence of being situated in a field of practice, of having passed through a professional initiation or course of training and become what the sociologists term a “competent member.” Owen Fiss has undergone that training, but I have not; and, therefore, even though I believe that his account of adjudication is wrong and mine is right, anyone who is entering the legal process would be well advised to consult Fiss rather than Fish.28 Thus, the visitor at Yale demurs to his host, who clearly matters more to the careers of the students in the law school. When you believe, as Fish does, that the power in law resides in something like these fields of practice, it is important to identify them, to speak of places and people as well as ideas. My presentation said something about that as well

26. Ibid. 27. Like the lion in C. S. Lewis’s Chronicles of Narnia that sings the world into being, aboriginal songs and dreamings are widely understood to give pride of place to the natural world. See Chatwin, The Songlines, and David Malouf, Remembering Babylon (London: Chatto & Windus, 1993). 28. Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, NC: Duke University Press, 1989).

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as about the project of studying how law is constituted. This project places constitutive approaches in the critical tradition in a manner that reflects the processes by which an academic tradition is established, or constituted. Thus, this is a story of academic enterprises as much as it is a story of ideas. Whether we speak of what it means to constitute or to be a constitution, whether we speak of the verb or the noun form derived from the Latin constituere, this is a part of our vocabulary that takes much of its meaning from laws. We say, drawing on and developing a tradition, that laws constitute when they compose, comprise, construct, or form something. For instance, the laws of marriage constitute the relations of husband and wife. Laws establish the relationship and contribute a great deal of the meaning of those terms and the conditions that follow. Similarly, the laws of property constitute the relations of landlord and tenant. Laws and the constitutive are essentially the same in the case of the U.S. Constitution. The “separation of powers” or federalism, delineated but not actually mentioned in the Constitution, have become essential elements for understanding American government. If they could be extracted from practice, U.S. government would not be the sort of thing we know it to be. Thus, laws are linked with the constitutive as a verb, and law is positively inseparable in the noun form. Constitutive work in socio-legal scholarship looks at the way relations among people are formed by or with reference to law. Especially exciting to students of the constitutive in law are the relations and practices in life that appear to have lost track of legal influences. Of course, we know the marital relation as a legal one. The ceremony of marriage has an obvious legal as well as social and religious quality. Marriage also manifests itself with a force originally in law. For instance, in heterosexual conversations speakers presume the sanction of law. We often hear references such as, “My husband did this,” or “My wife did that,” as if it were the most ordinary thing in the world to speak of one’s life partner in terms of the legal relation. Of course, this puts gay identity and ultimately its discourse on the defensive, as with reference to “partner” or some other less than satisfactory manner of describing relations outside of law. The structural dimensions in our social relations attract those with a constitutive perspective. Although constitutive scholarship is associated with interpretation and discourse, with the cultural and the social in phenomena, we should not presume its relativism—a matter to which we will return later. The most famous structural relations in society being class relations, this facet of constitutive work is less popular than the work that uncovers hidden influences. Sometimes the constitutive enterprise loses its Marxist language in an effort either to become more acceptable or simply to broaden its appeal, but the roots of the practice are there and occasionally they assert something

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of the old politics. Constitutive also refers to a level of legal relations, which necessarily entails culture as well as law. This is evident in treatment of the execution of Ethel and Julius Rosenberg in the 1950s by the culture studies people at Harvard. Viewing the execution in the context of fifties America, the Cold War, and anti-Semitism, law becomes one force among many and not anything like the whole story.29 The philosopher Ludwig Wittgenstein advised looking at how terms are used, and in law there are a number of uses of constitutive. We can find examples of constitutive theory in international relations and administrative law, but ultimately we turn to work that is part of a critical tradition in law. As a critical enterprise, constitutive approaches challenge the idealism of liberal law. Politics and epistemology joined together in the period of reflection spawned by student activism, civil rights, and Vietnam in the 1960s. The first instance of this perspective in political science was an effort to find a place for public interest law in the academy. Stuart Scheingold, in The Politics of Rights,30 gave symbolic meaning to instrumental uses of law like those by public interest lawyers. He went about as far as liberal theory could go to transcend its sensitivity to identifying the sources of law, and he built a politics out of “the myth of rights” by teaching a generation of socio-legal scholars that although activists could not depend on a declaration of rights from courts they might still mobilize around the promises of rights. The impact of symbols in Scheingold’s work was that they “condition perceptions, establish role expectations, provide standards of legitimacy, and account for the institutional patterns of U.S. politics.”31 Rights strategies adapted in collective action were the symbolic dimensions of law, and this dimension was a political resource. In similar work that was a response to the upheaval in the late 1970s, Isaac Balbus sought to tie the use of law to the violence in the inner cities. Balbus’s The Dialectics of Legal Repression elaborated the nature of law and material life as a reflection of the commodities in markets. He linked U.S. scholarship to work that had existed for some time in Europe.32 Stuart 29. Marjorie Garber and Rebecca L. Walkowitz, Secret Agents (New York: Routledge, 1995). The proposition, for Garber and Walkowitz, is that the place of Jews in fifties America—and the meaning of the execution—could be symbolized in disputes over whether Jell-O was kosher. We would not want to say Jell-O, in all respects, is linked to this or any other execution, but rather that our legal relations and our cultural relations overlap. 30. Stuart Scheingold, The Politics of Rights (New Haven, CT: Yale University Press, 1974; 2nd ed., University of Michigan, 2004). 31. Ibid., xi. 32. Isaac D. Balbus, The Dialectics of Legal Repression: Black Rebels Before the American Criminal Courts (New York: Russell Sage, 1973); Isaac D. Balbus, “Commodity Form and Legal Form: An Essay

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Scheingold and Balbus, writing in the 1970s, represented a shift in how U.S. social science approached the study of law.33 In February of 1978, at the first critical legal studies (CLS) conference, Karl Klare drew on the work of E. P. Thompson and Douglas Hay, whose legal history sought to establish a place between the ideal and the real in law. Along with neo-Marxist theories of praxis current at the time, Klare addressed “the crisis in liberal legal theory” in an article titled “Law-making as Praxis.”34 The article advocated “transcending the traditional view of law (and the state generally) as mere instruments, buttresses, or ‘retaining walls’ of class power, and being able to conceive of law and politics more broadly as forms of practice.”35 In calling for a “constitutive theory of law,” Klare sought “to free Marxism” from determinism and “the notion that law is a mere instrument of class power.”36 In looking at law as constitutive rather than instrumental, in order “to free the Marxist theory of law from its determinist integument—i.e., the notion that law is a mere instrument of class power.”37 Instead, he calls for attention to lawmaking as a form of praxis.38 This was merely a glimpse at constitutive possibilities. Within a few months Klare and the other Crits from that period had jettisoned “lawmaking as praxis” in favor of realism. The CLS movement’s shift to realism was strategic and something of a return, since liberal law in the 1930s had inaugurated the position as a critique of conservative formalism. Although the framework shifted, the seeds of post-realist critical legal studies had been laid. Not long after Klare’s statement, Robert Gordon offered (somewhat offhandedly I think) what has become a foundational statement for constitutive work in law. Gordon was responding to the critique of court-centeredness made by advocates of a “law and society” approach. He appeared to want to show some trickle-down effects from the work of high-court judges and their law school clerks. Writing about legal history, in an article for Legal Studies on the ‘Relative Autonomy’ of the Law,” Law and Society Review 11 (Winter 1977): 571–588; Zenon Bankowski and Geoff Mungham, Images of Law (London: Routledge and Kegan Paul, 1976); Bernard Edelman, Ownership of the Image: Elements for a Marxist Theory of Law (London: Routledge and Kegan Paul, 1979). 33. Similar work in sociology, like that of Joseph Gusfield, and in anthropology, by Clifford Geertz, reflected nearly the same intellectual influences. 34. Karl Klare, “Law-making as Praxis,” Telos 40 (1979): 123–135. 35. Ibid., 124–125. 36. Ibid. See also Karl Klare, “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness,” Minnesota Law Review 62 (1978): 265. 37. Ibid. 38. Ibid.

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Forum, Lucy Salyer discusses “the constitutive nature of law” and quotes Gordon extensively.39 [I]t is just about impossible to describe any set of “basic” social practices without describing the legal relations among the people involved— legal relations that don’t simply condition how the people relate to each other but to an important extent define the constitutive terms of the relationship, relationships such as lord and peasant, master and slave, employer and employee, ratepayer and utility, and taxpayer and municipality.40 In his justification for attending to the conceptual parameters of case law, statutes, and the treatise literature, what he called “mandarin materials,” Gordon saw appellate litigation and legal scholarship as “an exceptionally refined and concentrated version of legal consciousness” and he describes these materials as illuminating “the vernacular, the common forms of legal discourse.”41 He pointed to research that found the basic elements of formal legal rules of property and contract internalized by lay people and routinely applied in contexts remote from officials and courts. This observation likened constitutive theory to socio-legal scholarship. According to Gordon, “Field level studies would reveal a lot of trickledown effects—a lot of mandarin ideology reproduced in somewhat vulgarized forms.”42 Legal scholars have long been confident that the structures familiar to lawyers stand behind many of the ways ordinary people think about the world. The idea is sobering. Movements are constituted in traditional legal terms where participants see the world through concepts derived from state institutions and where the participants organize themselves according to such concepts. The concept of free expression in America is often derived from talk about the First Amendment to the U.S. Constitution. Thus, movements as diverse as Women Against Pornography and the “right to life movement” are constituted, at least in part, by law. Legal forms are evident in the language, purposes, and strategies of movement activity as “practices.” We don’t see codebooks or legal citations hanging cartoonlike in the air, but when activists speak to one 39. Lucy Salyer, “The Constitutive Nature of Law in American History,” Legal Studies Forum 15 (1991): 61–65. 40. Robert W. Gordon, “Critical Legal Histories,” Stanford Law Review 36 (January 1984): 103. See also J. Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956). 41. Gordon, “Critical Legal Histories,” 121. 42. Ibid.

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another in meetings, on picket lines, or over the phone, their language contains consistent ways of understanding or acting, that is, practices of, about, or in opposition to the legal system. One of the first discussions of the constitutive character of language and symbols appeared in England when U.S. critical scholars were turning away from the vaguely Marxist constitutive project and toward realism. Cleverly titled The Material Word, the work proposed to reverse the assumption that speech refers to an external reality in exchange for “attention to speech as a reality in its own right.”43 Developing Louis Althusser’s materialist theory of ideology, the authors describe practices as existing within ideologies that relate individuals to one another and to the conditions of their existence. They look at the ideology of the Christian religion in one example that chooses, appropriately, naming, or christening. The results of this practice are evident when we address “a human individual, called, say, ‘Peter.’” The name is produced from within an ideology since it is a “biblical” name. It is granted by an ideological practice, “baptism.” These practices tell you that “God exists and that you are answerable to Him.”44 Ideas, forms, and conventions are all “practices” constituted by and in turn constituting different communities. This is the sociological dimension, the foundation for law in politics. This is the way law enters into and determines social relations. In America, law must be held accountable for a native culture being wiped out and the enslavement of an African population. The law under which this movement appropriated a continent is Western and its specific instrument was the U.S. Constitution of 1787. The earliest national legislation laid the groundwork for continental expansion with provision for the sale of fee simple titles at public auction after surveys that would provide for parcels of land that were uniform and highly marketable. The ideas about law held by activists are conventions, articles of faith, and views about the world the activists take to be true. These ideas about law are constituted in social relations and they are significant parts of the legal order. In the article “Rights, Rage, and Remedy: Forms of Law in Movement Practice,” I discussed forms of law as examples of law constituting social life.45 There were initially three. The first was the classic assertion of a legal right described as constituting movement practice by situating the politics of some movements, such as the gay rights or civil rights movements, in a hope43. David Silverman and Brian Torode, The Material Word (London: Routledge, 1980), 2. 44. Ibid., 22–23. 45. John Brigham, “Rights, Rage, and Remedy: Forms of Law in Movement Practice,” Studies in American Political Development (1987): 303–316.

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ful relation to the state. The remedial form of law, evident in the mediation or alternative dispute resolution movements, on the other hand, articulates a critique of legal forms but it appears to be advocated by people who either are part of the legal system or find a place close by. Rage is a form of law that stands opposed to right in the respect that it manifests a lack of faith in the mobilization of law and social relations that stand apart as well. It is law in this form that characterizes the antipornography movement. To the extent that CLS scholars provided a foundation for a constructive constitutivism, it may have been in eagerness to build bridges to new colleagues in the law schools and in practice. Scholars of this nature include the legal historians William Forbath and Hedrick Hartog. Both Forbath and Hartog give life to the political and social forces in law without making them the whole story. Forbath holds law accountable for the bureaucratization and lack of militancy of postwar labor. Hartog’s book The City as a Legal Concept contributes examples of the constitutive role of law in the formation of the modern city. According to Frank Michelman, another legal academic who has contributed to the development of this approach, the constitutive refers to “normative givens that underwrite a political process.”46 Social scientific scholars across the disciplines have learned to speak of power and government in new ways and treat knowledge as a social construction. The most salient aspect of the analysis of power for legal studies was the argument that the central locations of big power, the state and capital, were no longer the defining characteristics of power. It came to be associated with the work of Michel Foucault. Instead of big state power, smaller expressions of power located in dispersed sites had become central to the way power is constituted. The queen in her carriage, the president and Air Force One have become heads of a much-diminished state. The governing institutions that had once exercised authority as will and displayed their power in the pomp and circumstance surrounding heads of state, had been supplanted by new architectures of power, which Foucault called small. These smaller powers are evident in the form of surveillance cameras in stores and sometimes in the street, the clerk behind the counter at Kinko’s with the power to determine what you can copy or at Benetton’s with his or her finger at a buzzer who can determine whether you can enter the store, or the Uniform Product Code (UPC) that can be scanned at the checkout counter to determine what is being purchased, when, and along with which other products.47 46. Frank Michelman, “Family Quarrel,” Cardozo Law Review 17 (1996): 1163. 47. Patricia Williams, Diary of a Law Professor: The Alchemy of Race and Rights (Cambridge, MA: Harvard University Press, 1991).

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Those working in the tradition of Foucault and others who were part of the larger and more diverse “interpretive turn,” saw authority as more widely distributed and less obvious than the traditional sites of power.48 Foucauldians tried to change the entire image of modern state power from that of pomp and circumstance to the scanner at the checkout counter. It was a dramatic contribution. Paradoxically, this development occurred just as mainstream social science was “bringing the state back in” to the picture. Clearly, both levels must be incorporated in descriptions of modern power and social control. High courts and surveillance cameras, armies and clerks, the FBI and the UPC each play a role in maintaining the social order. While the popular news in the West covers crime far more fully than commerce, and child pornography more assiduously than inheritance, the latter are more constitutive of law’s place in society. This propensity to equate law with legal institutions in general and violent transgressions in particular is part of the contemporary configuration of power, which must be theorized in order to understand law. The reception of Foucault reflects the ideology of legal realism, which incorporates a picture of an emasculated legal form in its own articulation of power. Here, politics is played out in the domain of epistemology. A close reading of the prospects for a postpositivist sociology of law leads us to what it means to take the material world seriously while developing the premises of social construction. In all of this, the Tocquevillian notion that all political questions become legal ones is turned around to identify places and things where law determines what becomes political, and by implication, cultural, social, and physical. In this, law is maps that become our territories, our buildings, and even our selves.

48. “The disciplines are to be found on the underside of the law.” Michel Foucault, Discipline and Punish, trans. Alan Sheridan (New York: Vintage, 1977), 223. The result is that all the institutions of incarceration, prisons, asylums, and by extension, factories and schools, operate in such a way as to “naturalize” the legal power to punish at the same time as they “legalese” the technical power to discipline (Foucault, Discipline and Punish, 303; Alan Hunt and Gary Wickham, Foucault and Law [Ann Arbor: University of Michigan Press], 46).

2 T HE P UBLIC

IN THE

W OMB

? Roe encouraged a conservative agenda by advancing the state’s interest in the health of the mother and the fetus after viability. DANA NEACSU

T

he law on abortion has changed the meaning of human life in the United States.1 Before Roe v. Wade,2 abortion, while deeply personal and often tragic, had, in policy terms, been a medical and theological issue. After the decision, it came to be a much broader social, political, and legal concern. The public debate generated by the law on abortion has politicized pregnancy, affecting every dimension of child bearing from insurance to the meaning of birth.3 One unexpected result of the Supreme Court decision is that the fetus or unborn child is much more important than it was prior to Roe. Protection of the fetus mobilizes anti-abortion crusaders and has made them a force in public life for over a generation. No matter where you stand on whether he, she, or it is a person, there is no denying that life in the womb has become public life and that the fetus is present in politics. 1. An early version of the argument in this chapter is in, John Brigham, Janet Rifkin, and Christine Solt, “Birth Technologies: Prenatal Diagnosis and Abortion Policy,” Politics and the Life Sciences 12 (1993): 31–44. 2. 410 U.S. 113 (1973); see Laura Lovett, Conceiving the Future: Pronatalism, Reproduction and the Family in the United States, 1890–1938 (Chapel Hill: University of North Carolina Press, 2007). 3. The literature in this area is monumental, but some work that focuses on the emergence of the fetus is: Lynn Morgan, Fetal Subjects, Feminist Positions (Philadelphia: University of Pennsylvania Press, 1999); Sarah Dubow, Ourselves Unborn: Fetal Meanings in Modern America (New Brunswick, NJ: Rutgers University Press, 2003); Jane Maienschein, “Human Embryos and the Language of Scientific Research,” American Journal of Bioethics 1, no. 1 (Winter 2004): 6–7; Carol Sanger, “Seeing and Believing: Mandatory Ultrasound and the Path To a Protected Choice,” UCLA Law Review 56 2008): 351–408.

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Since 1973 when Supreme Court Justice Harry Blackmun carved out a place for emerging fetal personhood in a series of stages that he called trimesters, American policy has had to address the needs and interests of the yet-tobe-born. The fetus as a figure in public life has widespread consequences for the way abortion is viewed. A complex series of consequences have defined the technologies dealing with fetal life. Life and the technologies by which we know it are different as a result of the law governing the body in the womb. This chapter focuses on two material consequences of abortion law, fetal life and prenatal diagnosis. In both instances, law and politics give (or deny) some things that are real. Scholars and cultural critics once treated technology as an autonomous part of life. In this view, technologies—from jet engines to laser disks— emerge from discovery and follow their “. . . own course, independent of human direction.”4 On the other hand, we have heard that we have an ability to intervene and alter the course of technological development. Amitai Etzioni, writing about genetics over thirty years ago, evoked the widespread optimism about technologies when he asked, “What mechanisms, used in what ways, make it possible to curb some undesirable effects?”5 Between that earlier period and the present, scholars held out the prospect of constitutional standards governing advanced genetic technologies.6 For decades, we have been aware of the relationship between policy and technology, and, with reference to abortion, we want to know more about the effects of law. Here, we are concerned with the consequences that law and policy have for technology and ultimately for the meaning of life. We explore the presumed divide between law and things. We describe the interaction between the laws on abortion and the technologies used in prenatal diagnosis, which we refer to as “birth technologies.” We begin in the 1970s when these technologies were emerging in the shadow of Roe v. Wade, and trace the story to the early 1990s. We sketch the parallels between the unfolding controversy over abortion and development of new capacities to understand prenatal life. For the post-Roe period, we describe a number of laws, exploring their consequences for basic research and prenatal technologies. The tension between the legalization of women’s bodies and medical technology is a basis for describing the material consequences of legal developments.

4. Langdon Winner, Autonomous Technology: Technics-out-of-Control as a Theme in Political Thought (Cambridge, MA: MIT Press, 1977). 5. Amitai Etzioni, The Genetic Fix: The Next Technological Revolution (New York: Harper and Row, 1973). 6. Ira H. Carmen, Cloning and the Constitution: An Inquiry into Governmental Policymaking and Genetic Experimentation (Madison: University of Wisconsin Press, 1985).

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By the late 1970s, the decision that brought amniocentesis from the laboratory to the clinic produced a reaction that threatened to block further development of prenatal diagnosis. Section one of the chapter explores the relationship between the law on abortion when it was new and the emerging technology for prenatal diagnosis. Section two turns to how secondary Supreme Court decisions and particular legal issues like liability forced the new technology into reacting to the emerging significance of the fetus. The third major section of the chapter explores the law on fetal life coming out of legislatures as they self-consciously sought to block technological effects on fetal life. In the end, a complex mix of law, politics, and technology constitute fetal life and have altered its meaning more in the last quarter century than has been the case for millennia.

Amniocentesis and Abortion Abortion law at the beginning of the nineteenth century in the United States was what we would now call liberal, although people did not call it that at the time. The law was minimally restrictive with regard to sanctions, but it became more restrictive as the century progressed. In 1821, Connecticut enacted legislation proscribing abortion, becoming the first state to do so. By 1900, most states had banned the procedure unless its purpose was to save the life of the mother. The historic, common law distinction between a “quickened” and an “unquickened” fetus had disappeared by the beginning of the twentieth century. As James Mohr pointed out, “By 1950 American public opinion considered abortion socially odious, and virtually noone in American society yet dared to call openly for its legalization.”7 In this context, Jerome Lejeune would dissociate his discovery of the chromosomal basis for Down syndrome, a key to prenatal diagnosis, from even the suggestion that it would lead to abortion.8 Since researchers conducted the basic studies while abortion was still illegal, the emphasis was on treatment in the womb. A number of events changed attitudes on abortion and linked it to prenatal diagnosis. In 1964–1965, a nationwide rubella epidemic produced 20,000 to 30,000 children born with birth defects. The Rubella outbreak was followed by the “Thalidomide epidemic” in which a drug taken during pregnancy produced severe and debilitating conditions in the growing child. The image of prenatal damage and the plight of Sherry Finkbine, an Arizona woman, who searched around the world for an abortion after taking Thalidomide, gener7. J. Mohr, Abortion in America (New York: Oxford University Press, 1978). 8. J. Lejeune and R. A. Turpin, Human Affliction and Chromosomal Aberration (Oxford: Pergamon Press, 1969).

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ated widespread interest in the prevention of birth defects and the availability of abortion.9 These struggles were the modern manifestation of concern for the fetus as an emerging player in public life. By 1970, ten states had liberalized their abortion laws on the basis of the American Law Institute model. Political movement was clearly in that direction. New abortion statutes established that mental or physical harm to the mother or to the fetus were grounds for abortion. In United States v. Vuitch (1971), the justices of the United States Supreme Court, in one of their first encounters with the issue, held that the preservation of a mother’s health constituted a justification for abortion. And, maternal “health” might include psychological as well as physical wellbeing. Although the existence of birth defects was not sufficient justification for abortion, the Vuitch decision created a legal climate more conducive to the diagnosis of birth defects where termination of pregnancy was imaginable. This was part of a general cultural movement toward more liberal access to abortion. By the early 1970s, there was increasing success in prenatal identification and treatment of infants born with hereditary birth defects. Then there was the women’s movement and Roe v. Wade. The decisions in Roe v. Wade and Doe v. Bolton provided further room to maneuver both in terms of prenatal diagnosis and in considering potential therapies. Justice Blackmun, writing for the Court in Roe, disputed the contention on the part of some states that their abortion statutes were enacted to protect prenatal life. He pointed to the absence of legislative history to support this claim and argued that most state laws were designed to protect the mother. Blackmun also noted that those states that had been called upon to interpret their laws in the late nineteenth century (at a time when lack of medical knowledge made abortion more dangerous than childbirth) focused on the public interest in protecting a woman’s health rather than in preserving an embryo or a fetus. Little noted in the uproar that followed, the seeds of the anti-abortion movement and its conception of legal rights for the fetus were in the decision itself. Justice Blackmun’s opinion gave the fetus official recognition in public policy and law. It also set off the movement that would be known by images of “the unborn.” His trimester scheme and the politics that followed are remarkable examples of law transforming life in the most basic senses. But cultural commentary and the political divide over abortion overshadowed this development. The emergence of a new actor on the political stage came during a deep political divide filled with rhetorical hyperbole. On the one 9. Kristen Luker, Abortion and the Politics of Motherhood (Berkeley and Los Angeles: University of California Press, 1985).

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hand, the joy at the liberalization of abortion from a movement that would call itself “pro-choice” actively ignored the humanity of the fetus. There was no joy in the anti-abortion horror at what would be allowed in the first few months of pregnancy, but the campaign for fetal life elevated the fetus to the status of poster child for the self-styled “pro-life” movement. And, while the fetus as a figure initially seemed more distressed than empowered, looking back, it is hard to deny the political prominence of this newcomer in the last quarter of the twentieth century. The Roe decision made the new technological setting a central feature when it held that “any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous to forego it, has largely disappeared.” The Court went on to say: For the stage subsequent to viability, the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life and health of the mother. Similarly, in Doe, the Court accepted the proposition that the Georgia statute was concerned with “the mother’s rights, not those of the fetus.” As a result of the 1973 opinions, state policy would depend on: (1) the safety of abortions in the first trimester relative to the safety of childbirth; (2) the determination of the fetus’s viability; and (3) the capacity to know the condition of the fetus. Given the technological framework of the opinion, it is not surprising that technology related to abortion became a subject of controversy. The legal environment immediately following the 1973 decisions supported technological development under a broad view of a woman’s right to abortion. Initially, the opinion presented no legal impediment to the development of prenatal diagnosis, but the pattern of technological change in the years that followed would be subject to nuances in the Court’s opinions and the political reactions it produced. When the justices expanded a woman’s right to abortion, they implied, for the first time, that “fetal rights” could be a legitimate concern. The Supreme Court also suggested that technological change might shift the historic balance between the rights of the mother and the legal status of the fetus. Although not making the point explicitly, the Court expressed an interest in the legal status of fetal life. During the late 1960s and early 1970s, when funding for national health research increased on the average of 10 percent annually, genetic research was thought to be making more dramatic strides than “any of the sciences,” according to the director of the National Institutes of Health (NIH) at the

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time.10 Therapeutic goals stimulated basic research bearing on prenatal diagnosis, and the capacity of women to choose early termination of pregnancy was initially fostered by clinical practices with little interference from the state. Immediately after Roe, abortion became a therapeutic option that might be chosen in order to avoid having a severely challenged child. America’s investment in most scientific research would level off after 1970, but support for biomedical, and especially genetic, research continued to grow during the period immediately prior to Roe. Pregnancy was drawing increasing attention from researchers as well as lawyers. Research awards through the National Institute of General Medical Services (NIGMS) stimulated the development of amniocentesis at the same time that states were liberalizing their abortion laws. Funding for research on this form of prenatal diagnosis, albeit not very high initially, nearly doubled in the years before Roe.11 In 1974, the year after the decision, it had peaked. While, for the scientist, policy influences are always questioned, the awards and the interest in a new technological capability reflected the climate of opinion on abortion and decisions by the Supreme Court. Grants supported such investigations as “culture studies of inborn metabolic error,” for which over $150,000 went to Yale in 1973. This study aimed at “further evaluation of the application of somatic cell genetics to the antenatal and postnatal diagnosis of human disease.”12 Similarly, $500,000 was given in 1974 to the University of Colorado for research to establish the relationship between genes and retardation, and Stanford got a small award to apply amniocentesis to antenatal detection of sickle cell anemia. In addition, large grants were given for the development of combined clinical and research facilities such as the Clinical Genetics Center at Mount Sinai School of Medicine.13 Since fetal therapy was limited, the capacity to predict severe defects raised the possibility of abortion. More specifically, the National Genetic Diseases Act of 1975 included the possibility of abortion. Testifying in behalf of the act, Jean Horrobin from the Minnesota Human Genetics League reviewed the expanding capabilities in genetics defects diagnosis and counseling, and she expressed her hope that abortion would be an option. Kay Katz, the mother of a TaySachs child, supported her. Within the year, opponents of abortion emulated this highly per10. D. S. Frederickson, NIH hearings before a subcommittee of the Committee on Appropriations of the House of Representatives, 95th Congress, 1st Session, 1977. 11. The increase was steady, with thirteen grants awarded in 1970, fifteen in 1971, nineteen the next year, and twenty-one in 1973. 12. Notice of Research Project, No. 1AM-12579–5, Smithsonian Science Information Exchange, Inc., Washington, D.C., 1973. 13. Research Awards Index, Washington, D.C., HE. Public Health Series (1973–77).

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sonal appeal by depicting fetuses in cherubic images. The abortion option, which initially stood as a humane reaction to knowledge that an afflicted fetus could not survive, came to stand for disregard for fetal life in the eyes of the “pro-life” movement. By 1976, the Hyde Amendment, withdrawing funds for abortion, reflected the government’s changing sentiment toward the constitutionally protected right to terminate a pregnancy. And in 1981, portions of the Genetic Diseases Act were repealed. Among the sections removed were policies permitting the secretary of Health and Human Services to “disseminate information on genetic diseases.”14 More than $9 million previously authorized for genetic disease research grants in fiscal year 1982 was also rescinded. Outside government, the March of Dimes was the most visible contributor to genetics research. Because of its reliance on contributions, the commitment of “the March” to genetic counseling and diagnosis shows how acceptable this research was during the late 1960s and early 1970s. Since the policies of the March of Dimes are directly tied to public attitudes, there are sometimes dramatic consequences. The “March” withdrew its support for amniocentesis as an aspect of its “March Against Birth Defects,” indicating how public attitudes and policy have played on the development of prenatal diagnosis. Following basic research done largely while abortion was illegal, amniocentesis underwent experimental introduction to populations–at risk around the time the Supreme Court was taking jurisdiction over the termination of pregnancy. In 1976, seven years after the procedure was first described in medical journals, federal agencies concluded that amniocentesis was no longer experimental. The results of a collaborative study of more than 1,000 cases indicated its safety and reliability, and The New York Times reported on government support for the procedure as well as satisfaction with the results of past funding. A technique that had only existed “in the realm of a research procedure” became “a part of clinical practice.”15 Financial support for prenatal diagnosis in the 1970s was not limited to procedures that would lead to abortion. Abortion was considered an option for Down syndrome or TaySachs, but programs described in the Public Health Reports included the education of persons at risk for genetic defects and the determination of fetal health in ongoing pregnancies. Thus, in the mid-1970s the Public Health Service supported further basic research on birth defects, largescale screening programs, and efforts to inform physicians 14. USCA 42 Section 300b 1–6, Supplement (1991): 884–890. 15. T. M. Powledge, “Amniocentesis: Checking on Babies Not Yet Born,” The New York Times, April 4, 1976, IV, 16; T. Cooper, “Implications of Findings from the Amniocentesis Registry for Public Policy,” Public Health Reports 91 (1976): 116–117.

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about the availability of amniocentesis. The government had made a policy commitment to prenatal diagnosis. In seeking to generate use, a study reported in the Journal of the American Medical Association suggested that “a carefully coordinated program can reduce the risk” of the procedure and thereby enable physicians to use it.16 The researchers found that in 10 percent of the cases in which amniocentesis was performed, there was no preliminary counseling of patients or consultation with medical center staffs. Consequently, procedures were carried out on the basis of what the authors felt to be “unjustifiable” or “very dubious” indications, and “could have been avoided with proper counseling.”17 The recommendation was for a program that would make prenatal diagnosis available to those who might benefit from it. But, the program also sought to learn what constituted sufficient risk to justify the procedure. While amniocentesis became the most frequently adopted method of prenatal diagnosis, other methods of genetic testing were widely used to inform prospective parents about the condition of an unborn child. Diagnostic ultrasound, for instance, has long permitted reliable diagnosis of prenatal disorders.18 One benefit of ultrasound is that it is a noninvasive procedure. This reduces the risk of fetal death that is associated with amniocentesis and biopsy procedures. Another benefit of ultrasound is that it provides a visual image of the fetus. Here, organ defects that are not evident in the amniotic fluid can be detected.19 In addition to these benefits, ultrasound is used in conjunction with amniocentesis or other sampling techniques such as chorionic villus sampling (CVS) as a visual guide to avoid fetal injury during these more invasive procedures. In the late 1980s, following several years of developmental trials, CVS, which samples the chorion or immature placenta much as amniocentesis samples the amniotic fluid, began to be accepted as an alternative to amniocentesis. By the early 1990s, the procedure permitted the earliest detection of some genetic defects and subsequently the earliest and safest abortions. CVS can be performed following either “the eighth week of gestation or once there has been clear identification of fetal cardiac activity.”20 This could be as early as eight to ten weeks into the pregnancy. As with amniocentesis and other 16. A. Goldstein and K. Dumars, “Minimizing the Risk of Amniocentesis,” Journal of American Medical Association 237 (1977): 1336–1338. 17. Ibid. 18. Ian Porter, Perinatal Genetics: Diagnosis and Treatment (Orlando, FL: American Press, 1986), 287. 19. Agneta Sutton, Prenatal Diagnosis: Confronting the Ethical Issues (London: Linacre Centre for the Study of Ethics in Health Care, 1990), 36. 20. Porter, Perinatal Genetics, 99.

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invasive procedures, risk is involved. Data compiled by the World Health Organization estimated the risk of fetal loss due to CVS at 4 percent. This was substantially higher than amniocentesis.21 The ability of medical technology to detect genetic defects in the first trimester is significant not only medically, but also legally and socially. Current constitutional law still guarantees the right to a first-trimester abortion. In question, however, is the effect that technology will have upon the definition of viability and the use of trimesters in the Roe decision to weigh the state’s interest in protecting the fetus. On a social plane, parents are now afforded the opportunity to abort before the pregnancy has become obvious to others. This may relieve some stresses, from feelings of guilt to the difficult explanations sought by friends and family in late terminations. And, of course, any decision since the Supreme Court legalized abortion needed to include the prospect of confronting anti-abortion demonstrators such as Operation Rescue. On the other hand, the fact that diagnostic techniques such as amniocentesis and CVS allow early termination of a pregnancy is not likely to mean that the average gestational age before abortion in the entire population will be substantially reduced. Since 1980, fetal age at time of termination has remained “generally stable,” and abortions based on prenatal diagnosis, regardless of technique, accounted for only one-tenth of 1 percent, on average, of annual abortions in the 1980s.22 In addition to Tay-Sachs disease and Down syndrome, well-known genetic diseases for which prenatal diagnosis is conducted, there are a host of diseases or conditions passed on by sex-linked genes. Women are protected from recessive X chromosome effects because a second X chromosome will carry the dominant healthy gene. Men, however, have only one X chromosome, and if it is a defective gene, there is no healthy dominant gene on the Y chromosome to shield it from the recessive gene’s effects. According to the laws of genetic inheritance, this means that if a particular mother carries the recessive gene for hemophilia or Duchenne muscular dystrophy, for example, then each son has a 50 percent chance of suffering from the disease, and each daughter has a 50 percent chance of being a carrier. While these probabilities 21. Using ultrasound guidance to insert a catheter or needle, syringe suction extracts approximately twenty milligrams of tissue from the chorion, enough to perform a wide range of genetic tests and chromosome analysis a few hours after the biopsy. While discomfort experienced by women undergoing CVS appeared to be no greater than that experienced by women undergoing amniocentesis, atypical blood clots and fluid collections were occasionally noticed in CVS patients only. A. Sutton, Prenatal Diagnosis: Confronting the Ethical Issues. London: Linacre Centre (1990), 30–31. 22. Except for an increase of 15 percent in the proportion conducted at thirteen to fifteen weeks. S. K. Henshaw, et al. “Characteristics of U.S. Women Having Abortions,” Family Planning Perspectives 23: 75–81 (1991), 83; Patrick Sheeran, Women, Society, the State, and Abortion: A Structural Analysis (New York: Praeger, 1987).

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can add to a prospective parent’s difficulty in choosing whether or not to terminate a pregnancy, the capacity to know which fetuses are carriers is a dramatic new development resulting from improved diagnostic technology. With markers for some of these genes, such as Duchenne muscular dystrophy, fragile X syndrome, and hemophilia, a couple need not run the risk of aborting a healthy fetus. Sometimes a couple’s overwhelming desire to have a child overrides genetic considerations, but many will choose to abort an affected fetus. An additional issue is that because amniocentesis and CVS both reveal the sex of the fetus, some people have been afraid that there might be a demand to use the techniques to choose the sex of a child. In fact, this demand may have led to the research developing the CVS procedure itself. Medical researchers in China and the Soviet Union began to formulate the technique specifically as a means of prenatal sex determination. European physicians continued their work in the pursuit of a first-trimester method of detecting genetic defects. With China’s one-child-per-family policy, and overpopulation problems in the Soviet Union, male children assumed an even more prestigious role than female children. In the mid-1970s, a world conference on prenatal diagnosis united the medical community against “prenatal sex determination with the objective of aborting the fetus if it is not of the desired sex.” There is some evidence that these practices continue in India.23 In the United States, sex selection is not held to be a moral reason for abortion, and states such as Pennsylvania prohibit induced abortion for that purpose alone.

Litigating Life Amniocentesis and related prenatal diagnostic techniques challenge traditional notions of legal responsibility. Since these techniques may affect the decision to bring a child into the world, they operate at the boundary of what we think of as “being alive.” Results from amniocentesis were not initially available until at least the seventeenth week of pregnancy. This was very close to the legal limit for abortion in many states. Recent advances move the time up to the fourteenth week. But it is still late enough to cause social if not legal problems. By the time the results of amniocentesis are available, a mother may be showing that she is pregnant. She may be wearing maternity clothes, and she, and others, can feel the fetus move. When information about a serious disease is obtained this late in a pregnancy, the moral dilemma over abor23. Odesa Gorman-Stapleton, “Prohibiting Amniocentesis in India: A Solution to the Problem of Female Infanticide or a Problem to the Solution of Prenatal Diagnosis,” ILSA Journal of International Law 14 (1990): 23–43.

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tion becomes all the more intense. Here, both law and social issues heighten demand for accurate early diagnosis. Among the odd configuration of issues is legal responsibility on doctors to prevent harm that comes from being born with serious physical challenges. Early in the history of amniocentesis, ethicists confronted dilemmas generated by pregnancies that would produce children with severe disabilities. The intersection of law and technology produced a new profession, genetic counselors. Patients are expected to understand what feels like a complicated array of possibilities when the knowledge from genetic testing is revealed. This includes the fetus’s chances of leading a productive life, the extent of a particular defect, and the risk associated with treatment. Providing this kind of information, and the context in which it can be acted upon, has become the professional responsibility of genetic counselors. Traditional common law doctrine holds that people are not responsible for preventing harm when the risks have been taken on voluntarily and with reasonable knowledge. While laws prohibit a physician from substituting his or her judgment for that of the patient, the line between necessary advice and coercion is vague. As a profession, genetic counseling has been organized around nondirective practice. Counselors provide information about test results and statistics about what they mean.24 They offer options for treatment, but are expected to leave the ultimate decision in the hands of the patient. The fact that they provide a nondirective service constitutes a slim escape route should a client later determine that her counselor somehow misdirected her. A concern that surfaced after the first ten years of experience with amniocentesis involved the fear that doctors might use invasive diagnostic procedures as precautions in order to avoid malpractice, not malformed fetuses. Prenatal diagnostic techniques and their acceptance as “normal” medicine have been stimulated by rulings on physicians’ liability for “wrongful life,” the legal judgment that places responsibility for birth defects on prenatal medical care. As early as 1975, in Jacobs v. Theimer, the Texas Supreme Court held that the parents of a child with a disability had a cause of action for damages against a physician for failure to inform the mother that she had contracted rubella, with its known risk of producing birth defects, during pregnancy. The physician’s involvement took place while abortion was illegal; the decision, however, was written when the legal right to therapeutic abortion was most fully protected. A number of lower courts applied the case to instances where new technologies could have revealed an afflicted fetus 24. See Lori B. Andrews, Jane E. Fullarton, Neil A. Holtzman, and Arno G. Motulsky, eds, Assessing Genetic Risks: Implications for Health and Social Policy (Washington, DC: National Academy Press, 1994).

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if they had been employed. In a decision by the New York Supreme Court, 25 parents of infants born with severe medical problems won substantial rulings against physicians on the basis of the wrongful life claim. In these cases, legal standards of responsibility were closely associated with available technology. These standards are the result of increasing diagnostic capacity and suggest that parents can legally claim adequate genetic counseling and screening from their doctors. Law related to expanding prenatal diagnosis turns in part on the treatment of viability. Here, the tendency has been to leave the decision on viability to physicians. As early as 1976, in the Danforth decision, the Court prohibited legislatures from fixing viability at an inflexible point in gestation. Medical ethicists and physicians have created their own set of conditions to determine the moral justification of third-trimester abortions. One study suggests establishing, before performing an abortion, that the fetus is afflicted with a condition that is either incompatible with postnatal survival of more than few weeks or characterized by the virtual absence of cognitive function .26 Although somewhat ambiguous, these moral conditions appear to be widely followed, as evidenced by the small number of clinics and hospitals willing to perform third-trimester abortions. Still, the controversy over abortion leads many states to monitor abortions performed around the point of viability. Because the results of amniocentesis now become known earlier and earlier, physicians may well hesitate, under the circumstances, to utilize the technique. And this is despite the fact that prenatal diagnosis may, in the aggregate, protect fetal life by providing the knowledge that—in most cases—the child will be healthy.27 “Wrongful life” is an odd idea, and judges have denied that an unborn child has a cause of action against the medical community for damages as a consequence of being born. In Gleitman v. Cosgrove, wrongful life was not recognized because of an inability to determine the value of no life whatsoever compared to that of an impaired life. In Howard v. Lecher, a New York court proclaimed there was “no proximate cause of an injury cognizable at law” by a physician who did not discuss genetic risk, perform prenatal diagnosis, or suggest abortion for a woman considered at high risk of delivering a child with Tay-Sachs disease. Curlender v. Bioscience Laboratories, a California case, established that labs performing genetic testing owe a duty to parents and their unborn child to use ordinary care when administering a 25. Park v. Chessin, 400 N.Y. 2d 846 (1975). 26. Such criteria are met in instances such as anencephaly and other neural tube defects that result in certain infant death (Sutton, Prenatal Diagnosis, 118. See also Porter, Perinatal Genetics, 285). 27. Eve K. Nichols, Human Gene Therapy (Cambridge, MA: Harvard University Press, 1988), 42.

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procedure. In this case, the definition of wrongful life was changed to include the “right of such a child to recover damages for the pain and suffering to be endured during the limited life span available to such child and any special pecuniary loss resulting from the impaired condition.”28 The courts are always more willing to accept claims based on a physician’s duty of care that includes the use of medically established procedures such as amniocentesis and ultrasound.29 This is evident in a shift from “wrongful life” to “wrongful birth” claims, providing a cause of action to parents seeking relief from economic and emotional hardship. State courts have recognized a legal claim, by parents, of injury caused by being “deprived of the option of making a meaningful decision as to whether to abort the fetus” and that parental mental and emotional anguish was an appropriate measure of damage for the purpose of compensation.30 The court’s rationale here was that a claim must be allowed in order to guarantee that patients are receiving care that conforms to standard practice. In 1988, the Fourth Circuit held in Gallagher v. Duke University that parents could sustain a cause of action for medical malpractice based on a claim of wrongful conception, and could receive damages for the cost of raising their child. 31 The Gallagher family of North Carolina had already lost one child and decided to consult with their physician and a cytogeneticist before having more children. The family was told that their first child did not have a genetic deficiency and that subsequent children would not suffer from the same deformities. As a result, the parents did not undergo genetic testing themselves and were told that an amniocentesis would be unnecessary. Their second daughter was born with the same medical problems as their first child, and later medical testing determined that Mr. Gallagher carried a trait leading to these deformities and that the initial test results on cells taken from the first child were faulty. Amniocentesis could have detected this problem. A wrongful conception case allows a court to look directly to the injury done to parents in order to indirectly provide for the child. Unlike wrongful life and wrongful birth claims, the court in a wrongful conception case is not asked to determine the value of life with a physical or mental disability as compared to no life at all. Rather, the court must examine the duty of care provided to the parents during the preconception counseling period. The court

28. Curlender v. Bioscience Laboratories, 165 Cal. Reporter 477 479 (1980). 29. J. Douglas Butler and David Walbert, eds., Abortion, Medicine, and the Law, 4th e. (New York: Facts on File, 1992); see also George J. Annas, Standard of Care: The Law of American Bioethics (New York: Oxford University Press, 1993). 30. Berman v. Allan, 404 A.2d 8 9 (1979). 31. Gallagher v. Duke University, 852 F.2d 773 (1988).

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in Gallagher held that the doctor “must provide the professional services in th[e] case” where a woman may seek to avoid pregnancy, and when negligent in providing those services, should be found liable for medical malpractice.32 These holdings with regard to liability and damages may have an effect on preemptive measures taken by physicians, such as requiring genetic testing of couples under their care prior to conception and before agreeing to offer care throughout the pregnancy. Similarly, parents may request genetic testing more frequently in order to have a judicial remedy at their disposal should their child be born with a genetically caused disability. The Supreme Court remained favorable to abortion into 1976 when statutory consent requirements were established in Planned Parenthood of Central Missouri v. Danforth. Nevertheless, there were clearly problem areas. One such area—which was implicit in the very structure of the decisions in Roe and Doe—allowed restrictions to be imposed at the point of viability. The chief justice in Eisenstadt v. Baird noted that ongoing difficulties are bound to occur where laws are tied to scientific advances. Thus, the “last trimester” begins at a point that may well be pushed back toward the beginning of pregnancy as medical science develops its capacity to care for the premature infant. Power on the Court was shifting during this period toward the interests of a fetus and against the interests of a pregnant woman. The Supreme Court moved from its holding in Roe, with twenty-four to twenty-six weeks’ gestation as the basis for viability, to a less specific “viability” language—one presumably less tied to law and more closely linked to medical determinations. This was one of the most significant determinations in Planned Parenthood v. Casey, the 1992 case that narrowly upheld constitutional protection for abortion. The case contained the surprise coalition of Justices O’Connor, Kennedy, and Souter to protect Roe. Many of the judicial and legislative restrictions relating to abortion imposed after Roe and Doe reflect this concern for the fetus. State attempts to proscribe abortion have taken the form of “conscience clauses,” which permit institutions to deny the use of their facilities for abortion. In addition, some state legislatures and the federal government have made the live aborted fetus a ward of the state, restricted experimentation on aborted fetuses, and limited research on the fetus prior to abortion. The decisions of the Supreme Court, in legalizing abortion, served to catalyze a response that became a fearsome political movement focusing on the fetus through the late 1970s and 1980s. The controversy also produced new situations that came back to the Supreme Court. 32. Ibid., 775.

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Soon after genetic counseling joined other medical providers to constitute the decision matrix of expectant parents, courts began to define their limits. In 1990, a United States Court of Appeals in Boston decided that a federal prohibition of nondirective abortion counseling or referral merely “enlarged the degree of financial and physical separation required between federal and non-federally funded activities.” The court held that this posed “significant obstacles to the decision of clients . . . to terminate pregnancy” and was unconstitutional.33 The state argued that personnel working in facilities receiving federal grants could maintain a neutral role and facilitate discussions not offensive to government policy. One year later, however, the Supreme Court decided in Rust v. Sullivan (1991) that Department of Health and Human Services regulations preventing Title X projects from “engaging in abortion counseling, referral, and activities advocating abortion as a method of family planning” were reasonable and constitutional because they did not “impermissibly infringe upon the doctor-patient relationship” or the right to decide whether to terminate a pregnancy. Rescinding this “gag rule” was one of the first acts of the Clinton administration. The Sullivan regulations limited the options that genetic counselors may discuss with clients whose fetuses may be suffering from grave genetic defects. In Justice Blackmun’s dissent in Rust, the “gag rules” were found to have both the “purpose and effect of manipulating a woman’s decision” by regulating the dialogue between counselor and client.34 One limit on these regulations as they are applied to genetic defects and abortion counseling lies in the Court’s determination that they do not bar “counseling where a woman’s life is placed in imminent peril by her pregnancy as such counseling could not be considered a method of family planning.”35 If the Court is willing to view abortion for reasons of severe fetal deformity as outside the family-planning realm, perhaps some funding can be restored to Title X programs.

Legislating Life In response to Casey, the House and Senate considered what was known as the Freedom of Choice Act. In 2008, the pro-choice community was still pushing the legislation. This bill would codify the holdings of Roe v. Wade and forbid states to restrict abortions in most cases.36 Should the Supreme Court change 33. Massachusetts v. Secretary of Health and Human Services, 899 F.2d 53 (1990). 34. Rust v. Sullivan, 111 SCt. 1759 1785 (1991). 35. Ibid., 1742. 36. The Pennsylvania case revolved around the state’s 1986 Abortion Control Act, which, among other things, requires that a woman wait twenty-four hours after deciding to have an abortion to have

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its position, the Freedom of Choice Act would codify the original values in Roe v. Wade. Organizations such as the National Organization for Women (NOW) and the National Abortion Rights Action League (NARAL) have focused attention on the Choice Act. Although the Pennsylvania decision did not directly address the question of abortion in cases of fetal deformity, some states have legislated on this subject. For example, Maryland decided in 1991 that abortion is legal “until fetal viability, and beyond that point if the life or health of the woman is endangered or if the fetus is deformed.”37 Somewhat less ambiguous wording is found in West Virginia’s abortion-funding legislation that notes that abortion must be available in case of “grave, permanent, and irremediable fetal mental or physical defects.”38 Similar legislation has also been approved in Idaho, Utah, Colorado, Iowa, and Virginia. At the federal level, debate has been even more intense on the issues surrounding use of fetal tissue in therapeutic transplantation. In June of 1992, Congress voted overwhelmingly to lift the government’s ban on the use of aborted fetuses in research. President George H. W. Bush promptly vetoed the legislation, and his veto was sustained. As a candidate, Bill Clinton stated, during his first campaign, that he would restore fetal tissue research by executive order if elected. Various laws, in conjunction with effectively organized resistance to abortion, have affected the meaning of fetal life. The major consequences for prenatal diagnostic technology are limits on funding, research, and knowledge about the procedure. All of these limit the availability of amniocentesis and affect fetal life. Initially, the question of Medicaid funding remained in limbo, while the Court supported the abortion right against early challenges. But, on June 20, 1977, in Beal v. Doe and companion cases, the Supreme Court upheld action by the states to limit the expenditure of Medicaid funds for “unnecessary” abortions. Congress had passed the Hyde Amendment to Title XIX of the Social Security Act, limiting federal expenditures for abortion in 1977. The amendment stated that Medicaid funds may not be used for abortion unless the procedure performed, submit to a viability test if warranted, and notify her parents if under the age of eighteen. One clause declared unconstitutional by the U.S. Court of Appeals would have required a woman to notify her husband and be able to prove this notification if asked to do so (Congressional Quarterly Weekly Report, “House Resolution 2507,” February 8, 1992: 309–310). 37. Terry Sollom, “State Legislation on Reproductive Health in 1990: What Was Proposed and Enacted,” Family Planning Perspectives 23 (March/April 1991): 83; see also, NARAL, Who Decides? A State by State Review of Abortion and Reproductive Rights (Washington, DC: NARAL Foundation, 1999). 38. Ibid.

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“the life of the mother would be endangered if the fetus were carried to term,” or in cases of rape or incest, or “where severe and longlasting physical health damage to the mother would result if the pregnancy were carried to term.” Implementation of that cutoff was blocked in the district court, pending review. The Supreme Court ruling in Beal v. Doe put the Congress, especially the Senate, on the spot, and led to a protracted struggle, with failure to agree on this budget item for two months after the fiscal year had started. During the controversy, the secretary of Health, Education, and Welfare warned that no national health insurance plan could be expected to cover abortion. In Harris v. McRae (1980), the Supreme Court held that the Constitution does not guarantee an abortion, although it prohibited the states from restricting its availability entirely. One of the most dramatic moves against funding for research and genetic counseling in the area of prenatal diagnosis was the cutoff of grants for genetic services by the March of Dimes Foundation. The foundation had been a major source of funding in the United States for nearly a decade. The funding in question supported diagnostic programs for birth defects, and its withdrawal affected research aimed at identifying forms of genetic disease not yet diagnosable prenatally. The cutoff was announced in January of 1978, and controversy arose in March of that year regarding the decision. Antiabortion groups opposing support for prenatal diagnostic services are believed to have inf luenced the March of Dimes decision. Grantees and other investigators made that charge. These reports suggested that the opposition by antiabortion groups to funding is based on their perception of a link between amniocentesis and abortion. Judie Brown, public relations representative for the National Right to Life Committee in Washington, was quoted in 1978 as saying that her organization opposed foundation programs in which testing leads to abortion. She denied, however, that the Right to Life Committee had been responsible for the funding cutbacks, adding that her group had a good relationship with the March of Dimes, which she looked forward to continuing.39 Spokespersons for the March of Dimes Foundation also denied that the cutoff of funds was in response to pressure from antiabortion groups. Dr. Arthur Salisbury, vice president for medical services, said that the decision stemmed from the foundation’s policy of providing “seed money” to establish programs and then bowing out in five years. He described the genetic services programs as having reached that time limit. While acknowledging a reduction of $300,000 in this area, and the cutting of 39. “March of Dimes Group Declares Genetic Program Aid Will Go On,” The New York Times, March 15, 1978, A20.

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funds to a number of counseling centers, the March of Dimes contended that it would continue to support basic research.40 Many of the affected programs were reaching the fiveyear limit, but a cut of this size in one year left doubts about the public explanations. March of Dimes officials admitted that antiabortion groups had written both to volunteers and to officials about their objection to amniocentesis. Charles Massey, president of the March of Dimes Foundation, expressed interest in public funding, urging Congress to reenact the National Genetic Diseases Act (PL 94278), which was first passed in 1975 to permit federal funding of genetics centers, and he promised to resume support for the centers if public funding was not forthcoming.41 This stance seemed to many opponents of the pro-choice groups, and to researchers in the field, to contradict the claim that the March of Dimes funding had merely been “seed money” and that the programs were now well established. With the federal government sensitive about policy on abortion from the mid-1970s to the late 1980s, there were effects on the availability of funds for related issues. Sensitivity about genetic screening transcends abortion, but federal funding in a number of areas bearing on prenatal diagnosis has been influenced by the controversy. Basic research grants in support of diagnostic technologies peaked the year after the Supreme Court’s decisions in Roe and Doe. Two fewer grants were given the following years, and the number was down to fifteen by 1976 according to the Research Awards Index of the Public Health Service (1973–1977). Although there is evidence that experience with prenatal diagnosis was such that a major push was not needed, nevertheless the procedures were not so fully developed that work could continue without significant financial commitment. The circumspection of those who work in the area is as revealing as the figures. When Dr. Ruth L. Kirschstein, director of NIGMS, testified before a House subcommittee in March 1977, she faced a question from Representative Daniel Flood, who, until he resigned after pleading guilty to charges related to campaign financing, was one of the most vociferous opponents of abortion in Congress. He inquired about advances in prevention and control of genetic disease. Dr. Kirschstein’s response described the technique of amniocentesis and concluded with this observation: Based on that, there would be ability to diagnose whether or not the child that is to be born is indeed suffering from genetic disease. A great deal of this activity has been possible based on the basic research in 40. “March of Dimes Denies It’s Ending Genetic Work,” The New York Times, March 10, 1978, D14. 41. “March of Dimes Group Declares Genetic Program Aid Will Go On,” The New York Times, March 15, 1978, A20.

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genetics which has been performed by the NIGMS grantees both in individual grants and also through the genetics research centers which combine basic and clinical research activities.42 Her response carefully skirted the possibility of therapeutic alternatives following the discovery of a genetic defect. She was not pressed by Flood, but this was the year before the relationship between birth defects and abortion surfaced in the March of Dimes controversy. Similarly, an article in The New York Times in February 1978, described the prevention of retardation through the application of amniocentesis without mentioning abortion.43 Funding for programs of the NIGMS dealing with genetics dropped almost 10 percent between 1974 and 1975, reflecting the drop in the number of awards. Hemophilia research had received the major share of this agency’s funding five years ago, but as the technology has expanded, sickle cell anemia and other genetic disorders have been included. The first year in which project grants were awarded to support comprehensive diagnostic and treatment centers was 1977. The sum of $3 million was appropriated for this service in that year, with a drop to $2,538,000 in 1978. In 1979, the hope was for a grant of $7 million that would have replaced the funds withdrawn by the March of Dimes. By 1980, however, funding was at only $1,866,000 and would actually drop to $300,000 the following year. Overall funding for genetics increased to $95 million in 1980, but the policy of the institute had begun to reflect a shift away from single-gene diseases to those arising from a “whole complex of genes,” perhaps revealing a sensitivity to the association of single-gene diseases and their therapies with single-issue politics. Twenty-two states passed statutes limiting fetal experimentation in the wake of Roe v. Wade. These laws restrict diagnostic procedures and control research on fetal remains more carefully than on human corpses. Although health planners understand that fetal research leading to perfection of amniocentesis could avert abortions that might otherwise be performed out of fear of birth defects, public concern for the fetus has led to serious restrictions on research. In 1974, Congress excluded “nontherapeutic” fetal research from funding by the Department of Health, Education, and Welfare, and set up a commission to study “the conditions, if any, under which research involving the living human fetus is suitable for support.”44 The commission recommended that the moratorium be 42. Ruth Kirschstein, Hearings before a Subcommittee of the Committee on Appropriations of the House of Representatives, 95th Congress, 1st Session. 43. “Statement by Milunsky, A.,” The New York Times, February 19, 1978. 44. H. Schmeck, “Member of Fetal Research Panel Objects to Some Proposals,” The New York Times,

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lifted immediately, and found that “it has been interpreted so broadly by the scientific community that virtually all fetal research in the United States has been brought to a halt.”45 That year, Kenneth Edelin, a prominent Boston doctor, was prosecuted for manslaughter in the “death” of a fetus following an investigation of fetal research conducted by doctors at the Massachusetts General Hospital.46 Funding restrictions for studies involving the use of live fetuses and embryological research began in the late 1970s, and culminated in the Reagan administration’s moratorium on fetal tissue transplantation research, which was thought to aid persons suffering from Parkinson’s disease.47 Doctors also claim to possess the knowledge to determine a host of genetic abnormalities at “less than two weeks gestation which would allow couples to use in vitro fertilization to avoid bearing afflicted children and without having to resort to abortion.”48 Additionally, it has become possible to determine fetal sex at three days’ gestation, allowing parents who are carriers of sex-linked disorders to use in vitro fertilization to select unaffected female embryos for implantation. These remarkable advances, however, have not yet been perfected, at least in part because federal funding is so limited. Breakthroughs such as these could be recognized for their potential to reduce the need for abortions, in the long run, based on prenatal diagnosis results because the fetal condition can be avoided altogether. Currently, however, these techniques are viewed as abhorrent to the pro-life movement that is convinced that the abortion rate will increase should such procedures be offered on a widespread level. Although the actions of the Reagan and Bush administrations restricted the use of funds for fetal tissue research, small amounts of money that might have once supported techniques such as amniocentesis were channeled into early childhood public health and long-term genetic projects. For example, the fiscal year budget for 1992–1993 estimated that there would be a 17.5 percent increase in spending for childhood immunizations to $349 million. Also, a project called Healthy Start was allocated $143 million in funds. Finally, the Human Genome Initiative, an intricate gene-mapping project initiated in the 1980s at the NIH, was given $175 million in new spending, a 7 percent

May 21, 1975, C27. 45. Ibid. 46. John Brigham, Making Public Policy (Lexington, MA: Heath, 1977). 47. “Health and Human Services Budget FY 1992–1993,” Congressional Quarterly Weekly Report, February 1, 1992. 48. Patricia Donovan, “Funding Restrictions on Fetal Research: Then Implications for Science and Health,” Family Planning Perspectives, September/October 24, 1990, 224.

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increase from the 1991–1992 budget. This project is aimed not at eliminating genetic diseases but at achieving a better understanding of a complete human genome. Ten years ago, the benefits for combating chromosomal deformities or genetic abnormalities were not thought to be so far away.49 In early 1992, Congress attempted to restore funding in the area of fetal tissue transplantation research, with resolutions passing both the House and the Senate early in the year.50 Again, however, ethical and public policy considerations hampered these efforts as conservatives prohibited the use of tissue from elective abortion. Compromise was hard to come by on the issue, since scientists claim that due to the nature of spontaneous abortions, from miscarriage and ectopic pregnancies, the fetuses are typically unsuitable for testing. While Congress was unable to override a veto by the first President Bush, the climate under former President Clinton improved, and further advances in fetal research followed at this intersection of choice and science. The attention that was increasingly given to emergent life through the 1980s had a chilling effect on doctors who might have recommended diagnostic procedures that could eventuate in therapeutic abortions. This chill appears most intense where the political and social power of antiabortion groups is perceived. Although prenatal diagnostic techniques are on the rise, the availability of abortion and related services has been curtailed by the controversy. Since Roe, there has been a distinction, in practice, between the de facto and de jure status of abortion. One of the factors contributing to this state of affairs is cost; another is the willingness to provide the service. Doctors and health officials in western Massachusetts interviewed at the beginning of the pro-life movement reported that amniocentesis was not widely performed and that it was limited to regional centers because of the political climate on abortion. Only two obstetrical practices in Hampshire County were capable of performing amniocentesis in the late 1970s. Even practices that did perform amniocentesis said that they were hesitant to recommend the procedure for fear that it would encourage frivolous abortions. One doctor expressed a fear that if couples were told the sex of the fetus, the decision to abort would be based on sex preference rather than more acceptable factors. This doctor also indicated that any time a woman decided to undergo an abortion, the doctor might be held responsible by antiabortion groups if he performed amniocentesis. Such anxiety is a function of the controversy over abortion, where antiabortion groups subject clinics that per49. Jon Beckwith, “Foreword: The Human Genome Initiative: Genetics’ Lightning Rod,” American Journal of Law and Medicine 17 (1991): 1–14. 50. Congressional Quarterly Weekly Report, “House Resolution 2507,” February 8, 1992; April 4, 1992.

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form abortions to actions ranging from silent vigils to violent attacks and murder.51 The New York Times reported that “. . . only 25 to 30 percent of Westchester County women who needed to avail themselves of prenatal detection used these services.” The report noted that some women “. . . confuse the clinical issue of a procedure—amniocentesis—with what they see as the moral issue of abortion. Some women hear ‘amniocentesis’ and immediately think of abortion.”52 At least for a period after Roe, the practice of medicine in these two northeastern counties appeared not to have availed itself as fully as it might have of the existing technological resources. This is, of course, also a function of the cost and the special contexts required for tertiary care, but availability does appear to be correlated with the controversy over abortion. The rapidity with which a shift from the climate of liberalization fostered by the medical community to a climate of fear and hostility impinging on the medical and research communities underlines the necessity for understanding the implicit policy choices that are being made at all levels of the health care system. Political scientists exploring public knowledge about genetic screening have presented links between medical technologies and abortion. Using a national sample of adults, Timothy J. Ressmeyer examined the characteristics of individuals indicating a willingness to undergo genetic screening.53 Ressmeyer found a close fit between what he considered “abortion related variables” in the sample and the willingness to undergo screening. Eighty-one percent of those people who favored abortion chose to have genetic screening done. In addition, the inclination to have an abortion is the strongest indicator of a predisposition to have prenatal screening done. In the sample, over 40 percent of those who would not have an abortion would still have screening done, presumably out of deference to the authority of the medical profession. Ramifications for amniocentesis transcend the issues generally recognized by legislative partisans and will be felt by all prospective parents. Largescale screening programs designed to disseminate the technology and to share costs and risks were threatened in the early post-Roe years.54 Prior to Roe v. Wade, the future of prenatal diagnosis was assessed in the light of then 51. In addition, a check of standard prenatal workups showed that genetic information was not routinely obtained, and that the only question relevant to amniocentesis on these workups concerned the age of the woman. 52. R. Watson, “Prenatal Testing Is Called Underused,” The New York Times, January 27, 1980, 13. 53. Timothy J. Ressmeyer, “Public Opinion and Knowledge about Genetic Screening: The Link with Abortion” (paper, American Political Science Meetings, Chicago, September 3–6, 1992). 54. J. Friedman, “Legal Implications of Amniocentesis,” University of Pennsylvania Law Review 42 (1974): 156.

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current law, that is, the inability to provide the option of abortion: It is probably unjustified on ethical grounds to mount largescale screening programs for disease or carrier detection in conditions where the patient and carriers cannot be offered specific effective medical therapeutic alternatives, including intrauterine diagnosis and abortion.55 This statement reflects early consideration of the ethical issues, written when abortion was still illegal. By the 1970s, although health planners recognized that the abortion laws would have to be changed in order to accommodate prenatal diagnosis, they could not then have been aware of the extent to which legalization would create political pressure to limit development of new services.56 The laws on abortion—which initially spawned advances in prenatal diagnosis, while limiting its availability, ultimately inhibited further developments because of the feelings legalized abortion generated.57 This was evident early in discussion of mass screening where detection and genetic counseling were thought to be essential to screening programs. In those cases where a fatal or severely disabling defect is detected in a public program, it is essential that publicly funded abortion be an option.

Conclusion Technology is not autonomous. As it influences the social world, it is also affected. We have realized for some time that technology shapes our lives. It is harder to capture how tools themselves are constructed. Theories of autonomous technology and of conscious state intervention both miss the importance of the social and political context. Our tools are constantly being altered. We have drawn attention to some of the consequences of the connection between policy and technique. Public policy on birth technologies shows the influence of law. Abortion has not simply been an issue in the courts but has influenced government sponsored research. Techniques being perfected in the context of established policy create new policy issues while structuring

55. R. F. Murray, “Problems behind the promise: Ethical issues in mass genetic screening,” Hastings Center Report 2 (1972): 13. 56. Belinda Bennet, “Gamete Donation, Reproductive Technology and the Law,” in Intersections: Women on Law, Medicine and Technology, ed. Kerry Peterson (Aldershot, England: Dartmouth, 1997), 127. 57. When anti-abortion 2008 vice presidential candidate Sara Palin found out through amniocentesis that her fifth child would have Down syndrome, she spoke of being able to prepare herself and her family for his birth.

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their resolution.58 Law is implicit in this process. Thus, prenatal diagnosis developed in the context of the abortion question illustrates the relationships that obtain among science, law and politics. By observing technique and law as material life we are more likely to be able to understand our present and anticipate our future.

58. Abby Lippman, “Prenatal Genetic Testing and Screening: Constructing Needs and Reinforcing Inequities,” American Journal of Law and Medicine 17 (1991): 15–50.

3 H ABEAS C ORPUS

AT THE

T EMPLE

? Legal interpretation takes place on a field of pain and death. ROBERT COVER

J

ustice Thurgood Marshall lamented his timing on retiring from the Supreme Court by saying he couldn’t wait for a Democrat to be elected president because he was “. . . old and coming apart.”1 A few months later, Justice Harry A. Blackmun, speaking at Western New England Law School, reported his imminent departure from the Court, adding that although he wasn’t suffering from any serious illnesses, “There’s something physically wrong with all of us.”2 And, when Justice Byron White announced that he planned to retire, he said nothing about his own health but, instead, suggested the appeal of the “golden years” and the powerful draw of toddlers bouncing on his knee. The condition of the bodies on the Court and the stages they go through have special meaning for the institution. By appointment and life tenure, the Constitution takes significant steps to insulate the Court, and the law, from the vagaries of politics. But, given the nature of life, aspects of politics invariably become physical. Tenure for life was an old idea when it was applied to federal judges under the American Constitution. One proponent, Alexander Hamilton, made life tenure a key element of judicial power in The Federalist Papers. He argued, in #78, that:

1. “Mr. Civil Rights,” The New York Times, February 7, 1993; reviewing Carl T. Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall (Boston: Little, Brown, 1993); Michael D. Davis and Hunter R. Clark, Thurgood Marshall: Warrior at the Bar, Rebel on the Bench (New York: Birch Lane Press, 1993). 2. “Blackmun Sees Retirement Soon,” The New York Times, March 12, 1993. In the article, it is said that Blackmun indicated that he did not want to be asked to retire.

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The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government . . . [I]t is the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws. Hamilton’s well-known argument is that the judiciary would become “the least dangerous branch,” and he calls the “permanency in office” of judges the sine qua non of a limited government. John Marshall, a comrade of Hamilton’s in the Federalist cause, would spend much of his own life tenure in working to establish an influential judiciary based on the special character of judges when it came to interpreting the Constitution. Clearly, life tenure goes a long way to establish the independence that the Federalists sought and that we have come to accept in the American judiciary. Death as a punishment draws on some of the same traditional relations as the life tenure of justices. It requires a sense that legal authority is more than flesh and blood. Like the judge, the executioner wore a robe to cover his body, protecting the individual doing the deed and generalizing the punishment. In his book Death and the Supreme Court, Barrett Prettyman Jr. finds the decisions the justices make in death penalty cases to occupy a place in the Court’s business that exemplifies the institution in American legal culture. The Court is the embodiment of law, and Prettyman assumes cases will come to the justices. His interest is what they are willing to hear, and he concludes that it is challenging legal questions that get some death penalty appeals before the Supreme Court.3 This chapter explores mortality and individuality on the Supreme Court and the significance that bodily images of the justices have for law in general and the death penalty in particular. Where traditionally the physical body, with its needs and ailments, has not been emphasized as a factor for jurisprudence and public policy,4 contemporary commentary is more open and provides us with some remarkably suggestive ideas.5 When the Court’s legitimacy came from the claim in law to transcend the flesh, the judicial body—its health, age, race, or sex—had one set of implications. One sign was the robe covering the judicial body. This symbolic wrap stood in stark

3. A point also made by Lee Epstein and Joseph F. Kobylka, The Supreme Court and Legal Change: Abortion and the Death Penalty (Chapel Hill: University of North Carolina Press, 1992). 4. For a rare discussion of the health issue, see Merlo J. Pusey, “Disability on the Court,” Yearbook (Washington, DC: Supreme Court Historical Society, 1979). 5. Carol J. Greenhouse, “Just in Time: Temporality and the Cultural Legitimation of Law,” Yale Law Journal 98(1989): 1645.

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contrast, during the period of formal judicial authority, with the body of the condemned. Here, flesh and bone was brutally exposed and assaulted, viciously and symbolically.

Law’s Bodies The United States, Canada, and Australia practice judging according to the tenets of British law and along lines advocated by William Blackstone. Robes, wigs, and tenure for life sought to remove the body of the judge from the world, at least symbolically. With these artifacts, the mortal body is subsumed in the authority of the state. In the United States, life tenure for federal judges is the closest thing to royalty, and it is perhaps the most traditional institution under the Constitution. Law incorporates the wish to be ruled by something that stands apart or above, something other than flesh. Judges, our only policy makers with an official dress, according to Jerome Frank,6 have gone to great lengths to hide their bodies.7 But, the bodies are covered much less often than they used to be since modern jurisprudence attacked “the cult of the robe” and called attention to the reality of interests represented by the judge.8 Where legitimacy is drawn from a realist paradigm, the human body in law is more readily acknowledged. We have become aware of the religion, race, and gender of the justices, and it is possible in the United States to speak of a representative Supreme Court.9 Drawing attention to the bodies is a way of letting the people back into judging just a bit. In the end, jurisprudence must reflect the mix of law and flesh, ideas and humanity. In “Violence and the Word,” Robert Cover drew attention to law’s material consequences. According to Cover, “Legal interpretation takes place in a field of pain and death.”10 This is where words and the things join to become the force 6. Frank referred to “non-military government officials,” but given the outfits worn by the Forest Service, the National Park Service, and some others, “policy maker” seemed more accurate. See Jerome Frank Courts on Trial (Princeton, NJ: Princeton University Press, 1949), 254. 7. When Sandra Day O’Connor came on the bench, she did not hem her robe at the traditional floor length but rather just below the knee, the same length as her dresses. This made her body more prominent than that of her colleagues. 8. See John Brigham, The Cult of the Court (Philadelphia: Temple University Press), 63–91, for discussion of the transformation from the cult of the robe to the cult of the judge. . 9. Barbara A. Perry, A “Representative” Supreme Court?: The Impact of Race, Religion, and Gender on Appointments (New York: Greenwood Press, 1991). 10. Robert Cover, “Violence and the Word,” Yale Law Journal 95 (1986): 1595–1629, 1601. Judges are a core institution but not unique in their interpretive activity. He says, “. . . [T]he violence which judges deploy . . . engages anyone who interprets the law in a course of conduct that entails either the perpetration or the suffering of this violence.”

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of law. To Cover, discussing the interpretation done by judges, “. . . interpretive acts signal and occasion the imposition of violence upon others . . . somebody loses his freedom, his property, his children. . . .”11 Cover considers the judge when he is sentencing a convicted defendant. This institutional act reveals “. . . the way in which interpretation is distinctively shaped by violence. . . .”12 Here we are cautioned against believing that law’s inconspicuousness means there is anything “voluntary” about the activity. Thus, “. . . as the judge interprets, using the concept of punishment, she also acts—through others—to restrain, hurt, render helpless, even kill the prisoner.”13 Completing the bridge between the ideal and the real, radical feminists and Critical Race Theorists described a phenomenon similar to Cover’s in the “crunch” when bodies come up against legal institutions.14 Directing the jurisprudential gaze to the material in law brings “bodies” into view. Marbury v. Madison, while ultimately about whether a piece of paper was necessary to appoint a judge, was also about the absent John Marshall in his own story of the initial proceedings. The great habeas corpus cases of the Civil War rested on the premise that the body could not be held without justification. Lochner v. New York turned on how much bad air a baker’s lungs could take. Muller v. Oregon rested on a perception that women’s bodies deserved special care.15 New interests for the fetus were created in Roe v. Wade. Ultimately, this interpretation of the physical in the gaze of law is at the core of what law means. In interpretation, the dichotomous relation between bodies and norms breaks down. For example, in Palko v. Connecticut, the 1937 case, Benjamin Cardozo held that the execution of Palko after a second trial was reasonable and did not require the full array of

11. Ibid., 1605. 12. “It is, of course, grotesque to assume that the civil facade is ‘voluntary’ except in the sense that it represents the defendant’s autonomous recognition of the overwhelming array of violence ranged against him, and of the hopelessness of resistance or outcry.” Ibid., 1607. 13. Ibid., 1609. 14. The “crunch” is an epistemological bridge that describes the point when the institutional machine smashes up against bodies. In Only Words, on the pornography debate, Catharine A. MacKinnon gives new meaning to bodies of law. See her Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987); Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989); Only Words (Cambridge, MA: Harvard University Press, 1993). See Judith Butler, Excitable Speech (1997), for a critique of this conjunction of thought and action in the hate speech debate; and Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberle Williams Crenshaw Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder: Westview Press, 1993). 15. 208 U.S. 412 (1908).

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federal procedural guarantees.16 We live under jurisprudential forms where the logic and categories of law are embodied. Law’s continuity is an aspect of the legal becoming physical. The Court maintains a larger “cumulative and reversible” temporality against “temporal incongruities in that the incumbent of a legal office is mortal.”17 We say that the Court decided Marbury v. Madison in 1803 and that it will decide various matters in 1994. This continuity is most significant when linked to the resolution of new policy questions where the past weighs in to support decisions in the present. We speak of law as if a disembodied presence does the work, but the continuity that we get from an institution makes law real and overcomes the tension relative to the mortal bodies of its members. In Roe v. Wade, the heartbeat and kicks of a child in utero become the takeoff for the second trimester of pregnancy, where the states are informed they may begin to take account of that emerging life. Then again, three months later, the little bodies that can live on their own, the potentially viable, carry the heavy hand of law even further into a woman’s body. Little Joshua DeShaney, battered and permanently injured, symbolizes the Supreme Court’s refusal to obligate a state to protect wards that its agents in the social welfare department do not have in custody. In 1986, the Sears Case gave sexual difference implications for the stature of women at work that split the women’s movement. And the battery plant in Johnson Controls took account of women’s bodies yet refused to protect them. This epitomized the situation of the conservative justices who now sit on the Supreme Court. Near the end of the Reagan presidency, Berkeley political theorist Michael Rogin juxtaposed celluloid images of Ronald Reagan as an actor with the actor Ronald Reagan who was president.18 Rogin presented the “two bodies” issue from Ernst Kantorowicz’s influential 1957 book about the images of the king in the Middle Ages. In this period, the idea of two bodies became the mechanism for explaining the king as royal and as human.19 According to 16. “Is that kind of double jeopardy to which the statute has subjected him a hardship so acute and shocking that our polity will not endure it?” 302 U.S. 328 (1937). 17. Greenhouse, “ Just in Time,” 1648. 18. In this effort, he showed how Reagan’s roles as an actor influenced the things he did and said as president. The purpose, in part, was to draw attention to the relationship between the physical and the ideal, to image and alleged reality. While the influence of the celluloid world on the reality of political life was meant to be unsettling, the coexistence of real and ideal in political and legal institutions has a long tradition. Michael Rogin, Ronald Reagan, the Movie (Berkeley and Los Angeles: University of California Press, 1987); see also Sheldon Wolin, “The People’s Two Bodies,” Democracy 1 (January 1981): 11–19. 19. Kantorowicz quoted from the Elizabethan jurist Edmund Plowden on the “two bodies” of the sovereign. “The King has in him two Bodies . . . a Body natural, and a Body politic. His Body natural

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Rogin, the doctrine of the two bodies separated the person from the office, which was a modern perspective on legal power. But, by hanging on to transcendent as a capacity in law, albeit weakened by the distinction, politics could be subject to the rule of law. In addition, participation by the church in grounding the authority of kings helped to make a distinction between law in some ideal sense and positive law, and promulgated the fiction that we can be “a government of laws and not of men.” Traditionally, the body of the condemned affirmed this metaphysical power of the state. As Michel Foucault has shown in perhaps his most vivid passage in an immensely influential body of scholarship, the premodern state exercised its domain over its subjects through force applied to the body. The pre-Enlightenment forces applied to the body served to affirm the authority of the sovereign and the place of the subject in a social fabric of palpable character. The change in that perspective is at the heart of contemporary legal authority, and understanding its social manifestations is central to understanding the social power of law. In the Christian tradition, the spirit becomes material through eating, a physical act that “aids the internalization of the Holy Spirit” among other things. The practice that began with breaking bread at the Last Supper is a source of intense and contested meaning.20 The legal scholar Peter Goodrich holds that “. . . Theory of presence in the Eucharist, becomes in law the question of the ‘spirit of law’” or the law in our lives.21 In colonial New Mexico, a similar imposition of Eucharistic ideology was employed by Spain to bring Native Americans under the European yoke. As presented by Ramon Gutierrez in When Jesus Came, the Corn Mothers Went Away,22 Spanish rule linked authorities representing both the Lord and the state through the mechanisms of the Eucharist and the priesthood. Because we have taken law into our lives, we fail to see the embodiments. Indeed, since the Enlightenment, is a Body mortal, subject to all infirmities that come by Nature or Accident. But his Body politic is a Body that cannot be seen or handled. . . .” Ernst H. Kantorowicz, The King’s Two Bodies (Princeton, NJ: Princeton University Press, 1957). 20. Breaking bread at the Last Supper means “. . . that what is present is always potentially a reference to some other order of being or to some other text.” Peter Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (London: Weidenfeld and Nicolson, 1990), 54; “That the Lord Jesus the same night in which he was betrayed took bread: and when he had given thanks, he broke it, and said, Take, eat: this is my body, which is broken for you: this do in remembrance of me . . . for as often as ye eat this bread, and drink this cup, ye do shew the Lord’s death til he come.” 1 Corinthians 12. 21. Ibid., 55; see also, “the Last Supper is an account of the founding of community, of the establishment of an order of memory and of the authority of that memory, its law,” 57. 22. Ramon Gutierrez, When Jesus Came, the Corn Mothers Went Away (Stanford, CA: Stanford University Press, 1992).

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our demand for the separation of the secular from the sacred realm elevates the ideal of law above various religious differences and the flesh. Even in realism, we have trouble actually seeing the bodies in law because the tradition of institutional resistance is so strong.23 Various social movements in the Anglo-American tradition have brought bodies back into the picture: the effort to abolish slavery, the move to regulate industrial capital, lynching and the anti-lynching league, and the anti-abortion movements are prime examples. Contemporary intellectuals synthesize a number of these concerns into new ways of seeing the body in law. Feminists have been concerned with the body for obvious reasons. Historically, a masculine law sought to protect the female body. The issues surrounding protectionist legislation have long divided feminists in law. Among the central concerns of contemporary feminism have been abortion rights and protection from rape and battery. Zillah Eisenstein, Mary Joe Frug, and Catharine MacKinnon provided examples of the relevance of this orientation to legal bodies and to the significance of women entering the law in large numbers. 24 Eisenstein, in The Female Body and the Law, described the constitution of reality in linguistic terms and charted the ways law constitutes male privilege.25 The methodological significance of this work is associated with the presence of a male qualities in the standard for equality. Whether as a basis for determining difference or sameness, law has worked from a male standard. As such, law as an “authorized discourse” carries a view of men back and forth between the real and the ideal. Frug’s “postmodern” account implicates law in the construction of the female body where “[d]ifferences between women and men are not biologically compelled, they are rather socially constructed.”26 She points to three aspects of law contributing to that meaning: a terror embodied in women facing rape or abuse, a picture of women as responsible for motherhood and child raising, and women as sexualized persons.27 The project of demonstrating the constitutive 23. John Brigham and Christine B. Harrington, “Realism and Its Consequences,” International Journal of the Sociology of Law 17 (1989): 41–62. 24. See also Margaret Thornton, for what she calls a corporeal consciousness that would address the bonds connecting boy’s private schools, men’s clubs, and sport to reveal a materialist theory of citizenship. “Embodying the Citizen,” in M. Thornton, ed., Public and Private: Feminist Legal Debates (Melbourne, Australia: Oxford University Press, 1995), 217–220. 25. Zillah Eisenstein, The Female Body and the Law (Berkeley and Los Angeles: University of California Press, 1985); see also, Catharine MacKinnon, “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence,” Signs 8 (Summer 1983): 645. 26. Mary Joe Frug, Postmodern Legal Feminism (New York: Routledge, 1992), 128. 27. According to Frug, “Legal rules permit and sometimes mandate the sexualization of the female body . . . through provisions that criminalize individual sexual conduct such as rules against commer-

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role of law for the body is central to feminist legal theory. In each aspect described by Frug, the laws handed down by the Supreme Court play a role in constructing the body, and the Court, with women as justices, is more obviously human. But feminism, like contemporary law, has also been constructed around a picture of the judicial body. In the case of feminism, the bodies of the justices of the Supreme Court have been male. In the 1990s, after women had been judges for a while, a number of legal scholars speculated on the meaning of women in law, and, not surprisingly, bodies seemed to matter. Sandra Berns, the former dean of the law school at Griffiths University in Brisbane, Australia, asked, “Is it possible to speak as a judge and as a woman? Not simply to speak as a judge and speak the feminine, but to speak as a judge and as a subject.”28 She described how a black judge or woman judge might be perceived as biased, whereas a white male judge is expected to be neutral, particularly relative to race and gender. Berns quotes Costas Douzinas, who pointed out about the authority of the judge that it “. . . is the opposite of that of the storyteller. It is a function of institutional structure and power, rather than of the tactics of seduction.”29 Because the power comes from the institution, the judge “assumes rather than negotiates his authority.”30 Comparing the condition of women as judges, Berns argues that when a woman assumes the position of judge “. . . she does more than assume her authority; rather than negotiate it, she embodies authority. She is the body of authority.”31 In a counterpoint to the feminist focus on the body, postmodern and interpretive scholars have drawn attention to the ways the body becomes marginal in the practices of governance. The picture of governance is one of practices of social control that operate on consciousness and the construction of reality to confine choice without physical expression. Thus, even the brutal-looking panopticon of Jeremy Bentham, which is evident in many operating prisons such as Rahway State Prison in New Jersey and tourist spots such as the Old Melbourne Gaol, is a less brutal alternative to the stockade and the massive imposition of the death penalty that preceded the penal reform movements of the nineteenth century. Contemporary jurisprudence incorporates the poststructural and the feminist in a realist paradigm that cial sex or same sex practices and rules that support institutions such as pornography . . . and rules that govern the application of rape and sexual harassment laws” (129–130). 28. Sandra S. Berns, “Constituting a Nation: Adjudication as Constitutive Rhetoric,” in The Disorder of Law, ed. Charles Sampford, 84–120 (London: Blackwell, 1969). 29. Costas Douzinas et al., Postmodern Jurisprudence (New York: Routledge, 1991), 109. 30. Ibid. 31. Ibid., 90; see also Sandra S. Berns, “Bloody Bones—A Legal Ghost Story: To Speak as a Judge,” Australian Feminist Law Journal 2 (1994): 125.

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makes awareness of the physical bodies of law work. The judicial body, like the Court itself, has been out of the public eye most of the time. In comparison with the president,32 there has been less access to the bodies of the justices. This is changing. In the sections that follow, this inquiry draws on the political epistemology of body politics to understand the implications of considerations from old age and death to sex at the Supreme Court.

Death and Life Life is how long justices get to keep their jobs. For students of the Court, mortality and incapacity arise over the possibility of openings or the ability of a sick justice to carry on. At the Court, even the sudden death of a healthy justice, like Chief Justice Stone’s while reading an opinion in open court in 1946,33 may be less disruptive than senility and other incapacities of old age. Clearly, the judicial body is a major determinant of Court policy. But, the bodies that come before them matter as well. The Supreme Court is expected to review death, as a penalty, with particular gravity because, among other things, the Court is at the end of the line of legal appeal.34 From Furman in 1972 to McCleskey in 1987, the Court goes from tentative denial that execution is constitutional to affirmation that even where there is aggregate racial discrimination, the penalty of death may be imposed. During this time, the Court had twelve members, beginning with William O. Douglas in 1939 and ending with Antonin Scalia, who was appointed in 1986. In this period, there was a metamorphosis in the corporate judicial body while the body of law on death was transformed. This section will outline some issues—leaving the Court, sickness and age as characteristics of justices, and the corporal presence of justices—and suggest their implications for judicial policy on the death penalty. Some contemporary Supreme Court scholarship considers the politics of “leaving the Court.” For Lawrence Baum, the link to mortality explicit. He points out that most judges stay on the Court until they die or absolutely can’t function.35 And, the “problems” caused by aging justices have been alleviated somewhat since 1869 when Congress provided that the salaries of the justices 32. Robert E. Gilmore, The Mortal Presidency (New York: Basic Books, 1993). 33. Lauson H. Stone, “My Father the Chief Justice,” Yearbook (Washington: Supreme Court Historical Society, 1978), 17. 34. Barrett Prettyman Jr., Death and the Supreme Court (New York: Harcourt, Brace and World, 1961), argues that even death’s “majestic presence” cannot guarantee that it will get the attention of the Court. The condemned must overcome such formidable constructions as the federal system, which places the responsibility for criminal law with the states. 35. Lawrence Baum, The Supreme Court (Washington: CQ Press, 2007), 65.

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be continued after they retired. Major attention was paid to an aging federal bench in the early twentieth century. Since 1937, justices who are seventy or over and who have served at least ten years have been able to choose partial retirement with full pay and any subsequent salary increases. So, aging justices are less of a problem than they once were. Retirement programs, which seem to have had the desired outcome, combined with other cultural changes to produce what Merlo Pusey quaintly referred to as “retirement in good season.”36 The majority of the justices have left the Court before their deaths. Between 1954 and 2005, none of the justices died in office, although many succumbed soon after leaving office. Justice Rehnquist, who died just before the term began in 2005, had been sick for many years but would not resign. Judicial income is certainly a factor in retirement, and helps to alleviate the problem of getting justices who are old, ill, or not able to keep up with the workload to leave the bench. This poignant situation has been a prominent feature of Court lore for some time. One of the first of many standard stories recounted about the Supreme Court tells how his brethren went to an aging Justice Oliver Wendell Holmes to get him to step down, and reminded the justice of similar entreaties he had made to Justice Stephen Field nearly a half century prior. Holmes is said to have responded to his younger colleagues that he had never himself done a dirtier day’s work.37 Physical problems have included Hugo Black’s loss of memory, John Marshall Harlan’s failing eyesight, William O. Douglas’s stroke, and William Rehnquist’s many infirmities. Health and the perception of vulnerability have a bearing on the pressure to retire that justices receive. This pressure comes in many forms, but usually there are policy consequences in the picture. Fred Graham, the journalist who helped to start Court TV, reports that Justice Felix Frankfurter was persuaded by John Kennedy to resign because he had lost effectiveness due to failing health.38 Justice Thurgood Marshall was pressured by both Richard Nixon and Jimmy Carter to resign. Marshall’s health may have been the excuse, but the justice’s resistance to such solicitations from Nixon should have been easy given their policy differences. The most famous issue around age and capacity was the Court-packing plan of Franklin D. Roosevelt in which the president would appoint an additional justice for each justice over seventy, “to help with the workload,” Roosevelt argued. This is a battle central 36. Ibid. 37. Mentioned in Bob Woodward and Scott Armstrong, The Brethren (New York: Simon and Schuster, 1979), 161, with reference to Justice Black’s retirement. 38. Happy Talk: Confessions of a TV Newsman (New York: Norton, 1990). As reported in Baum, 127.

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to Supreme Court lore and perhaps crucial to the premise that the Supreme Court is a very important institution.39 Age was the principle upon which Roosevelt’s attorney general, Homer S. Cummings, rested the court-packing plan. Age was to be the neutral principle of reform that was supposed to allow the new administration, only months after coming into office in 1937, to change the makeup of the federal judiciary. Stimulated by an earlier attorney general’s role in providing decent retirement benefits in order to get rid of “worn-out judges,” Cummings picked up the recommendation that James Clark McReynolds had made in 1913 that the president should appoint an extra federal judge whenever a judge carried on after the provided-for age of retirement.40 Age was supposed to have become synonymous with being out of touch. However, with reverence for the institution stimulated by the plan’s failure, the age of individual justices faded again into the background. Youth and its implications for an extended term on the Court were promoted during the conservative administrations of Ronald Reagan and George H. W. Bush. Professor Sheldon Goldman has done the definitive work on selection, and his discussion of age as a factor in the appointment process covers the Reagan and Bush years. The explicit move to appoint younger judges in order extend their influence on the bench is conventionally associated with the Reagan presidency, but young judges like Joseph Story, who was thirty-two when he was appointed in 1811, Benjamin Curtis (forty-two) appointed in 1851, and Douglas (forty-one) in 1939 span nearly the entire history of the Court.41 Goldman describes the process as one that evolved over the Reagan-Bush period. The average of 48.1 years during Bush’s term is easily the lowest since the Johnson administration and probably the lowest average in this century. In addition, the proportion of judges appointed during the last two years of Bush’s term who were under forty-five was 44 percent, while this average dur39. The four justices who drew the wrath of the president were described at the time by journalist Joe Alsop: “McReynolds, a man of granite face and granite convictions, a hater who was unrestrained and furious in his hatreds; Butler, a bludgeon-minded railroad lawyer, pious, hearty, given to interminable anecdote and endlessly persistent with the persistence of a narrow man; Sutherland, gentle, simple, older seeming than his brethren; Van Devanter, genial, kindly, a man whom all men liked . . .” Joseph Alsop and Turner Catledge, The 168 Days (Garden City, NY: Doubleday, Doran, 1937), 4. 40. Ibid., 33. The plan did not originally apply to the Supreme Court. Paradoxically, although the Congress had passed a full-pay retirement benefit for the justices, they are said to have feared that Congress might subsequently lower their salary as they had Holmes’s after he retired, and further the justices did not want to pay income tax after they retired, something they were protected from while sitting. 41. Sheldon Goldman, “Reagan’s Judicial Legacy,” Judicature 72 (1989): 318–330; and “Bush’s Judicial Legacy,” Judicature 76 (1993): 282–297.

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ing Reagan’s first term was a mere 26 percent. Judges appointed to the appeals courts were, of course, somewhat older, averaging 48.7 years for Bush and 50 for Reagan. Indeed, the average age has crept pretty steadily down from 52.2 in the Johnson years.42 On the Supreme Court, this sort of calculation is difficult because the numbers are so small. Yet, in the last few years all appointments have been relatively youthful, with the most extreme case being Clarence Thomas who was forty-three when he was appointed. With a life expectancy at the national average, Justice Thomas could serve on the Supreme Court until near the middle of the twenty-first century, through perhaps a dozen presidents. Justice Douglas’s health received widespread attention because his last years on the bench occurred in the period covered by The Brethren. At seventy-six, on December 31, 1974, the justice suffered a stroke while vacationing in the Bahamas. His effort to return to work and the impact of his incapacity on the Court is told in extraordinary detail. We are told that working around the incapacity of one of its most active members presented challenges throughout the spring of 1975 that intensified when Justice Marshall was hospitalized with pneumonia in February. Douglas returned to the Court in March. His wheelchair was rolled up to the bench for oral arguments on a ramp. He had to leave in the middle of the session. Returning in the fall after a summer of struggle to regain his strength, and entreaties from friends and former clerks to step down, The Brethren reported that Douglas was wheeled into the preterm cert conference for the 1975 term smelling from the “bag for his incontinence” and generally disrupting the traditional flow of work.43 These reports on the incapacity of Justice Douglas and a few other indelicate references to decrepit bodies were among the issues at which commentators took offense in reviewing The Brethren.44 Objections to intrusion by investigative reporters into the most intimate and private institution of the national government ranged from subtle critiques of legal realism to the extreme protectiveness of Anthony Lewis.45 George Anastaplo says, in his review of The Brethren, “What is novel in their accounts is not likely, by and large, to be accu42. There were few appointments of justices in their early forties or younger in the late nineteenth century. For more information, see Sheldon Goldman, “The Age of Judges,” ABA Journal 73 (1987): 94–98. 43. Woodward and Armstrong, The Brethren, 462, 464. 44. The criticism focused on intrusion, linking the critique to the anonymity of the sources on which the book was based. See Walter Murphy, “Review of The Brethren, Washington Post, December 16, 1979, 11; Phillip Kurland, “The Brethren: A Hyped-up Stunt for Political Voyeurs,” Chicago Tribune, December 16, 1979, 2; George Anastaplo, “Legal Realism, the New Journalism and The Brethren,” Duke Law Journal 41(November 1983): 1045–1074. 45. Anthony Lewis, “Review of The Brethren,” The New York Review of Books, February 7, 1980, 3.

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rate”; and he notes that we do not need to know the politics much less the bodily functions of the justices to understand the Court and the Constitution.46 One of the authors of The Brethren, Scott Armstrong, justified reporting on Justice Douglas’s physical breakdown at the conference “[I]n order to show how difficult it was for the Justices to work together in one room.”47 John P. Frank, in his review, attacked the sources relied on by Woodward and Armstrong, calling them “swine” for recounting incidents like one in which a justice, signing court papers on his deathbed, signed the sheet instead of the paper.48 The protectiveness that many authorities show toward the Court suggests that “the cult of the robe” has been replaced with “the cult of the Court.” Between Furman and McCleskey, a period of fifteen years, three justices left the Court—Douglas, Stewart, and Burger—while three came on, Stevens, O’Connor, and Scalia. This was a period of relative stability. The personnel changes of the Nixon administration had already been put into place by the time Furman was decided. The replacement of Stewart with O’Connor seems relatively insignificant in policy terms, at least on the death penalty. And while replacing Douglas with Stevens seems somewhat inconsequential in absolute policy terms, the subsequent replacement of Burger with Scalia intensified the consequences. Here, sickness, in the case of Douglas, precipitated a change and made it more dramatic than the other, more deliberate retirements. And, because death did not visit the Court during this time, opportunity presented itself in measured terms. At the same time as we are becoming more aware of the bodies of the justices, the bodies of the condemned have all but disappeared from view except in fiction and film.

Going All the Way Realism focuses on institutions and assumes the Supreme Court to be the ultimate legal authority. This “bureaucratic” dimension takes the place of 46. Anastaplo concludes his review by stating, “We should take care, in our responses to the opinionmakers of our day, that we not permit a cheap realism to be substituted for a noble awareness” (1074). In some sense, the cheapest realism in this formulation is physical, and we should wonder what sort of dichotomy this is. For another excellent discussion of the excesses of realism, see Ronald J. Fiscus, “Studying The Brethren: The Legal-Realist Bias of Investigative Journalism,” ABF Research Journal (1984): 487–503. 47. See Anastaplo, “Legal Realism,” 1051, for notes on a panel discussion at the 1980 American Political Science Association meeting. 48. John P. Frank, “The Supreme Court: The Muckrakers Return,” 66 ABA Journal 161 (1980): 162.

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traditional forms and ties the punishment of death to the institution. While the justices in Washington share with the state courts and governors the status of last best hope, the Supreme Court has a special position in this regard. In addition, realism has made the Court at the end of the line, more central with consequences for habeas corpus in capital punishment cases. The realist foundation for law, rather than undercutting judicial authority over life, provides the basis for the Supreme Court’s habeas corpus decisions. From contemporary intellectual interest in these subjects, this chapter concludes with aspects of institutional life that turn on mortality and finality. The result is a constitutive perspective on the state’s claim of authority to put people to death. The bodies of the judges and the bodies of the condemned have in the last generation come together at the Supreme Court. With the death penalty more than in any other aspect of contemporary jurisprudence, the place of the Court at the pinnacle of American law becomes evident. In the matter of capital punishment, the Court has attempted to insulate itself from the executions it has allowed since its decision in Gregg. In the immediacy of the practice with its daily executions and the consequent press of the practice, death seems likely to be with us for a while, its compelling character driving out matters of its demise. But, its history and that of the Court suggest an inevitable end to the carnage. With a more representative body of law, the body of the condemned seems eventually to be reprieved. And, retiring justices often point to the Court’s struggle with the death penalty as a failure in constitutional jurisprudence. Since the Court established itself as a court of last resort in matters of criminal law, in the 1930s, the death penalty appeal to the High Court has been a dramatic aspect of its institutional life. As Michael Meltsner, writing about the Court and capital punishment, said in discussing Maxwell v. Bishop (1968)49 after the federal circuit in Minnesota had rejected appeal by the condemned, “Once again, only the Supreme Court of the United States stood between William ‘Billy’ Maxwell and the electric chair.”50 The institution, like the robe, had come to have a special place. The nature of death and the place of the institution produced dramas that the justices sought to avoid, but the Court inevitably was to receive. 49. 398 F.2d 138 (8th Cir. 1968). In 1962, Maxwell was a twenty-two-year-old black man from Hot Springs, Arkansas, convicted in the rape of a white woman. This was a case in which the ACLU attempted to employ the work of social scientists in order to demonstrate the existence of racial discrimination in the administration of the death penalty. 50. Michael Meltsner, “Capital Punishment the Moment of Truth,” Juris Doctor November 1971: 105.

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In America, the “Marble Temple” behind the Capitol symbolizes finality in law.51 When robed men and women announce opinions from this building, those opinions have authority derived from the institution it houses. Institutions give meaning to action, and they require more reflective attention than scholars have given to them. We need to place institutions like the Supreme Court in a conception of American government. Like Justice Potter Stewart’s response in another context, we have trouble when we try to define an institution, but we know one when we see it. When the Court serves as background for a picture of a robed person, we believe that we know something of the job that person does. We know the justices when they are in place, behind the bench, or represented in opinions, but very few people know them away from the Court. While many Americans would recognize the Court if they saw a picture of the building in Washington, D.C., few could distinguish the building standing alone. It is very similar to thousands of other neoclassical temples in the United States (the Court’s facade is almost identical to the New York Stock Exchange). Similarly, although the words of opinions are available in most libraries, few know how to make sense of them. This differential knowledge is part of the institution, and it is part of the attraction of realism. The “cult of the robe,” a highly formal belief in law and the scholarship of judges that was the basis for legal authority fifty years ago, no longer functions as it once did. Realism in law, including a critique of formalism as part of its narrative, keeps the cult of the robe alive. Realism, as it applies to the authority of courts, particularly the Supreme Court, produces a “cult of the judge,” and the “cult of the Court” has replaced the formalism of mechanical jurisprudence. The way we view the Court depends on hierarchies, the image of justice represented by the building, and the special place of the Supreme Court in the legal system. Pursuing these “cults” can be scary, but viewing the institution at this level promises some resistance to the pull of authorized material or official opinion from the bench. In addition, the effort to portray the cult around the institution provides a framework for interpreting a variety of Court-related materials. Opinions, history, and commentary on the institution are keys to institutional politics. The modern Court functions through a dynamic between politics and law, human interest and institutional practice. It stands apart from individual action most of the time. That is why The Brethren, with its portrayal of scheming and self-interest, received so much attention. There is politics on 51. This analysis is drawn from John Brigham, The Cult of the Court (Philadelphia: Temple University Press, 1987), and was adapted for the North East Political Science Association Convention, Boston, November 1996.

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the Court, and there is a politics in the way we know the institution. The second kind is newer. We began to see this kind of politics in the debate over the Supreme Court and the Constitution. Attorney General Edwin Meese stimulated the debate in speeches from 1985 to 1986 holding that we should repeal the doctrine of incorporation applying the Bill of Rights to the states. He also argued that the Supreme Court was not the last word on the Constitution. The legal community promptly condemned this position, leaving some to wonder how the understandings Meese challenged became so ingrained. In this approach, I have been less interested in what very few people know and more in what most people take for granted. Expectations that we learn, as we learn what something like a Supreme Court is, set limits on action. Two facets of the Court’s special place in the American political culture are evident through institutional analysis, its intimacy or mystery and its distance or place at the “end of the line” in jurisprudence. My students have been asked to write about these phenomena for years. According to one, Gina Russo, “. . . deference to the Marble Temple has resulted in its exaggerated depiction, the Supreme Court is touted as a post-modern Olympus.”52 Journalists have also described the Court as “shrouded in clouds of mystery . . . publicly glimpsed only on those occasions when, with little warning, the justices cast their constitutional thunderbolts to consternate us mere mortals below.”53 I have tried to capture these considerations in the reaction to penetration of the institution by The Brethren and in ordinary phrases like “all the way,” which is in common use as an indication of where the Supreme Court sits and has sexual as well as linear connotations. Russo, in reviewing reactions to The Brethren, wrote in a paper that “[a]ttempts to lift the decorous robes of the nation’s highest tribunal to deconstruct the myth of the justices as ‘rarified creatures whose priestly vocation allows them to shed the animosities and crudities of ordinary people’ are received harshly.”54 She may be right. For example, John P. Frank’s review described a source used by Woodward and Armstrong as “swine” for recounting how one of the justices, asked to sign Court papers on his deathbed, signed the sheet instead of the paper. Anthony Lewis’s review in the New York Review of Books was equally critical of this sort of realism. The authors of The Brethren seemed aware that they were doing a little muckraking, though they would call it investigative reporting. In their 52. Gina Russo, “The Brethren Backlash and a High-Tech Lynching: Overexposure of the Marble Temple,” student paper, University of Massachusetts, Amherst, 1992. 53. Stephen L. Carter, “The Candidate,” The New Republic, February 22, 1993, 35. 54. Russo, “The Brethren Backlash”; quoting Graham Hughes, “The Brethren,” The New Republic, February 23, 1980, 31.

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opening they claimed, “No American institution has so completely controlled the way it is viewed by the public.” At the core of this control is the secrecy of the justices’ conference. This institutional practice has fascinated political scientists. In Storm Center, David O’Brien, a former judicial fellow, unpacks the mystery and practices of the conference, including the order in which judicial views are presented and the order by which the justices indicate their preferences. The Brethren also draws on the drama of conference to portray the justices in combat over the cases behind the Purple Curtain. These stories draw on the intimacy and mystery surrounding the institution, and set up a picture of justices on the inside and the rest of us outside most of the time. The Brethren opens with a statement about the Court’s place in American law: “The United States Supreme Court, the highest court in the land, is the final forum for appeal in the American judiciary.” This place has become central to the Court’s authority, giving new meaning to Justice Robert Jackson’s aphorism that the justices “are not final because they are infallible but are infallible because they are final.” The manifestations of distance as an aspect of the Court’s identity appear in various forms. My students have had many interesting experiences while interning in the Chief Justice’s Office at the Supreme Court. The thing that fascinated me most was the denial that seemed to characterize public reaction to their internship. When Joyce O’Connor was at the Court in the fall of 1989, she was constantly faced with blank stares when she indicated where she was working, and on a number of occasions she and I witnessed what initially seemed to be strange behavior. We began to suspect that people had trouble processing the fact that Ms. O’Connor was at the United States Supreme Court. We thought this was because the institution seems so distant. Intimacy and distance provide an aura around the institution that serves as a surrogate for legal authority in an age of what might be called “cheap realism.” A famous case of breakdown in the intimacy and distance usually associated with the Supreme Court is that of Clarence Thomas’s nomination. During the Thomas nomination in the fall of 1991, the nation sat transfixed as a would-be justice came under fire. The tension was as it had been during the Watergate investigations almost twenty years before when institutional practices became the subject of committee interest. The result was revelations about the sexual practices of a nominee to the Supreme Court. Thomas won confirmation, but as The New Yorker published an article about a different sex scandal some years later, Anita Hill seems to have won the culture war.55 55. Peter J. Boyer, “A Reporter at Large: Admiral Boorda’s War,” The New Yorker, September 16, 1996, p. 68.

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The Brethren and the Hill-Thomas affair challenge us to think of the Supreme Court’s authority in terms of the combined factors of intimacy/mystery and considerable social distance. Both “. . . throw open the black robe at times when the Court has eluded substantial scrutiny, contradict existing information on the Supreme Court, and are criticized as fetishizing detail and manipulating imagery in their portrayals of the institution.” Yet, the institution appears to be quite secure as it wields these new forms of authority. Just as law plays a role in constituting the lives of people in families and in social movements, it is also constitutive with respect to the Supreme Court’s place at the top of a legal hierarchy and for the president as commander-inchief. An article written just after the Thomas-Hill affair by Charles W. Collier examines the distinction between institutional and intellectual authority on the Supreme Court.56 Drawing from The Cult of the Court, Collier proposes that the Supreme Court’s intellectual authority has dwindled, and it no longer is correct to say that the Court has, as Hamilton said, “. . . neither Force not Will, but merely judgment.” This is because in its exercise of institutional authority, it mixes will with judgment. One of his examples is an issue that arose in 1987 following Justice Thurgood Marshall’s comment that the original Constitution was not something Americans should celebrate. In support of Marshall, an article in The Stanford Magazine described him as an “authority on the Constitution.” Letters to the editor challenged this. The editorial response was, “If a Supreme Court justice is not an authority on the Constitution, pray tell, who is?”57 Collier takes the occasion of Marshall stepping down from the Court to assess the two important ways one might be an authority on the Constitution. The first is as a student of the text and subsequent commentary on it. In this sense, it would not be essential to hold a job as Supreme Court justice, and indeed, it is a kind of authority others might possess. In fact, it is a kind of authority shared by Supreme Court justices and some of the rest of us. The second is, ipso facto, by virtue of being a Supreme Court justice. That is, from this office alone, one might be considered an authority on the Constitution. When one steps down, some of that authority would be lost—but, maybe not all of it. Perhaps there would be a residue, a ghost of the institutional authority that would surround a former Supreme Court justice and distinguish him or her from other noninstitutional authorities. Obviously, for Justice Marshall or any other justice, for that matter, both senses were oper56. Charles W. Collier, “The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship,” Duke Law Journal 41 (1991): 191. 57. The Stanford Magazine, Spring 1988, 20, 21; Fall 1987, 24, 74; see also, Collier, “The Use and Abuse,” 222.

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ating while he was on the bench. But the distinction still matters. Marshall’s status as an authority was obviously diminished when he stepped down, and his successor would take up some of what was lost.58 An early citation to the Supreme Court’s distance was in Bachelor Mother, a 1939 movie with David Niven, Ginger Rogers, and Charles Coburn. Niven says, demonstrating his perseverance, “I’ll get him if I have to go to the Supreme Court.” It is a reference familiar in film and television lore. A similar wide-eyed enthusiasm is exploited to convey some of the special qualities of the character played by Annette Benning in The American President when she enters the White House for the first time. She calls it “Capraesque,” a reference to the selfconscious iconography in the movies of Frank Capra, particularly Mr. Smith Goes to Washington where Jimmy Stewart as Jefferson Smith has trouble getting to his office because he is so star-struck upon arriving in the city where so many of the monuments to American government reside. One of the most dramatic aspects of this “end of the line” status that arose in the early twentieth century is the expectation that the United States Supreme Court stands as the last line of appeal in death penalty cases. As the Court’s place in a newly centralized legal system was confirmed, its reception of habeas corpus appeals from the condemned increased. And, although capital appeals move in various directions in the legal system, the appeal to the Supreme Court carries that special authority that is not available to lower courts. On December 9, 1998, the U.S. Supreme Court stayed the execution of Joseph Stanley Faulder just a half hour before Texas planned to kill him by lethal injection. On death row for twenty-one years at the time, Faulder was a Canadian national whose case received special attention in the international community because Canada does not have a death penalty. Former U.S. Secretary of State Madeleine Albright sought a reprieve through Governor George W. Bush because of the international implications in the case. She was turned down. The notion that the Court had become the end of the line was dramatically played out when Julius and Ethel Rosenberg were about to be executed in 1953. In what has been called a “rush to judgment,” the Court was called into special session in order to overrule a stay of the execution imposed by Justice William O. Douglas. The Supreme Court had one of its most dramatic 58. Toni Morrison’s collection explores this issue with attention to the relationship between feminism and the Supreme Court in chapters by Patricia Williams, Nell Painter, and Kim Crenshaw. Crenshaw is a leading critical race theorist who teaches at UCLA law school. Her image is of “misplaced pairings” that strangely juxtapose ideology, race, and class. The result is the failure to see the African American woman. Painter, a professor of history at Princeton, wrote “. . . and the use of Racial Stereotype,” and sorted out the issues of sex and race that came to the fore in the Thomas-Hill confrontation. Her puzzle is that of thinking of gender and race “simultaneously.” Williams is a law professor at Columbia Law School. Her essay in the volume is titled “A Rare Case Study of Muleheadedness and Men.”

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encounters with execution when it went into special session in order to facilitate the execution of Julius and Ethel Rosenberg. Some thought that delay might lead to indefinite postponement. In this case, William O. Douglas had stayed the execution on the last day of the Court’s term and then left by car for his home across the country in Goose Prairie, Washington. Douglas was actually located by state police officers in Pennsylvania and informed that the Court was to go into special session the next day and hear his stay. He drove all night to get back to Washington in time for the hearing in which his position would eventually be overturned. In 1968, following the resignation of Abe Fortas and a shift of conservative attacks to William O. Douglas, the Supreme Court agreed to hear the appeal of Billy Maxwell. By the next year, requests for review had exploded, and it had forty-six appeals on its docket. American jurisprudence had become organized from the top down, and this had special meaning for the death penalty. When the Court acted in a death penalty case, it cast a long shadow over the legal process in the United States. THE DEATH PENALTY: FROM FURMAN (1972) TO M C CLESKEY (1987)

Years on the Court Douglas Brennan Stewart White Marshall Powell Rehnquist Burger Blackmun Stevens O’Connor Scalia

1939–1975 1956–1990 1958–1981 1962–1993 1967–1991 1972–1987 1972–2005 1969–1986 1970–1994 1975–Present 1981–2006 1986–Present

1987 Court in Bold letters. Public Opinion: In 1970, 48 percent of Americans approved of the death penalty. By 1991, it was 71 percent. Furman: 5 (White, Douglas, Stewart, Brennan, Marshall) to 4 (Burger, Blackmun, Rehnquist, Powell). McCleskey: 5 (O’Connor, Powell, Rehnquist, Scalia, White); 4 (Blackmun, Brennan, Marshall, Stevens)

Elmer Gertz, writing in 1974 about his life as a lawyer and the death penalty appeal of William Witherspoon, describes an affirmation of the death sentence by the Illinois Supreme Court followed by habeas corpus appeal to the United States District Court. When that failed, he reported, all that remained was “. . . an effort at executive clemency.”59 But the client filed 59. Elmer Gertz, To Life: The Story of a Chicago Lawyer (Carbondale: Southern Illinois University Press, 1990), 205.

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another petition in federal court, and a new attorney was appointed. The attorney, Albert Jenner Jr., went back through the state system and in 1967 filed a certiorari petition with the United States Supreme Court. The Court handed down the Witherspoon decision in June of 1968, holding that a death qualified or “hanging jury,” in which potential jurors with “conscientious or religious scruples against capital punishment” were excluded, was not constitutional.

Death and Doctrine Political scientists Lee Epstein and Joseph Kobylka have claimed that legal argument must be combined with other factors to explain judicial outcomes.60 Their work included attention to the death penalty, and they called attention to court personnel, the climate of the times, and the activity of interest groups. They argue that Justice Stevens’s replacement of Douglas was not crucial in producing the Gregg majority that overturned Furman, because death penalty abolitionists lost Justices White and Stewart, who defected from the Furman majority to produce the ruling in Gregg. Having won their points in Furman . . . abolitionists . . . sought to maintain their legal and policy victories through reliance on the arguments that worked to give them their initial victories. This failed in the area of capital punishment because the LDF misread the doctrinal glue that held the Furman majority together. . . .”61 But the shift that goes beyond doctrine to the body of law on death is the shift to McCleskey and the failure to consider doctrinal and social scientifically relevant information in mitigation of law’s authority over death. In this shift, the Court moves from the relevance of statistical evidence on the corporate body of black men to the denial of that evidence. In the process of gaining Senate approval for a nomination to the Supreme Court, the candidate’s body is put forth for scrutiny by the legislators in an increasingly public spectacle. In the most dramatic of these spectacles, the nominee stands in contrast to the gatekeepers. Louis Brandeis, a Jewish lawyer from Boston, presented himself to a largely Protestant committee of Senators. Thurgood Marshall, a black man, pre60. Lee Epstein and Joseph F. Kobylka, The Supreme Court and Legal Change: Abortion and the Death Penalty (Chapel Hill: University of North Carolina Press, 1992). 61. Ibid., 317.

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sented himself to the white political establishment represented by James O. Eastland of Mississippi, Strom Thurmond of South Carolina, and John McClellan of Arkansas. Sandra Day O’Connor’s audience was male and certainly unfamiliar with a feminine presence on Capitol Hill. Robert Bork’s imperious law professor persona played poorly on television, while Clarence Thomas embodied the difficult metamorphosis that turns a man or woman into a justice. From his initial introduction by the president while at his vacation home in Maine and the condescending attention to his laugh by his mentor Senator Danforth of Missouri, to the image Thomas himself invoked of the nominee being lynched and swinging from a video scaffold, Clarence Thomas was hounded about his body. Toni Morrison’s treatment of the nomination in her collection Race-ing Justice, En-gendering Power (1992) begins with his body. In her introduction to the collection, which is titled “Friday on the Potomac,” Morrison equates Thomas with the slave “Friday” in Daniel Defoe’s Robinson Crusoe. Friday puts his head on the ground before Crusoe and places the white man’s foot upon it as a gesture of absolute servitude. Morrison, Nobel Prize winner and Princeton professor, describes the hearings as “the site of the exorcism of critical national issues” that was “situated in the miasma of black life and inscribed on the bodies of black people.”62 Our attention is drawn to the “reassuring grin” that is for whites a “gesture of accommodation and obedience” (or, in a more linguistic sense, a “metonym for racial accommodation”). From Morrison’s perspective, the spotlight was on his body well before it came “violently into view” with the charges of sexual harassment lodged by Anita Hill. The body of this man is symptomatic of a society that has difficulty relating to the mind of a black person. Yet, what she calls “the fulcrum of the law” has Thomas’s bulk tottering. On one side, she saw a perverted African American and on the other, a justice of the Supreme Court. Thus, the politics of that nomination were both the presence and the absence of the body. During the nomination process, Thomas’s education was characterized as at an “all white school” in Georgia. Yet, one wonders how that could be possible since he was there. With similar poetic license, the first President Bush presented Thomas to the nation as the best available candidate, rather than the best black candidate. This formula deferred to the color blindness that the Supreme Court itself had made the standard for discussion of race in America. Ultimately, the expectation that the body would not be evident linked race and law in the nomination process, while the shocking talk of 62. Ibid., x.

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penis size and pubic hair in the context of a Supreme Court nomination turned the process upside down. The Court’s most important bodies, the justices, are human, and their policy consequences are contained in the physical self. In politics and law, actual human beings carry political meaning in the condition of their bodies. The Four Horsemen who stood against the New Deal were old and they were conservative. President Roosevelt’s response was an attempt to increase the number of bodies. The present Court’s conservatives were all appointed when they were relatively young. Individual justices, like Justice Stevens perhaps, hang on to increase the likelihood of policy continuity. Aging justices are pressured to leave, sometimes, to increase the efficiency of the institution. But it has political consequences. When we look at the justices and the Court, we turn the story of the Eucharist around. It is not the bread and wine that becomes the body and blood, but the bodies of these judges that become the law. They are its materiality. Here, we are investigating not how the justices create the laws binding us to their ideas but how the ideas that have bound us transform those who would give the law into its embodiment. Even as this human facet of the Court has become more central to its image, the Court has maintained its status. The Court became more human in the sense that its participants were increasingly accepted as human during the twentieth century. This is a period during which the Court has not seemed to lose any of its stature. In fact, one of the puzzles of modern constitutional government is that the Court has been able to maintain its authority as the old formalisms are discarded. The Supreme Court’s elevation to the pinnacle of a national system of government coincided with increasing realism about the institution. This seems particularly significant when it comes to habeas corpus in capital cases. High Court decisions have for some time imposed significant obstacles to winning federal court review of habeas petitions. The justices require a prisoner to show “cause and prejudice” sufficient to overcome the failure to present a claim in the first federal habeas petition. If that fails, the only remaining avenue for federal review is a showing that a lack of review would result in a “miscarriage of justice,” which seems to mean execution of an innocent person. In Schlup v. Delo, decided in 1995, the Court revealed that the addition of Justices Stephen Breyer and Ruth Bader Ginsburg to the bench had shifted the Court’s death penalty propensity. Here, the Court rejected its own 1992 “clear and convincing evidence” standard, which had required that no reasonable juror would have found him guilty. The new standard was to be a showing that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.”

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In the late 1990s, the Supreme Court indicated that it might be shifting away from its restrictions on death penalty appeals. Justice Breyer refused to set a time limit for state death row inmates to file their first federal appeal. In a unanimous opinion, the Court set aside an order that would have allowed the execution of a Georgia triple killer, Larry Grant Lonchar. Breyer wrote, “Dismissal of a first habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty.”63 While a prosecutor might show that a delay prejudiced the ability to respond, that issue would have to be argued in each case. The retirement of a justice and the penalty of death were indelibly linked just before Justice Blackmun stepped down. In a dissent to a denial of cert in the case of Callins v. Collins, Justice Blackmun indicated that he “no longer shall tinker with the machinery of death.” The opinion was a parting shot rich in the descriptions meant to “make execution personal” and establish that “the prospect of meaningful judicial oversight has diminished.”64 Based in the jurisprudential shift from Furman to McCleskey, Blackmun’s opinion declares his readiness to putting an end to his judicial responsibilities. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. Callins also addresses an institution with a crying sense of loss over the dominant doctrinal stance as Blackmun wrote, for, he says, “[t]he path the Court has chosen lessens us all.” While the Court wrestled with the details of death after the reintroduction of the death penalty in 1976, the public became more familiar with them. From Norman Mailer’s book on Gary Gilmore to John Grisham’s The Chamber, some of our most popular writers have turned to the matter of execution since the Court opened the door to the modern manifestation of this traditional social practice. We have prison journals like The Angolite and death row home pages that give us detailed pictures of the institutional life of the death machine. Dead Man Walking, the movie by Tim Robbins, has already been mentioned in the context of heightened attention to death. 63. April 1, 1996. 64. Sister Helen Prejean, Dead Man Walking (New York: Vintage, 1994), and it was responded to by Justice Scalia in graphic and equally gripping ways.

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This is like the detailed knowledge we now have of the Court itself. There is a strange consensus on the importance of knowing what happens in the death chamber and the conference room. Tim Robbins’s movie could be as ambivalent as it was because the both sides want the machinery to be seen. Many victim families and other advocates of death want the public to share in the social judgment meted out by the death penalty. Advocates for eliminating the death penalty believe that if people see the horrors of state–sanctioned execution, they will turn against it. If the Supreme Court is any guide, more information will not de-legitimate the death penalty.

II C ONSTITUTING L EGAL S PACES

?

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aving considered some theoretical aspects of the relationship between the material and law, the move in this part of the book is to the constitutive. This is a perspective that holds law to be partly responsible for our material life and calls attention to that aspect of law’s existence. The sites and substantive focus for the inquiry are neighborhoods, suburbs, regions, and nations. It is in these the places, the sites where people live and work, that law sometimes constitutes the terrain by setting the stage for conflict, for politics and for social life. This interest in the constitutive dimension of law does not claim that law constitutes all of material life. We begin with extremes, a neighborhood in New York City and cattle country in Northern California. Here, the institutions of law are sometimes constitutive and sometimes contested. In these cases, socio-legal scholars describing law in context use place to reveal the nature of law. We move to responsibility for their construction as it bears on racial discrimination in the United States. Here, we note how the positive distinction between fact and law, which is expressed as de facto and de jure, becomes the basis by which law in a particular regime settles matters of responsibility. Finally, broadening the discussion still further, we note how liberal jurisprudence is blind to numerous places within the United States where the law fails to constitute the local culture. In places such as Indian reservations, the territory of Puerto Rico, and the traditionally Spanish land in northern New Mexico, we offer a more politicized conception of law’s relationship to material life. The nature of these places is a function of the politics at agencies such as the Bureau

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of Indian Affairs, the meaning of concepts like citizenship, and managerial practices of a bureaucracy such as the Bureau of Land Management.1 In addition to this sort of development, there are other links between the chapters. One is the link between the claims of community, as an expression of neighborhood politics in the antibusing campaigns of the 1970s and the development of the doctrine of de facto discrimination. Here, the sociological fact of life together in a neighborhood or suburb becomes the basis for particularly strong political rhetoric employed in resistance to efforts by courts to end racial segregation. We propose, in Chapter 4, that where law is constitutive in neighborhood politics we can say it provides arenas and the basis of claims even where lawyers are not invoked. However, there will be times, with regard to what I have called “occupied territories”—the ghettos in American cities, Native American land, and the conquered lands of northern New Mexico—where American law operates in a tension with local law. 2 By comparison, we mention other cases within nation-states, such as Aboriginal Australia, where accommodation between the law of the nation and indigenous law is a site of major political struggle. In non-European Australia, the texts are the markers on the land and the discourse of the law may be found in the “songlines” that give meaning to these markers. Accommodation through issues of Native Title is at the heart of the cultural clash that is so prominent in the Australian psyche at the moment. Here, we take care to note how the meaning of law is influenced by interpretations with political significance. What becomes the law is a function of social status and institutional position as much as intellectual insight. In developing the initial insights of legal realism, this part of the book calls attention to law in how we live. Carried to a new level, realism about law means accounting for the authority of the lawmakers and the lawgivers. In American constitutional law, the texts and even the judicial interpretations are relatively simple, but the social life of interpreters and the interconnected systems of authority that they represent are highly complex. In other countries, not only are the actors and institutions different, but also the social meaning of legal edicts. This part moves from the local to claims of nationality, and at each level, insight from regimes other than the United States enhances this perspective.

1. See Barbara Bender, Landscape: Politics and Perspectives (Providence, RI: Berg, 1993), and work on Bodmin Moor given at the University of Massachusetts, Amherst, November 16, 1998. 2. This is discussed further in Chapter 6.

4 L AW ’ S N EIGHBORHOODS

? Who owns the land, who has a right to the buildings? A PRIEST ON THE LOWER EAST SIDE

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his chapter examines the places where we live for evidence of law that constitutes our lives. The chapter is a challenge to instrumental conceptions of law that are still prominent in some social scientific circles.1 The studies that are the foundation here take us to northern California ranches and to the Lower East Side of Manhattan. Here, we show legal relations shaping grassroots struggles over public space. We call attention to housing as it is manifest in forums, claims, and political positions. These accounts become points of reference for discussing a wide range of other neighborhoods both in the United States and abroad. From whaling communities on Nantucket to aboriginal land in Australia and the favellas of Rio de Janeiro, socio-legal scholars have illuminated law’s reality all over the globe. We conclude with an intellectual community, the one to which this work is directed, socio-legal scholars as having its own material life. While law often takes the form of rules, procedures, codes, and commands emanating from the sovereign, the “constitutive” approach describes a role that law plays in society. Law’s “visible or invisible structures”2 define

1. An earlier article on this topic was published with Diana Gordon and presented to the Law and Society Colloquium Series at New York University, April 13, 1992, and the Law and Society Association meeting in Berkeley, California, June 1990. In order to capture the collaborative nature of that work, the plurality of authorship will be used where it is appropriate. We wish to acknowledge a debt to David Gordon, Christine B. Harrington, Martin Shapiro, and others at the seminars for commenting on this work. 2. E. P. Thompson, Whigs and Hunters (London: Allen Lane, 1975).

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political institutions and become the substantive basis for politics. Law constitutes when elements of legality like the “myth of rights” take on practical significance. 3 In this role, law is more significant and more present than scholars sometimes acknowledge. We look to the social significance of legislation and the opinions of courts to law in practice.4 In this way, we are able to show how politics involves law in the constitutive sense. Law is an independent variable. It is a source rather than simply a consequence of politics.

Of Coase and Cattle Order without Law, by Yale law professor Robert Ellickson, examines disputes between the traditional cattlemen of Shasta County who revere the open range and the newcomers who fence in their small “ranchettes.” The author’s project is ambitious, and he has done a great deal of work to establish the authority of his contribution. The project tries to bridge the gap between formal and cultural analysis in law. This enterprise, specifically the marriage between Law and Economics and Law and Society, could disappoint partisans in both camps. My sense, however, is that it will not disappoint, because we want to see the gap as bridgeable through careful research. Even if one cannot quite grant the coming together of these two worlds, whether for political or metaphysical reasons, the book contains vivid portrayals of community norms and jurisprudential scrutiny of assumptions in the social sciences of law. Ellickson is a distinguished legal scholar who has contributed substantially to the study of property in his career. His work includes a score of law review articles and the casebook Land-Use Controls. He has taken his theoretical interest in politics and law to a variety of settings and confronted both critical and economic scholars on various issues surrounding ownership and possession. Ellickson has appeared on symposia dealing with property as political philosophy and public policy 5 and on programs of the 3. Stuart Scheingold, The Politics of Rights, (New Haven: Yale University Press, 1974). 4. Patricia Williams’s commentary on property in “Alchemical Notes” argues for a conception of property that would include the power held by clerks in Manhattan stores who control the buzzer that opens the door. Patricia Williams, The Alchemy of Race and Rights (Cambridge, MA: Harvard University Press, 1991). 5. Robert Ellickson, “Bringing Culture and Human Frailty to Rational Actors: A Critique of Classical Law and Economics,” Symposium on Post-Chicago Law and Economics, Chicago-Kent Law Review 65 (Winter 1989): 23–55; “Privatization: The Assumptions and the Implications,” Marquette Law Review 71 (1988): 583–648; “Redistribution and Regulation of Housing,” Symposium, Emory Law Journal 32 (1983): 767–819; “Cities and Homeowners Associations,” Symposium: The Public-Private Distinction, University of Pennsylvania Law Review 130 (June 1982): 1519–1580.

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Federalist Society that examined property in relation to the welfare state and “beyond.”6 In Order without Law, Ellickson turns to jurisprudential disputes emerging from law and economics scholarship. Like his colleagues who do this sort of work, Ellickson pays homage to the Coase Theorem. This way of thinking drew on cattle trespass to lay the foundations for the field of Law and Economics. The result is something very different from the original, a rich ethnographic study demonstrating a feeling for the ranch lands of northern California. Although the Harvard Law Review found this book to have a narrow focus,7 the object of his attention is an engaging community, and it makes a vivid case study. The research was done in the 1980s and began to appear as early as 1986. With its barbed wire logo and evocative references to the majesty of Mount Shasta, there is little doubt that in this book the Walter E. Meyer Professor of Property and Urban Law at Yale Law School has carried some of the California foothills back to academe. His prose is lively, and his characterizations of Shasta County are vivid. In fact, this treatment cannot be reviewed without feeling the tragedy of a forest fire that ravaged the area in the fall of 1992. Having been in the property law business for a long time,8 Ellickson has contributed a great deal to the contemporary study of land use policy. In addition to his text, there are many influential articles that amplify the principles of Law and Economics for property. Ellickson’s enthusiasm not only for the Chicago School but also for intellectual inquiry about law permeates the book. We are introduced to conversations and inquiries that link Ellickson to a core tradition in legal academics, and taken to visit some related goingson like Law and Society and Legal Anthropology. In a 1989 article, Judge Richard A. Posner of the Seventh Circuit addressed Ellickson’s theses that the Law and Economics movement had stopped growing, and that the movement might grow again if its practitioners drew from the social sciences of psychology and sociology.9 Judge Posner treats Ellickson’s approach as an interesting proposition—at least until it appears that the other social sci6. “Property: The Founding, the Welfare State, and Beyond,” The Eighth Annual National Federalist Society Symposium on Law and Public Policy, 1989, Harvard Journal of Law and Public Policy 13 (Winter 1990): 67–74; “The Public and Private Realms—the Privatization Movement and Other Developments,” A Federalist Society Symposium, George Mason Law Review 11 (Winter 1988): 139– 173. 7. W.E. Meyer, “Riding Herd on Coase’s Cattle,” Harvard Law Review 105 (1992): 1141–1146. 8. See Robert Ellickson, “Alternatives to Zoning: Covenants, Nuisance Rules and Fines as Land Use Control,” University of Chicago Law Review 40 (1973): 681. 9. Richard A. Posner, “The Future of Law and Economics: A Comment on Ellickson,” Chicago-Kent Law Review 65 (Winter 1989): 61, 57–62.

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ences amount to “a movement away from the central need in the economic analysis of law, which is . . . for the use of scientific methods to enlarge our meager knowledge of the legal enterprise.” The goal for Posner is prediction and control. He considers adding the “other social sciences” to the domain of economics to be “bells and whistles.” Ellickson, on the other hand, is a little more interested in jurisprudential insight. Nevertheless, although he works very hard in this book, Robert Ellickson asks very little of law. In this regard, his book exemplifies the current propensity to see law as handling less responsibility than it once did. Law, we are told, cannot make us better, does not keep us in line, and is generally overrated. Like scholars from critical legal studies and some in the Republican Party, Ellickson believes that too much has traditionally been expected of law, and he would relieve it of some of this burden. The burden is jurisprudential, not practical, although it bears on social responsibility. And, there may be little else that connects Republicans to critical legal studies, but the view of law as encumbered has serious problems and distinct political implications. Order without Law represents a revisionist strain in Law and Economics—a return to basics and an infusion of society. Where Ronald Coase and others had initially suggested that bargaining took place “in the shadow” of the law,10 Ellickson discovers bargaining well beyond the shadow. In the context he explores, but not his framework, the bargaining is in the foothills of law’s High Sierra. The general demeanor he finds in the community is “neighborliness and the expectation that ranchers are responsible for their animals.” The longtime ranchers of Shasta County pride themselves on being able to resolve their problems on their own. Except when they lose animals to rustlers. . . .11 Noting that actors on each side of these disputes do not go to court—and following the lead of scholars who conclude that parties often reciprocally choose the alternative of “lumping it”—Ellickson puts trespass in the context of social life, not law.12 10. Ronald Coase, “The Problem of Social Costs,” 3 Journal of Law and Economics (1960): 1; Robert Mnookin and Lewis Kornhauser, “Bargaining in the Shadow of the Law: A Testable Model of Strategic Behavior,” Journal of Legal Studies 11 (1982): 225, 242–244. 11. Although, “. . . ranchette owners . . . unlike the cattlemen, sometimes respond to a trespass incident by contacting a county official who they think will remedy the problem.” Ellickson, Order without Law, 59. 12. Stewart Macaulay, “Non-Contractual Relations in Business: A Preliminary Study,” American Sociological Review 28 (1963): 55.

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Thus, the struggle between the open range “Traditionalists” and the “Modernists” of the barbed wire fence is the basis for the dispute’s focus. The traditionalists—called cattlemen—let their cattle roam through the unfenced areas around Mount Lassen in the northern Sierra Nevada in the summer and down into the more populated foothills green from Pacific storms in the winter. The mountain meadows are leased from the federal government through the Bureau of Land Management and from various large timber companies like Georgia Pacific and Weyerhaeuser. The cattlemen and the newcomers own the foothill pastures. Ellickson refers to the newcomers as owning “ranchettes,” small parcels generally less than two hundred acres. These terms become sort of nom de propertie, a facet of the constitutive dimension at the root of these disputes. The issue of cattle trespass draws Ellickson to the study of fencing. But, whereas Coase described “. . . the sole benefit of a fence to be the reduction of trespass damage to crops,” Ellickson, turning from legal economics to social anthropology, found cattlemen enclosing their lands “largely to prevent damage to their own livestock.”13 There are still marginal utilities involved by less-active trading. Yet, as one should expect when starting from Law and Economics, “the market” comes to play a large role in the activities. In describing the renegade Mr. Ellis, Ellickson says, “The banks seized Ellis’ cattle, and creditors lined up with claims on his ranch” when the price of cattle dropped to where he could not make his payments.14 Soon this figure was gone, and the disputes he had generated went with him. Of much grander jurisprudential significance, Ellickson’s attention to all that goes on beyond “the shadow” in a throwback frontier community of agreeable neighbors is brought back to Law and Economics as lessons from the real world. According to the author, the findings “. . . may serve as a caution to Law and Economics scholars who have underestimated the impact of transaction costs. . . .”15 Before he finishes, he develops “A Theory of Norms” that reaches well beyond the locus of his disputes. Although presented separately, in the second part of the book, this theory draws on the cattle trespass examples from California and adds a review of other material, mostly historical studies of the whaling industry around Nantucket, to develop the larger normative propositions. The result is a picture of law in terms of two romantic situations, one on either coast, the cowboy and the whaler. And, while both draw their romance from the material of rugged individualism, from John Wayne and Captain Ahab, the message in each case is that the 13. Ibid., 25. 14. Ibid., 38. 15. Ibid., 52.

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communities work as a market and develop ways of cooperating that preserve the peace. Both of the “Law and . . .” movements brought together by Ellickson actually start with disputes rather than law. They do not begin with judicial decisions, police, or even lawyers, not on the surface at least. In both, the question is, what difference does the law make? The view is from the bottom up. Here, the bottom is Shasta County in the 1970s. It is an unstable region. In California at the time, the pressure for development is heavy. Though hours from the nearest metropolis, the area has been “fast growing.” The problems, though viewed as “cattle trespass,” are problems of growth and change. Generally, however, these problems get settled without resort to lawyers or state officials, that is, without regard to law as Ellickson defines this phenomenon. Like Lawrence Ross in his study of drunk driving, Ellickson found that the legal rules in practice were simpler than they were on the books. Like the Law and Society community, he found “reciprocal lumping” and that trespass had to be seen in the context of social life. There are some exogenous variables offered as the reason to “go to law.” According to Ellickson, “Although ranchette owners also use the self-help remedies of gossip and violence, they, unlike the cattlemen, sometimes respond to a trespass incident by contacting a county official who they think will remedy the problem.”16 In a typical year, insurance companies may receive less than ten damage claims from Shasta County residents that have to do with animal trespass. These usually involve the newcomers. The insurance adjusters interviewed by the author could not recall a single claim brought by traditional ranchers against each other over a twenty-year period.17 The two disputes in Shasta County that did find their way to attorneys are to be considered unusual or as involving “bad apples” or “odd ducks” with a propensity to make trouble. We should not doubt, according to research on litigiousness, that this small proportion of disputes going to attorneys is typical. The only disputes that get this far are ones with a depth of feeling and where bad faith is an issue. They reveal a sense of entitlement to legal protection and the turn to the formal agents of the law as an exception in society. Such cases seem to be a good indication that neighborliness has broken down, and they tell us something about the relationship between social structure and the apparatus of enforcement we associate with law. But, it does not follow that they are an equally good indication that law is irrelevant to disputes. 16. Ibid., 59. 17. Ibid., 62.

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In mistakenly making that leap, Ellickson falls victim to a number of bad tendencies. One of these tendencies is to generalize from the present to the past. In the Ellickson study, traditionalists represent the past. They are considered a normative throwback to a putative earlier period of more consensual normative ordering. The present, and perhaps the future, is represented by newcomers whose attachment to more official mechanisms of dispute resolution may be a function of their socialization in other communities, like cities, where presumably, the social bonds are weaker. Another tendency is to equate law with either the formal rules that maybe only law professors know or the official institutions, like courts or police, that operate as the arms of the law. But, just as the kinds of disputes that exist in society have considerable range, from minor misunderstandings to disagreements that cut deeply into the social fabric of a place, law itself must be treated as having a range of manifestations. Law cannot just be what lawyers know. To characterize the terrain of law, this superficially is to be guilty of a tragic formalism since the author shows so much sensitivity to avoiding formalism when looking at disputes. In the end, sociologists of law may have made disputes into society’s reality, but we are wrong to place the disputes or their reality outside the law. Beginning with disputes, Ellickson views law in a distinctive way. In six succinct pages, he draws out the legal rules of animal trespass law. With references ranging from Blackstone, who said “A man is answerable for not only his own trespass, but that of his cattle also,”18 to California’s codes and a variety of local ordinances, to himself, we get a rich picture of the kind of law the author holds out as a standard. This picture of law takes doctrine, statutes, and the statements of public officials as characteristic of the institution. In this way, the law school variety of law becomes the standard for assessing the reach and vitality of law’s empire. In this realm, Ellickson tells us, the standard jurisprudential practice amounts to “one of the most venerable English common law rules of strict liability in tort,” the rule that the owner of livestock is liable for damage to neighboring property even in the absence of negligence. But in the open ranges of the American West, a “fencing-out rule” exists that is favorable to cattlemen. It holds that a victim of animal trespass can recover damages only when he or she has built a “lawful fence” around his or her property. With increased settlement, however, the California legislature passed the Estray Act of 1915. This act adopted the English rule for most of California except 18. Sir William Blackstone, Commentaries on the Laws of England (Yale Law School, The Avalon Project), “avalon.law.yale.edu” 211.

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the six northern counties. Ultimately, Shasta County gained from the legislature a power to designate some of its range as closed.19 Ordinary people do not know much about this law of statutes and shared powers, and, consequently, they do not talk about it very much. When folks do get the law right, Ellickson believes that it is due to their “penchant for simplicity.” This enables them, for instance, to identify the old strict liability rule on cattle trespass, the one that formally applies in closed range. However, the idea that negligence should have to be shown in cases of trespass, which is the predominant view among specialists, is wrong with regard to the closed range. Generally, Ellickson’s rural residents knew little about subtleties in the law. They were unfamiliar with terms like “estray” and “lawful fence.” In addition, they did not realize that a fence “elevates a farmer’s rights to recover” or that “intentional herding on his neighbors’ open range” was in violation of the law. Similarly, those who settle insurance claims operate at some distance from this law. “The liability rules that these adjusters apply to routine trespass claims seemed largely independent of formal law.”20 Thus, law is seen as government rules rather than “double institutionalization” or the reproduction of popular convention. In Part II of Ellickson’s book, Theoretical part, he distinguishes between procedural and constitutive norms. Procedural norms govern duty to transmit information, and they are meant to minimize disputes. One such norm is that in cattle country, you go to the neighbor, not to the police. We know from lots of work that this kind of neighborliness is indeed common throughout America and that the litigation explosion ideology does not accurately portray law in America. But, norms about when you call the police are not all that there is to normativity. For Ellickson, norms that go deeper are constitutive. “Constitutive norms,” he says, “govern a member’s obligations to sustain the group.”21 In the foothills, these norms seem tied to the cowboy symbolism of hats, rifles, and pickup trucks, and the reciprocity that leads cowboys to “avoid the law.” At this important level of community relations, the community is presented in opposition to or “outside” the law. Law, in this sense, is an institution of control from above, a Leviathan that never really gets operationalized. Constitutive norms, as defined by Ellickson, do not seem very lawlike, and, indeed, they do not tell us very little of law although they do indicate some very important things about community. The law that constitutes, as we have been using it, would be evident at the level Ellickson calls constitutive. Thus, it would include procedural 19. 1945 California Statutes 1538–39 (California Agricultural Code {} 17126) (West 1968). 20. Ibid., 51. 21. Ibid., 230.

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norms. For example, in this book the ethnographic focus is a county. It has people, cattle, and boundaries. It is identified in various ways: “The Towering cone of Mount Shasta, actually in Siskiyou County, stands fifty miles due north.”22 Or, “. . . the ranchette owners nevertheless admire both the cattleman and the folkways traditionally associated with rural Shasta County.”23 Here, social life is romantically situated in a place conventionally treated as natural. But, the county is not just a romantic foothill region. It is obviously a legal entity that, among other things, determines the nature of state authority over cattle trespass. The study made sense to Ellickson for Shasta County because in 1973 the County Board of Supervisors voted to “close the range” in a fifty-six-square-mile rectangle of the county. Ellickson notes that the landowners interviewed did know whether their own lands were within the open- or closed-range designation. However, he speculates that the level of knowledge was probably “atypically high” because the range law had been the subject of political controversy. Law in this sense reaches to the ways we know ourselves, and the ways we behave, whether as cowboys or cops, are at their core legally generated. The problem lies in deciphering the implications about law to be drawn from his work. Some of his disputes are as unconstituted by law as the red dirt in the foothills and the mythical presence of Mount Shasta. Some, like those that emerge in land development, are widely recognized as presenting problems for understanding the law. When the law is viewed as outside or separate from disputes, its significance is underplayed. This is true when law is held to operate separate from “the market.” Yet, the buying and selling that makes the market relies on law. Not all economic phenomena are legally constituted, and some that start outside the law get brought in. Ellickson describes the natural boundaries to contain cattle, the ridges, gulches, etc. These are written into leases, and law gives them special meaning. Technology is also constitutive. Throughout the book, most artistically as a logo on each page, barbed wire is an essential element to the closed range. With nature, this prickly metal device joins with the rules of law and convention to delineate the boundaries of property. A lawful fence must have posts at least 16.5 feet apart and consist of three strands of wire. Characterizing law as the archaic lawyer’s law of trespass/liability rather than the practice of ownership is a limitation in this study of law’s power. The practices of ownership are all over the pages. Among other things, these practices define the crucial class distinction between old owners and new owners. When we ask the meaning law has in constituting these relations in 22. Ibid., 15. 23. Ibid., 21.

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property or the more familiar relations in the family, we get at a level of relations missed in the law school–oriented view. Property law is no more neutral than the law of the family. The law enforces ideals and generally changes as they change, or at least in relation to their change. We recognize that in property law and family law there are social relationships. Here, we need to recognize the role law plays in delineating obligations. In a family, law is easier to see after divorce. With property, law is often hard to see unless there is something like a divorce. In either case, it is naive not to see the law’s role, but when we fail in this regard we are simply not getting the whole story. In a divorce, all the law that romance hides becomes more evident. There is a lot of romance in Ellickson’s story, and the resulting view of law in cattle country is insufficient. If we did heighten our perception, of course, we would not have order without law anymore. We would have order, and perhaps law itself, without lawyers, and that might be more appealing than what Ellickson has offered to us. Ellickson finds the law that lawyers know to be uncommon in cattle country, even though he studies the tension between the “pro-cattleman ‘fencingout’ rule” and California’s Estray Act. In spite of this distinctly legal focus, he minimizes the terrain of law by separating law from society. This perspective revives the formalism that earlier confined law to codes and commentaries. Like realism in the study of appellate courts, we are asked to take a socially thin slice of law as the whole thing. The research equates law with the formal rules and says, in effect, that law is not present in ordinary life. This kind of realism orients students of communities away from legal material, distorting the relationship between law and politics. When disputes range from the rules of trespass to the fact of ownership, we see law in operation. In the next section, we develop that perspective by describing the forms of law in grassroots politics. Law intersects with economic and cultural forces to shape the neighborhood. If law and political institutions are seen only instrumentally, either as goodies to be acquired or as processes to use, it follows that the law will only superficially affect the political actor and political activity. It may even seem, as Ellickson professed, that there is order without law. Yet we know, from the work of Derrick Bell,24 William E. Forbath,25 and Catharine MacKinnon, who have addressed race, labor, and gender, that the rule of law, specific laws, and legal institutions are major influences on politics. We wish to do the same for property and public space as a way of grounding politics in law. 24. Derrick Bell, And We Are Not Saved (New York: Basic Books, 1987). 25. William E. Forbath, “Courts, Constitutions, and Labor Politics in England and America: A Study of the Constitutive Power of Law,” Law and Social Inquiry 16 (1991): 1.

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Law on the Lower East Side On the Lower East Side, politics is omnipresent. And, it is a great setting in which to challenge those who would place law in the background of politics and fail to note its consequences. This part of Manhattan has an extraordinary racial and class mix, and the community seems always to be in transition. In the period of this study, roughly from the economic boom of the mid-1980s to the recession that ushered in the 1990s, political conflict erupted frequently. Buildings from Chinatown to St. Marks Place bore banners proclaiming rent strikes or wore graffiti denouncing local developers. Leaflets and posters throughout the neighborhood called meetings or offered distinctive points of view on local and international political struggles. Violence broke out several times between activists and police over the use of the Tompkins Square Park and the occupation of city-owned buildings by squatters. Law is omnipresent on the Lower East Side too; it is just hard to see. The Lower East Side runs from the East River to Fourth Avenue and the Bowery, about a third of the way across Manhattan, and from Chinatown in the south to 14th Street in the north. At its peak in the early twentieth century, the district had a population of over 500,000. It declined to 154,800 until the 1980s, when it began to grow again. Roughly 20 percent of its population received some form of public assistance within the last decade. Housing is extraordinarily diverse. In 1990, the area contained 60,000 government subsidized housing units, one of the greatest concentrations of public housing in New York City. There are also nineteenth century brownstones, tenements, condominiums, squatter settlements, homesteaders, and, during the period in question, the area contained a significant share of the city’s homeless population.26 Politics in the neighborhood involves not just party contests between Republicans and Democrats (or rather, regular and reform Democrats, in this area) or appeals for city services, but, in addition, there are struggles over the definition of ownership, claims to the enjoyment of public space, and appropriate neighborhood responses to economic opportunity. One source of political conflict was government support for investment in luxury coops and reduced subsidies for affordable housing for low- and moderateincome people. Another set of issues involved the use of public space. Some of it had been reclaimed, like the community gardens that sprung up in vacant lots, and some is more traditional, like the area’s largest municipal park, Tompkins Square. While state institutions from law enforcement to 26. Emmanuel Tobier, “Housing Classes of the Lower East Side” (paper, Lower Manhattan Seminar, New School for Social Research, New York, February 1, 1990).

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the Housing Authority were mobilized to enforce the dominant norms of ownership, grassroots groups and individual squatters acted on alternative claims.27 In these neighborhood conflicts, law constitutes “visible and invisible structures” for political life. By focusing on one of the most politically charged communities in the United States at a time when its residents were mobilized—voting, speaking out, resisting confronting the police—we wish to make the case for a greater role for law in politics at the grassroots level. Here, even the name of the area is contested. The “Lower East Side” is geographical, and recalls the eastern European immigration that give the region its identification in American history with the huddled masses immortalized on the Statue of Liberty. In the 1960s, a vibrant counterculture population, assisted by real estate developers, appended the name “East Village” to part of the neighborhood in a move to link it with the Bohemian spirit and higher real estate prices of its neighbor to the west. Because the area is beyond First Avenue to the east, where letters designates the avenues, it is sometimes derisively called Alphabet City. The Latino population was able officially to rename part of Avenue C for the community’s own version of its place. They call it Loisaida, “Spanglish” for Lower East Side. The politics of naming is a highly visible aspect of community politics, often involving law, and when a name becomes official, displayed on street signs or city buses or designating a political entity, it takes on extra significance.28 Law constitutes forums for politics, legal forms shape political claims, and law influences political positions. Our categories capture some of the legal aspects of politics on the Lower East Side in the late 1980s. We call attention to distinctive place of law when we can see the law in politics more clearly that way. We do not, however, mean to suggest that law in this sense operates in the same way we once imagined that precedent operated for the appellate judge. Law structures the community politics through institutions meant to constitute a political space. From constituent service to protest and mobilization, different institutions direct, satisfy, and frustrate political interests.

27. For a history of squatting in America, see John Opie, The Law of the Land: Two Hundred Years of Farmland Policy (Lincoln: University of Nebraska, 1987). 28. Research for this project focused on several political arenas, including local community board meetings, the allocation by New York City of low-income housing resources, and the antigentrification movement. Data collection over a two-year period beginning in the fall of 1988 consisted of attendance at about half of the monthly community board meetings, lengthy interviews with eleven community activists of different persuasions, participant observation of at least a dozen demonstrations in the area, and the collection of dozens of flyers and other materials intended to encourage participation in grassroots political activity. All this was informed by the experience of daily life in the community.

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One of the most salient institutions for politics on the Lower East Side in the late 1980s was the community board. Established by revision of the New York City Charter in 1975, the fifty-nine community boards represent districts with 100,000 to 200,000 residents, designated by the Department of City Planning to reflect the traditional geographic boundaries of New York’s neighborhoods. The approximately fifty members of each community board are appointed by the borough presidents and the City Council, and serve for two years without compensation. The Department of City Planning provides technical and information services to the boards. Community Board #3 represents the Lower East Side in this arrangement.29 The board advises the city on planning, budgeting, and service delivery, and can be quite powerful,30 usually by coaxing or embarrassing rather than by outright grants of authority. The board’s character as a “legal” arena reminds neighborhood people of the authority of the city. Board meetings call attention to the city as a coercive power through a law enforcement presence at meetings. The service component of the city is evident in the information and technical assistance that comes to the board from municipal departments like Parks and Recreation.31 The board constitutes a political forum through law. Here activists shape their claims to fit legal categories that have been defined by the city and state of New York (e.g., tenant co-ops) and by the legacy of the Anglo-American legal system (property rights, the right to assemble). Monthly board meetings became charged in the late 1980s over the allocation of housing and the uses of Tompkins Square Park. Not only were police in attendance, but they were also sometimes positioned around the room with their nightsticks out and helmets ready. Their presence (not generally deemed necessary at community board meetings) was intended to symbolize the city authority behind the board and to keep order. As both symbol and physical force, the police contribute to order maintenance, and they delineate a distinctive forum under the authority of the city. A dozen officers might cover a meeting attended by as few as twenty board members and an audience of only forty or so. The meeting of May 22, 1990, illustrates the use of the community board as a repository of “visible and invisible structures of law” that shape political life. It started with angry protests about the role of the state in disturbances in 29. The district includes part of Chinatown, which has its own distinctive character and problems and is only an occasional participant in community board politics. 30. Peter Marcuse, “Neighborhood Policy and the Distribution of Power: New York City’s Community Boards” Policy Studies Journal 16 (1987): 277. 31. Susan S. Fainstein and Norman I. Fainstein, “The Changing Character of Community Politics in New York City: 1968–1988,” in Dual City: Restructuring New York, ed. John H. Mollenkopf and Manuel Castells, 320 (New York: Russell Sage Foundation, 1991).

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Tompkins Square Park on May Day. Mary, a woman from the squatter group, stated that police surveillance of the park provoked rather than prevented scuffles at what was billed as a “resisters’ festival” (expressing support for resistance to police efforts to put squatters out of otherwise abandoned buildings). A local block association chairman described the heavy police presence in the park as putting the area “under martial law.” An artist and activist invoked the vocabulary of civil liberties to decry beatings by police on the night of May 1 and subsequent harassment of various kinds. When the board took up homelessness in the area, a speaker from the Revolutionary Communist Party said the police “. . . create homelessness and then they attack the homeless.”32 A local priest described the fundamental issue as “who owns the land, who has a right to the buildings.” This meeting showed a community board providing a forum for political discourse where the legal dimensions of the board influenced the discourse. Mary couched her complaint about police behavior within a framework that assumed the institutional legitimacy of those she criticized. On less alien terrain—a street corner or a park bench, for example, where squatters’ claims are often heard—Mary might have made a more extreme claim (she is an anarchist), such as abolition of the police and community control of public security. Her stance at the board meeting supports the view that community boards, with their rules and officially sanctioned leaders, moderate political positions. Another example of constitutive law on the Lower East Side is the law of ownership. Law delineates the social relationship of occupants or potential occupants to types of housing. By housing, perhaps as much as anything else short of ethnicity33 (to which housing is highly correlated), people are known and their interests emerge. The laws of ownership and the social relations they constitute are the terrain of politics. The Lower East Side has been a focus of housing politics for over fifty years, beginning with the innovative “First Houses” constructed by the New York City Housing Authority in 1935. The political manifestation of the law on ownership is to differentiate claimants—as homeless, or owners, or squatters.34 For those occupying 32. In this view, the police that back up the boards are equated with those who allocate housing resources, determine the status of squatters, and enforce city policy in the parks. 33. The role of law in constituting ethnicity seems to be a good deal smaller than in defining property. 34. Housing on the Lower East Side takes more forms than most Americans can imagine. We began the list above but continue here: coops, condominiums, apartment houses, and brownstones; rental arrangements include marketrent, rentcontrolled, and rentstabilized apartments, sublets, subsidized units, conventional public housing (“the projects”), and middle-class state-supported housing (“Mitchell-Lama”). There are other types of ownership best described as transitional, some strictly

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the panoply of housing forms, as well as those who deal in them, the legal definitions and the hierarchies they create are critical. Forms of property establish differing relations to the government are evident in the regulation of construction, the maintenance of buildings, and the processes of conveyance. The law of property shapes people’s political rights, their actual and potential access to instruments of political leverage, and their objectives as political actors. The residents of the Lower East Side participate in a politics of property evident in their use of legal categories to describe their housing. For instance, tenants can tell you that they live in “Section 8” or “old law” housing. Abandoned tenements link the area to earlier waves of immigration, providing opportunities for squatters and developers. The community gardens in abandoned plots provide another focus for claims of entitlement. For many residents, activism may fade once he or she has acquired legal stability through tenancy or ownership. Here, the law’s imprimatur on property symbolizes political resolution.35 We know that ownership frames the physical and social world. What a politics of law needs to account for is the way that property demarcations, such as those between private and public space reflecting the laws of ownership, constitute social relations on the Lower East Side. Tompkins Square Park is terrain contested by many different users. Under city control, the park draws political struggles. The park is a forum, like the community board, but because its use is contested, the law designating the land between Avenues A and B at 9th Street a park makes particular claims possible. Use of the park is highly contested compared to rental property or that held as “fee simple” title. The legal distinction between ownership and opportunity for use is constantly at issue on the Lower East Side. While walking, down the sidewalk usually, one is made aware of what is public and what is not. For a homeless person sleeping, tentatively, on the steps of the 10th Street public library, the possibilities contained in the laws of property become behaviors. Ownership is represented in material ways (locks, fences, razor wire) and more discursively (in language that says “Get out,” “Where is the rent?” or “Come in”). legal and some not; homesteading is in the former category, as are shelters. Lofts vary. The “squats” are not legal, although the city’s “thirty day law” decrees that a squatter who can prove residence for at least thirty days is no longer a trespasser under the law and must be accorded the due process protection of formal eviction. There are also the homeless, on benches, in tents, and in doorways. The nontrivial sense in which laws “make” people homeless is the sense in which law constitutes our claims. 35. Marlis Momber, a participant in the homesteading movement, comments, “When the ownership thing takes over, they no longer care about their fellow man.” Interview with John Brigham, March 16, 1990.

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Community professionals in the neighborhood mobilize and interpret the law as a part of their political life. One interpreter of this sort is Donna Ellaby, Director of Good Old Lower East Side, who characterizes her activism as organizing tenants to “raise the stakes on what it means to be a property owner.”36 She says that she carries her version of the housing code around in her head and rarely calls a lawyer or the police. For Ellaby, the law is “a luxury item” in politics. Yet, she is keenly sensitive to the effect of the economy on ownership. As markets drop, she notes that ownership shifts from individual landlords to banks. This is followed by federal banking insurance and regulatory agencies, “the RTC and the FDIC or Freddy Mac or Ginny Mac.” Law in politics is influenced by nonprofit grassroots organizations that have replaced local party machines on the Lower East Side as mediators between citizens and officialdom. The politics of the paid organization staffs—artists, city planners, housing and public health specialists, social workers—are shaped by their state-created status as professionals certified to assume the role of advisors as to the politics of property claims. They put together tenant management schemes and get financing to rehabilitate abandoned buildings instead of helping raise the proverbial barn. More important for politics, their planning provides an information base and forms for mobilizing political demand. Where party bosses had access to officials, the organizers add expertise in the official culture of ownership. The community professionals understand antigentrification politics as a function of economic development pressures and the rules around which groups can mobilize.37 Conventionally, politics exists along a spectrum where intensity and comprehensiveness of claims defines the position of actors. Law plays a formative role in giving meaning to the ideological perspectives held by activists in the neighborhood. Laws put some politics at the center and some on the periphery of the political spectrum. On the Lower East Side, political activity covers efforts to maintain traditional power relations in the neighborhood, various reform inclinations, and an imaginative array of transformative positions. Laws such as those about the responsibility of renters and the expectations of owners delineate the relationship of one political claim to others. Laws are often the variable in reform movements, while they act as impediments in more transformative politics and as resources for those who would maintain the status quo. 36. Donna Ellaby, interview with Diana Gordon, October 13, 1992. 37. Lisa Kaplan, interviews with Diana Gordon, December 3, 1990; January 30, 1992.

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Operating with reference to the legally constituted hegemonies of state and market, reform movements on the Lower East Side envision different practices such as public housing and sweat equity. The “InRem” housing program of New York City is a characteristic reform movement. “InRem” refers to housing taken over by the city as a result of default on taxes owed. During the 1970s and 1980s, the city took over thousands of buildings, creating a vast array of small, run-down properties for which the city was responsible. These properties were put to a variety of uses, including the selfhelp projects that are at the center of the “In Rem” program—tenant co-ops, for instance, and sale of the properties to nonprofit organizations, which develop them as low-income housing. Several communitybased nonprofit organizations took advantage of the city’s distributive schemes to get abandoned buildings back on the tax roles, adapting Scandinavian models of cooperative housing to urban American needs. Since the property was not commercially viable, reformers had an opportunity for experimentation. Even as activism slowed in the 1990s, some reform efforts continued around the creation of a “mutual housing association,” which provides low and moderateincome residents a kind of social ownership that avoids the risks of both market housing and “the projects.”38 Some political activists on the Lower East Side prefer to mount more-radical attacks on the basic political economy of property. The squatters (and a few of the homeless) envisioned “decommodification” of housing, and they have been aggressive in using forums from the community board to The New York Times to state their case. They seek to establish social rather than individual ownership and remove housing (at least for lowerincome people) from the private market. Here, need rather than legal right establishes the claim, and possession is its realization. The law, in this sense, “makes” them radicals. Frank Morales, a clergyman who works to organize squatters (and is one himself), described the movement to take over unoccupied buildings as “a logical and ethical response to suffering” that creates “possibilities for people to take charge of their own lives.”39 Morales expressed bewilderment at the resistance of liberals to squatting, illustrating his point with a reference to the Dinkins administration then in City Hall calling squatters “hardened criminals.” Here, the claim “Housing is a Right” aspires to a transformation in property that goes well beyond the reach of conventional institutions or the politics of reform. 38. Mutual housing involves a combination of central and tenant management, heavy involvement by community organizations, 100 percent financing for construction, plus Section 8 subsidy for some tenants. Ibid. 39. Frank Morales, interview with Diana Gordon, November 8, 1990.

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The squatters explicitly place themselves on the periphery of the law and wage a cultural politics that appropriates the language of rights to their own ends. For Morales, “the language of need, of hunger, can extinguish conceptions of right, but people are forced to play the game of rights” because claims based on expressions of need do not receive a hearing. To the extent that the law is state power, its adoption in forms of community politics is limiting. The squatter discourse includes not only legal images but also innovation. In a flyer produced by the Citywide Action Committee to End Homelessness for the “Free the Land Mayday 1990” celebration, activists made the claim that the principles of the Fifth Amendment provide a basis for taking private property for the “greater public good,” not by ordinary governmental processes, but by physical occupation—and not just on the Lower East Side, but throughout the nation. This aspirational politics uses the language and form of the law to make intelligible a claim that would transcend the traditional institutions and expectations of law. The squatters explicitly and consciously redefine the meaning of eminent domain. Two of the squatters defended their decision to mount armed resistance to any potential efforts by the city to remove them from their buildings by asserting their right to selfdefense. When challenged by reform-oriented activists as to the lack of a positive right to defend their dwelling in such a situation, the squatters fell back on a kind of natural law argument for which their conception of human dignity replaced public authority. Of course, framing an issue in legal terms is a traditional way to defend the status quo. During one of the battles over Tompkins Square Park, representatives of residents near the park, many of them homeowners, circulated a plea, titled Bring Back the Park, to their neighbors to attend a special meeting on the condition of the park. They urged that residents insist that the city enforce local law to get the homeless out of the park. Prominently appended to the memo were the park rules regarding storage of materials, camping, fires, etc. Here, political strategists relied on law to defend the property interests of homeowners and small-business proprietors. Invoking the rules assured less-political residents a legitimate basis for denying others access to a public space. The park rules, to which middle-class homeowners and moreconservative residents turn, function in both instrumental and symbolic ways at least in part because uses of the law allow interests to be masked as an expression of belief in the status quo.40 Our purpose is not to uncover a true politics behind the mask of the law. Rather, we wish to understand the ways in which law, in the form of parks department rules, community boards, forms of housing, and claims of right 40. Illustration #2.

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determine the sort of politics that is possible. Sometimes, it seems as if the use of legal form and vocabulary may be nothing more than a convenience in an instrumental politics. And, of course, some uses of law on the Lower East Side are instrumental. As shorthand, calling warehousing a “crime” is an attempt to marshal at least images of law in the processes of struggle, bypassing the role of government in defining what is “criminal.” Still, these retorts are primarily expressive, using law to inform us about what groups want. But, law is also the terrain of politics. Indeed, enforcing a curfew in the park, an old rule whose adherence was only proposed in the late 1980s, spawned the violent police riot during the summer of 1988.

Law’s Neighborhoods From portrayal of legal politics in northern California, on the Lower East Side, in a university setting, we see how law operates in communities or neighborhoods. Law informs politics in many ways. We suppose that law is always more significant in political struggles than contemporary commentary would have it be. By focusing attention on the Lower East Side, an area known for its politics, Diana Gordon and I hoped to establish that law is not something that is simply the result of politics. We see political activists whose politics are different because of the language, purposes, and strategies, which exist as law (federal, state, and local). Some of the work on which we relied illuminates the various forms of law in the politics of such activities as an assertion of right (gay activism in the context of the AIDS epidemic) and the challenge to law as remedy (the legal academy’s claim that law has no force but is merely rationalization). The present study takes another perspective with its attention to forums, claims, and political position. The different roles of the law in politics reveal political activity in a mutually constitutive relation with the law. This is not a precise determination. Sometimes, social factors influenced by law in one arena, such as divorce in family law, will have consequences in another area, such eviction, in the law of property. Both may contribute to alienation that may well erupt as political dissent. Nor is the logic of legal claims an issue for us. Squatters may simultaneously claim that their right is established by their need and not by public authority and also plead for concessions from the government. Property owners bring various social connections and forms of wealth to bear when they struggle against less-well-heeled activists. Our point is not to map all the influences of law on politics or establish limits to the political that are distinctly legal. The point is rather that we sometimes ignore law by operating at the instrumental level with reference to what laws do.

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At the heart of the Lower East Side is a case in point, Tompkins Square Park, “a barometer of New York City’s passions.”41 The park is a ten acre square that has been a public forum for a changing community since Irish and German immigrants, thrown out of work by the economic panic of 1857, demanded that the city give them jobs and tore apart the park benches for bonfires to dramatize their desperation. Between 1988 and 1992, many confrontations, some verbal and others violent, took place over various issues: a proposed curfew for the park (to oust both revelers and the homeless at midnight), a tent city constructed by the homeless in the park (and housing more than two hundred people during the summer of 1989), the use of the park’s band shell for rock performances, and the closing of the park for renovation. The park is a legally constituted forum. In a sense analogous to the community boards, it constitutes a political space. Concerts and happenings now are the order of the (political) day with May Day events, bringing out legions of New York City police. At another time, camps of homeless people in individual shelters operated under the cover of the park’s no-curfew policy. Here, the park became a cause or a claim. It was something to fight for. But, in the struggle, differing positions on its use determined what side one was on, and the park became the basis of whether one was a radical, a reformer, or a conservative. Does that make law whatever one wants it to be? Is this the fallacy of the position we have offered? Of course, we hope not. Rather, it seems that law in the constitutive rather than the instrumental sense operates in politics without necessarily determining anything in the limited sense we usually use to talk about politics. But then, the law does often determine a great deal, and its limits can be quite precise when it comes to the presumptive use of public force or a prior right to allow access on a cold winter’s night. In the end, for reasons we hope have been made evident, we reject the slogan “Die Yuppie Scum.” Realizing that many have expressed the willingness to die for the right flat in New York City, this is the sort of rhetoric that tells us very little about the constitutive role of law in politics. Like formal sources of law, the highly charged rhetoric of politics on occasion takes us away from the more fundamental ways in which much of politics depends on law. Sometimes, in fact, because we understand politics as the play of interests we pay little attention to the ways in which the law structures these interests. This inattention is a barrier to understanding the nature of politics. On the Lower East Side, it is also a threat to a distinctive neighborhood.

41. Marci Reaven, “Tompkins Square: Past and Present,” text for exhibition, Municipal Arts Society, 1989.

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The Socio-Legal Community This position is in response to the prevailing paradigm in socio-legal scholarship, which holds that politics and other social forces drive law and that putting law in the driver’s seat—looking at things “the other way around”— either smacks of formalism or simply is not interesting. The “politics drives law” position is often simply grounded in an instrumental view of law. This instrumental view is not held to the same degree in every discipline. Instrumentalism remains quite strong in political science, and, in the guise of “public choice” theory, it seems to be gaining strength. In the legal academy, instrumentalism has links with realism and grows currently under the banner of Law and Economics. In Law and Society, scholarship instrumentalism is weaker, at least from the evidence of public statements and current importance of interpretavism. But, even here the prominent work we turn to suggests attachment to an instrumental perspective. I do not mean by a constitutive theory of law that all politics, much less all social life, is law. When someone chooses to live on the Lower East Side, we do not say that decision is constituted by law. But when that choice involves purchase of a house or condominium, and a politics in defense of the value in that purchase follows, the law of property may feature prominently in that politics. For instance, agitating to remove a homeless encampment in the neighborhood—one form of politics on the Lower East Side—is legally constituted. To constitute means to stand at the core. A constitutive approach looks at those instances where law is at the core of the phenomena being studied. In this case, we look for law at the core of various political activities. Calling attention to the constitutive role of law is, of course, not original in this treatment. But, neither is it yet widely practiced. The constitutive position had been suggested some time ago by Karl Klare42 and Robert Gordon,43 and has been articulated in depth by Alan Hunt. The term is definitely becoming more common,44 yet the constitutive role of law is insufficiently instantiated in socio-legal scholarship and deserves to be addressed in order to settle its meaning and develop its implications. Law is not always an independent factor in politics. Some politics makes law. We know that. But, some law makes politics. We do not seem to know that as well. The power of the instrumental paradigm in socio-legal research reflects the success of legal realism. Realism brought politics into such hallowed insti42. Karl Klare, “Law-Making as Praxis,” Telos 40 (1979): 123, 128. 43. Robert W. Gordon, “Critical Legal Histories,” Stanford Law Review 36 (1984): 57. 44. Lucy E. Salyer, “The Constitutive Nature of Law in American History,” Legal Studies Forum 15 (1991): 61.

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tutions as the Supreme Court and spread the message that the key to law was through dissent and disputes. The Lower East Side seems like a very political place. Without bringing back the pre-realist conception of law as neutral rules, we can still see a constitutive role of law in grassroots politics. Its benefits are evident in the persistence of an instrumental relationship between law and politics in some contemporary socio-legal analysis. Examples of how law constitutes politics on the Lower East Side offer a contrast to the instrumental tradition. The significance of the constitutive position is in many respects in its capacity to break through a positive epistemology that sustains the Anglo-American system of legal authority. This project is both jurisprudential and sociological; that is, it seeks to correct a perception that inhibits social research on law. It is about the nature of law, and it is about a particular place. In fact, what we say about law in this place needs to be said about law generally. Realism in law and its other manifestations, such as behavioralism in political science, has been so successful that scholars find it hard to move beyond the instrumental view of law to its role in constituting social and political life. Although some social critics aspire to see law as “part of a complex social totality in which it constitutes as well as is constituted,”45 much of the critical work in law, as well as the conventional understandings that support positivist social research, see law in instrumental terms. Law is equated with rules, such as a fifty-five-mileper-hour speed limit, rather than practices, such as driving up to sixty-two miles per hour where a ticket gets more likely. Where practices are considered relevant to law, however, as in some contemporary versions of interpretive research,46 these practices may be able to help articulate the consequences of a constitutive perspective. I draw from theories of interpretation in legal scholarship and methodological concerns in social science. The legacy goes back to the realist tradition incorporated in much legal analysis after the World War II. In the social sciences, the positivist dichotomy between theory and reality was wearing thin by 1970, and interpretation became a way to view law not governed simply by texts but by people reading texts. Two stances emerged. The first, a relative or indeterminacy position, combined feminist scholarship such as the work of Carol Gilligan with deconstruction, legal pluralism, and a critique of rights. This position emphasized differences, particularly between women

45. David Kairys, ed., The Politics of Law: A Progressive Critique, rev. ed. (New York: Pantheon, 1990), 6. 46. Carol Greenhouse, Praying for Justice (Ithaca, NY: Cornell University Press, 1986); Sally Engle Merry, Getting Justice and Getting Even (Chicago: University of Chicago Press, 1990); Barbara Yngvesson, Virtuous Citizens, Disruptive Subjects (New York: Routledge, 1993).

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and men, and supported scholarship on marginality. But, indeterminacy as a view of law also limited the social responsibility associated with rights. The second, a constitutive approach, was a post-Marxist alternative to the indeterminacy position. This approach, or at least affinities to it, were introduced into the socio-legal community through critical theory and were suggested in various scholarly pieces, such as that on the city “as a legal concept,”47 some feminism,48 and critical race theory. But, for the most part, the indeterminacy position has dominated discussion in the legal academy, leaving positivism and instrumentalism pretty much intact. Positivism in scholarship about law and politics persists in spite of the existence of constitutive currents in the professional literature. Examples include important books at either end of the legal process, at the Supreme Court49 and in local contexts.50 This work has been widely discussed, and its reception indicates continued enthusiasm for the positive paradigm. The prominence of this kind of work suggests the continuing need to present the constitutive framework for law. In this chapter, the focus is on the local where the material is more evident and where it is less likely to be lost in the epistemology of policy. Some political scholarship makes the mistake of equating constitutivism with decenteredness. Indeed the problem itself is part of the “politics at the top” perspective that finds the plural and the populist strains in law countering the presumed power and prominence of high courts. It is both possible and useful to situate high court scholarship in the culture and to better understand the mutually constitutive processes that elevate the institution.

47. Dirk Hartog, Public Property and Private Power: The Corporation of the City of New York in American Law, 1730–1870 (Chapel Hill: University of North Carolina Press, 1983). 48. Mary Joe Frug, Postmodern Legal Feminism (New York: Routledge, 1992); Catharine MacKinnon, Feminism Unmodified (Cambridge, MA: Harvard University Press, 1987). 49. Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model, 6th ed. (New York: Cambridge University Press, 2002). 50. Ellickson, Order without Law.

5 D E F ACTO D ISCRIMINATION THE

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? Through our history, it seems that the black robes have been more devastating than the white sheets. REV. JESSE JACKSON

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n the United States, the constitutional framework that emerged from the Civil War began to stabilize on race in the 1950s. It has remained remarkably stable since then. Not only has the Supreme Court made only minor changes, but the way that the Supreme Court understands constitutional equal protection continues to have a close relationship to what most Americans think about race and equality. In the U.S. presidential campaign of 2008, for instance, Barack Obama campaigned as if race did not matter. Although his following among African Americans was strong, he told his life story as a person of both black and white parents in a fashion not unlike the “color-blind” legacy of Brown. Yet, there are tensions. The received wisdom on racial equality, particularly the doctrine of color blindness and the de facto/de jure distinction, are flawed. Although the tension has not erupted, issues under the surface suggest a disjunction between the American experience of race and what the justices of the Supreme Court have been saying. The failure of integration and the sham of color blindness challenge the validity of the fifty-year-old constitutional equal-protection model.1 Sometimes, the reality of color-consciousness in America challenges the prevailing constitutional doctrine of color blindness. 2 Back when this 1. Alex Kotlowitz, “Benjamin Chavis: A Bridge Too Far?” The New York Times Magazine, June 12, 1994, 41. This is a reprise of the Black Power ideology that challenged but did not topple the integration idea. 2. Spike Lee’s Do the Right Thing.

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book was being formulated, the resignation of Justice Thurgood Marshall from the Court and the nomination of Clarence Thomas to replace him highlighted the racial tension in the politics of constitutional law. 3 At about the same period, the acquittal of the police officers filmed beating Rodney King in Los Angeles led to riots that made it hard for white America to ignore the racial facts of city life. And, almost as starkly, Americans received the acquittal of O. J. Simpson on murder charges differently, depending on whether they were black or white. In the decades that followed, an increasingly conservative Supreme Court buttressed the doctrine of color blindness while a gap seemed to widen between constitutional doctrine and social practice. In 2008, this led to the awkward denunciation of his longtime minister Jeremiah Wright by candidate Obama after racially charged sermons came to dominate the news. In addition, the variant of constitutional equal protection that bolsters the claim of color blindness by distinguishing between de facto and de jure discrimination divides law from reality. The perception that ideas can be separated from reality is crucial to the revival of an otherwise archaic tradition in law that is still articulated in Latin.4 This chapter looks at the ideology of integration as a reaction to Plessy v. Ferguson and “color blindness” as the conventional basis for the racial liberalism that constitutes the law on race in the United States. We conclude by discussing democratic politics and “bad attitudes” in the context of the traditional view that courts are better able to safeguard civil rights than are legislatures or voters.5 Since 1954, Americans have learned to see the conditions of life for blacks in terms of policy failures rather than unconstitutional discrimination.6 Unlike the drinking fountains and schools in the South a generation before, the racial divides characteristic of urban America today are considered unfortunate but not illegal.

3. In the case of the replacement for Justice Marshall, the candidate was seen in the light of Marshall’s life, since after winning as a litigator in Brown v. Board of Education, Marshall went on to fashion civil rights law from his seat on the Supreme Court. 4. I have benefited from comments on an earlier draft by Christine B. Harrington, Louis Fisher, and Jeff Wright. That work was partially in reaction to the way Harry Hirsch treated social facts in his book for the series “After the Law” with Routledge Press. 5. This discussion has been influenced by the notion of an “[e]thno-juridical discourse,” which is, “. . . a previously unclassified civic language through which the racial limits of American citizenship were constructed from the late 19th to mid- 20th century.” In such a discourse, the “. . . concepts of race and law are mutually constitutive.” Mark S. Weiner, Americans without Law (New York: New York University Press, 2006). 6. To employ an image from another realm of constitutional law.

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Ideologies of Equal Protection The constitutional paradigm on racial equality in the United States has been relatively stable for nearly fifty years. Since the ruling in Brown v. Board of Education in 1954, it has been hard to challenge the idea that race should not be a basis for separation and that racial exclusion is presumptively unconstitutional. Derrick Bell brought home the depth of the consensus. In his book And We Are Not Saved, he described the fate of Lewis M. Steel, a staff attorney at the NAACP who was fired for advocating abandoning the model of Brown,7 with its emphasis on integration. Steel had published an article in The New York Times Magazine questioning the foundations of Brown and, at a meeting the day after, the national board forced Steel out of the organization. The way of thinking inherited from Brown turned away from the promises of material equality suggested under the doctrine of separate but equal. Brown turned away from the promise of equal protection in Plessy v. Ferguson (1896). In fact it disavowed the “equality” under separate schools in order to address the psychological effects of separation under law, as lawyers for the NAACP understood them. When the Court, in Brown, says “minors of the Negro race” have “. . . been denied admission to schools attended by white children under laws requiring or permitting segregation . . . ,” the central concern is lawmaking to segregate. Later in the opinion, the Fourteenth Amendment’s protection is defined “. . . as proscribing all state-imposed discriminations against the Negro race.” The opinion puts aside the issue of inequality, holding that the schools in question have been found to be substantially equal. The emphasis is clearly on segregation of schools with the sanction of law.8 Color blindness, which arises as an interpretation of Brown’s legacy, has its roots in Plessy and the ideas that Brown reacted to. It becomes a force in constitutional law as much for its appeal to a larger audience as for its doctrinal roots. Part of this appeal is as a “pure” concept, like freedom of expression. But the other part is a successful development of the doctrine since the 1970s when President Richard Nixon fought the move of antidiscrimination to the northern suburbs and the threat of busing with the de facto versus de jure distinction. Subsequently, the doctrine associated with “color blindness” grew in significance, and antiseparation militancy became the stan7. And We Are Not Saved: The Elusive Quest for Racial Justice (New York: Basic Books, 1987), 60–61. See also Steel, “Nine Men in Black Who Think White,” The New York Times Magazine, October 13, 1968. 8. Kristin Bumiller, The Civil Rights Society: The Social Construction of Victims (Baltimore: Johns Hopkins University Press, 1988); Alan Freeman “Legitimizing Discrimination through AntiDiscrimination Law: A Critical Review of Supreme Court Doctrine,” Minnesota Law Review 62 (1978): 1049–1119.

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dard for interpreting equality in the American Constitution. That doctrinal militancy clashes with the policy process, and pits a simple constitutional standard against the more complex policy process. But, forty years later in Parents Involved v. Seattle, decided in 2007, the Supreme Court dropped any pretense that constitutional doctrine will produce an integrated society. In an aggressive majority opinion wielding the color blindness standard and vigorously directed at the dissent offered by Justice Breyer, the chief justice dismissed efforts to promote racial diversity, avoid racial isolation, or produce racial integration.9 With “strict scrutiny” as his doctrinal weapon and color blindness as his rhetorical standard, Chief Justice Roberts tossed busing plans that had operated in Seattle, Washington. But it was the tone more than the words that heralded an end to the liberal integration policies in operation from the 1950s and placed the constitution firmly on the side of the white resistance.

Race and Doctrine Some of the current developments can be traced to implementation of the Brown decision, which clashed with some ideas about how constitutional doctrine should develop. The result has been a tradition in contradiction: one that promises both “Equal Opportunity and Affirmative Action.”10 After the second Brown decision, the Supreme Court said nothing more about the nature of discrimination for nearly six years. Instead, the focus became the South, its law, and its judges. One artifact of this period, the opinion by Judge John J. Parker in Briggs v. Elliott (1955), best characterized the constitutional route of southern resistance. While southern resistance decried “the law” of Brown in the face of their reality of black and white as separated, created a formulation that would later provide wiggle room up north. Parker articulated southern strategy when he held that Brown did not call for integration, merely an end to segregation.11 The move away from total resistance to a new rhetoric of choice and condition foretold where subversion of the ends in Brown would come from. For the jurists of the Warren period at the Supreme Court, the white public was a threat to rights and to the Court’s authority. Thus, in Cooper v. Aaron, the Supreme Court claims for the first time that “the federal judiciary is supreme in the exposition of the law of the Constitution.” But the 9. Parents Involved v. Seattle (2007), 8. 10. See Brennan infra on the relevance of the 1964 context to the 1978 decision in Bakke. 11. Briggs v. Elliott, 132 F. Supp. 776 (1955); see also J. W. Peltason, Fifty-Eight Lonely Men (Champaign: University of Illinois Press, 1961), 22.

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rhetoric of civil rights fit nicely with the emerging stature of the Court. Martin Luther King Jr.’s “I Have a Dream Speech” expressed the vision of an integrated world. In King’s speech, the world of imagination is set against reality. Attention is drawn from who is responsible for the conditions of segregation and directed at a society without racially identified worlds. Its immediate impact in law was on the 1964 Civil Rights Act, but it also expressed the vision of an inevitable integrated future that we see expressed in interpretation of constitutional equal protection. The speech has become an icon in the language of equal protection. With its dramatic image of white and black children walking hand in hand in some future time, the speech emphasizes integration.12 King turned to Theme often, as when he wrote: The natural bloom of flowers is a composite of many colors and shapes that are pleasing to the eye, as well as to the sense of smell. Man in his many forms and colors presents the same concepts of beauty.13 This image was presented in contrast to the one that existed. Debate in Congress over the 1964 Civil Rights Act began when President John F. Kennedy submitted the bill. Although it may well have been the assassination of President Kennedy, the ascendancy of Lyndon B. Johnson to the presidency, and the civil rights movement that led to its passage, Kennedy’s words are worth noting in assessing the kind of discrimination that the act was attempting to reach. The Negro baby born in America today, regardless of the section of the nation in which he is born, has about one-half as much chance of completing high school as a white baby born in the same place on the same day, one-third as much chance of completing college, one-third as much chance of becoming a professional man . . . a life expectancy which is seven years shorter, and the prospects of earning only half as much.14 The emotional content of the words is infused with the tenor of past and future events. Its vision confronted the facts of life for black America. And, its logic drew on the emerging constitutional interpretation of equal protection. 12. In a 1962 article, King referred to the movement as the “integration movement.” Martin Luther King Jr., “The Case Against ‘Tokenism,’” The New York Times Magazine, August 5, 1962. 13. Charles W. Fisher, Minorities, Civil Rights, and Protest, 2nd ed. (Belmont, CA: Dickenson, 1967), 27. 14. Theodore C. Sorensen, Kennedy (New York: Bantam, 1965), 530.

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While public attention focused on defiance, a more strategic accommodation in the South began to limit the reach of Brown by focusing on its de jure qualities. As the North became attentive to its neighborhoods, community became a countervailing force against the need to eliminate a segregated society. De facto, the law of reality, joined northern and southern resistance in an alliance of politics and convention. It ended doctrinal development. Congress was reluctant to define discrimination too precisely. Political reasons had to do with passage of the legislation and hope that administrative discretion would also be advantageous to those proposing the legislation. Debates at the time struggled over the pace and scope of integration, with early concern about racial balancing finding its way into the act as a limit on busing. In particular, the issue of meaning for equal protection perceived in Congress oscillated around the de facto/de jure distinction. Congressional action on civil rights became central to the opinion by Justice Brennan in Regents v. Bakke. On the defensive in 1978, liberals tried to hold the line by embedding their decision in understandings from a decade and a half prior. According to Brennan, “We agree with Mr. Justice Powell that, as applied to the case before us, Title VI goes no further in prohibiting the use of race than the Equal Protection Clause of the Fourteenth Amendment itself . . . It was clear to Rep. Cellar that Title VI . . . was not placing new substantive limitations upon the use of racial criteria but rather was designed to extend to such facilities ‘the existing right to equal treatment.’ . . .”15 As Justice Brennan pointed out in Bakke, “Many questions, such as whether the Fourteenth Amendment barred only de jure discrimination or in at least some circumstances reached de facto discrimination, had not yet received an authoritative resolution.”16 The success of color blindness led to hypersensitivity about quotas and analogous special treatment. Justice White, writing for the majority in Washington v. Davis, in 1976, drew from the cases beginning before Brown in considering the claims of black applicants to the Washington, D.C., police force that a test for admission was discriminatory where four times as many blacks as whites failed the test. White placed special emphasis, however, on Keyes and the delineation of unconstitutional state action as having the “purpose or intent to segregate.” Justice White left open the possibility that a discriminatory intent might be inferred from data on impact, but the jurisprudence of such inferences failed to develop. Increasingly, complex realities were considered outside the narrow frame of constitutional protection. 15. Regents of the University of California v. Bakke (1978), 16; see 110 Cong. Rec. 6050, 6544, 12677, 13820. 16. Ibid., p. 339.

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The debates over the 1990 and 1991 Civil Rights Acts reflect the struggle over the meaning of equal protection. The first bill came out of committee in the summer of 1990 and was branded as a “Quota Bill” by Republicans. President George H. W. Bush vetoed it. The bill was designed both to modify or reverse a series of conservative Supreme Court decisions17 that made it harder for minorities and women to win job bias suits and also to expand monetary damages for the victors in those suits. The House passed the second bill in the early summer of 1991, and it was debated in the Senate as that body began to consider the nomination of Judge Clarence Thomas to succeed Thurgood Marshall on the Supreme Court. The 1991 act was not precisely about desegregation—the standards are different—but rather about the paramount distinction between discrimination against which there is protection and discrimination that is beyond the reach of the law. There is little law Latin here, but the de facto/de jure distinction has a bearing on the debate. Twenty years after the Warren Court had passed from the scene, the conservatism of the Supreme Court became more consistent, and equalprotection doctrine was transformed so that it became harder to prove intent to discriminate. Where the earlier approach had set the law against the practice, Justice White’s description of the Salmon canning operations in Wards Cove is laced with vivid pictures of the environmental and social distinctions that produce and justify a racially stratified workforce. The issue was the “disparate impact” theory of liability in Title VII of the 1964 Civil Rights Act where a “facially neutral” employment practice may be judged illegal “without evidence of employer’s subjective intent to discriminate.”18 At the same time, de facto presumptions suggest that human intention is less and less substantial.19 The facts become a justification for discrimination, a limit on the reach of equal protection, and a cap on the obligations of employers.

17. The most prominent of which were Patterson v. McLean Credit Union 491 U.S. 164 (1989); Wards Cove Packing Co. v. Atonio 109 S.Ct. (1989). 18. Although the chapter focuses on race, it is impossible to ignore the parallels with feminism. See Catharine A. MacKinnon’s Toward a Feminist Theory of the State and her discussion of difference and dominance in which she holds that “sex discrimination law . . . sees equality and gender as issues of sameness and difference.” Where equality is about sameness and sex is about difference, sex equality becomes an oxymoron. This is in much the same way that “Equal Opportunity/Affirmative Action Employer” is oxymoronic. Sex takes the place of de facto in sex discrimination law and equal remains “ideal.” 19. Wards Cove Packing Co. v. Atonio, 109 S.Ct. (1989).

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The de Facto/de Jure Distinction A distinction between fact and law emerges in the antibusing crusades that were themselves reactions to the politics of implementation. Here, the reciprocal relations between courts and the community are the driving forces. With roots in the “state action” doctrine, the distinction emerges in the 1970s to transform the ideology of equal protection from an instrument of social change to an anti–affirmative action barrier. The doctrine that equal protection of the law applies only to de jure conditions parallels the idea that the ghettos of America are “natural” rather than the consequence of state or constitutional patina. This limitation on equal-protection doctrine reflects a transformation in the ideals of equality from its high point in the civil rights movement. Until well after Brown was decided, de facto as a term of art in American law had little relation to equality. This phrase and its companion were more fully developed in international than in equal-protection law. The international law quality of the dichotomy goes back at least to Blackstone’s Commentaries.20 It develops from the “law of recognition” where the issue was sovereignty and the need was for taking account of the actual state of affairs, such as a revolutionary government, whether or not the government was legal in the formal sense. In 1877, Justice Stephen J. Field wrote an intricate treatise on the legal status of the Confederate States during the Civil War in Williams v. Bruffy, a case concerning the obligations to the Confederate State of Virginia. For Field, “[A] de facto government enjoying belligerent rights, has control over the territory it holds, and its laws are binding.”21 To Field, the Confederate government was not a de facto government. Rather, “[w]hilst it existed, it was simply the military representation of the insurrection against the authority of the United States. . . .”22 At about the same time, the “State Action” doctrine was developed to separate government conduct from private action. It was based on the idea that protection in the Fourteenth Amendment had not extended to private conduct abridging individual rights since the Civil Rights Cases.23 Responding to the Civil Rights Act of 1875, the Court split between a majority holding that congressional authority under the Civil War Amendments reached only to state action, and Justice Harlan in dissent who believed this view “entirely too narrow and artificial.” State action comes from the distinction between actions taken as a matter of law 20. Vol. 4, pp. 77–78. 21. Williams v. Bruffy, 96 U.S. 176 (1877), 181. 22. Ibid., 191. 23. 109 U.S. 3 (1883); see also NCAA v. Tarkanian, 109 S.Ct. 454 (1988).

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and conditions that simply arise from choices made in society, the de facto/ de jure distinction. While the terms de facto and de jure were seldom applied to equal protection, the arguments in Plessy v. Ferguson break down according to a majority refusing to face the reality of domination and the lone dissenter bringing forth the now embarrassing “reality” of the inevitable domination of white over black. In this sense, there was actually little interest in such a distinction but rather routes by which the debates carefully figured ways around the problems of law confronting reality or taking account of its impact. State action, although logically reflecting the distinction between de jure and de facto, had the historic effect of keeping the distinction from developing in the law on equality. In Shelley v. Kraemer (1948), the Supreme Court transformed the state action doctrine “. . . into an instrument for prohibiting private racial discrimination”24 by striking down provisions in deeds that restricted sale to certain groups, called restrictive covenants. For over twenty years from this ruling, the Court did not retreat behind the state action doctrine to deny relief in matters of equal protection. Although it had been available to the jurists for nearly 100 years, by the time the law ceased to comprehend separate as conceivably equal the justices had stretched the doctrine of state action to implicate action where it depended on the state in any material way.25 The judicial role in developing constitutional doctrine on state action was superseded by the momentum of the civil rights movement and the Civil Rights Act of 1964. The Warren Court upheld the Act in Heart of Atlanta Motel, Inc. v. United States (1964). Ultimately, state action becomes subsumed under a notion of de jure, beginning with a “legal strategy against segregated education,”26 exemplified by the political change that would begin in the South, sweep north, be rebuffed, and then return south in a variety of rhetoric and moves in and around the definition of the fundamental law on race. This is the law of equal protection, and it revolves around what was meant by discrimination and the consequences of that definition for segregation. While “separate but equal” was the doctrinal issue, separate and unequal schools were the fact of social life, presenting America with its “dilemma.”27

24. David O’Brien, Constitutional Law and Politics, vol. 2 (New York: Norton, 1991), 1258. 25. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). 26. Mark V. Tushnet, The NAACP’s Legal Strategy Against Segregated Education, 1925–1950 (Chapel Hill: University of North Carolina Press, 1987). 27. Gunnar Myrdal, An American Dilemma: The Negro Problem and American Democracy (New Brunswick, NJ: Transaction, 1996 [1944]).

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President Nixon’s statement of March 24, 1970, provides a full review of legislative, judicial, and administrative opinion on the matter of desegregation. Titled “Desegregation of American Elementary and Secondary Schools,” this policy statement began with reaffirmation of a “personal belief that Brown was right.”28 The president called attention to the 1964 Civil Rights Act provision prohibiting busing for racial balance and went on to say, “I am advised that these provisions cannot constitutionally be applied to de jure segregation. However, not all segregation as it exists today is de jure.”29 Citing the Briggs opinion as a way to hold the line on Brown, the statement goes on to indicate how the de jure standard can be used to limit expansion of the Brown mandate to residential neighborhoods. Nixon had thrown down the gauntlet to the liberals on the Supreme Court. The prevailing interpretation of equal protection by courts would remain wedded to providing remedies for past “purposeful” discrimination, in the North and in the South. Although by the early 1970s, “a considerable number of lower courts had assumed that de facto discrimination was a constitutional violation,” according to Gerald Gunther, this was about as far as judicial authority went.30 The emerging position on the judiciary was beaten back with a public appeal to home and neighborhood as beyond the reach of judicial remedy. Douglas and Powell, in the midst of the Court’s struggle with equality, 1970–1973, reflected an effort to break down the formalism and merge law with social life—Powell to save the South, Douglas to give law a fuller meaning and hold the public responsible for its juristic creations. 31 In Keyes v. School District (1973), de jure was equated with discriminatory intent and a basis was established for finding such intent in the North where the history of state-mandated segregation did not exist. Justice Brennan’s majority opinion read constitutional promises as applying to northern districts without a history of explicit legal mandates to segregate. The case from Denver came with a ruling by District Court judge William Doyle based on de facto segregation and the fact of inequality in the schools. Keyes is a turning point for the political momentum of de facto. The opinions are the beginning and the beginning of the end for an expanded equal protection of the laws, since the 1972 term was the first with four Nixon appointees on the bench. 28. President’s Statement, March 24, 1970, Weekly Compilation of Presidential Documents, vol. 6 (Washington, DC: U.S. Government Printing Office, 1970). 29. Ibid., March 24, 1970, 427. 30. Gerald Gunther, Constitutional Law (New York: Foundation Press, 1991). 31. An extraordinary testimony on the politics of busing appeared in the memoir by William Bulger, formerly state representative from South Boston who made his reputation in the antibusing crusades and now president of the University of Massachusetts system.

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Justice Douglas’s concurrence in Keyes holds there to be no constitutional difference between de jure and de facto segregation.32 Focusing on the state action proposition evident in his Gomperts opinion written at Goose Prairie the year before (to be discussed later), Douglas moves back from the implications he held out for Plessy. Perhaps back in Washington, D.C., he was a bit more circumspect. In any case, his Keyes opinion still contains more of the egalitarian vision than any of his brethren showed. Douglas’s reason for discarding the distinction is that in effect his colleagues need to be focused on the reality of governmental responsibility for the things we call “neighborhoods.” His opinion contains an argument for a “strong” de jure standard. Justice Lewis Powell had come to the Court two years before. He came as a southerner and acted like a southerner—not a redneck, which we had come to think epitomized the South, but a proud, civil, southern gentleman. He did not come very far, from Richmond, Virginia, to Washington, D.C., and he did not leave his sensibilities behind. The southerner in him exploded in Keyes, and produced a very interesting commentary on de facto and de jure. Powell’s decision takes on the de jure/de facto distinction with regard to the failure in the country as a whole to integrate. This failure, Powell says, was due in part to a distinction that he believed was rather gleefully aimed at the southern states. Noting some progress in the South, he says, “No comparable progress has been made in many nonsouthern cities . . . because of the de facto/de jure distinction nurtured by the courts and accepted complacently by many of the same voices which denounced the evils of segregated schools in the South.”33 Although Gerald Gunther cites Justice Powell here in asking, “Do the far-reaching demands for eliminating past discrimination make the distinction between de jure and de facto segregation increasingly unjustifiable?”34 it is not clear that Justice Powell and Professor Gunther had the same thing in mind.35 In his opinion, Justice Powell appeared to want to eliminate a distinction that would narrow de jure to “legislative actions”36 and perpetuate a view that the classic violation is southern.37 He wrote, “. . . [I]f our national concern is 32. See also his dissent in Milliken v. Bradley, 418 U.S. 717 (1974). 33. Powell places de facto first in labeling the distinction, although most of the time, in this same opinion and in most others, the order places de jure first. 438 U.S. 265 (1978), 218–219. 34. Gunther, Constitutional Law, 729. 35. Powell is reported in The Brethren as being offended by the tone of Brennan’s opinion concerning the South (at 263). Certainly the meaning of the query by Gunther in 1992 is very different than it was when made by Powell in 1972. 36. Bob Woodward and Scott Armstrong, The Brethren (New York: Random House, 1979), 217. 37. Douglas called it “classic” in his opinion. Political scientist Walter Dean Burnham called it “easy” in his text Democracy in the Making, 2nd ed. (Englewood Cliffs, NJ: Prentice-Hall, 1986), 132.

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for those who attend [segregated] schools, rather than for perpetuating a legalism rooted in history [that is, castigation of the South] rather than present reality, we must recognize that the evil of operating separate schools is no less in Denver than in Atlanta.”38 Powell’s view is that a national doctrine would not use the stereotypical southern case as its framework. The doctrine would move from the guilt implicit there to a neutral standard providing that segregated schools establish a prima facie case of constitutional violation that would impose a burden on the “duly constituted public authorities” to “demonstrate they nevertheless are operating a genuinely integrated school system.”39 Thus, the equal-protection right without the de jure/de facto distinction would be the right “. . . to expect that once the State has assumed the responsibility for education, local school boards will operate integrated school systems. . . .”40 The opinions by Justices William O. Douglas and Lewis Powell express the egalitarian vision of the civil rights movement. The other opinions, the majority and Justice Rehnquist’s dissent, exemplify the Supreme Court’s retreat from the civil rights commitment. Ultimately, Powell fails to adhere to the implications of his opinion in Keyes. He abandons the dissenters in Milliken v. Bradley in 1974, where the segregation in Detroit was great but the majority could find no de jure angle. After Keyes, the characterization of residential segregation as de facto41 naturalizes the neighborhood school concept and its corollary, northern resistance.42 The movement of the Supreme Court drives the constitutional politics of this period to the right with the elections of Richard Nixon, Ronald Reagan, and George H. W. Bush. The convention becomes neighborhood as “fact” and discrimination as talk, attitude, and ultimately “political correctness.”43 But the implications went far beyond segregated neighborhoods, and the lack of constitutional responsibility for the “facts” of social life influenced a variety of cases.44 The continuing significance of the distinction is evident by look-

38. Ibid., 219. 39. Ibid., 224. 40. Ibid., 226. For a detailed analysis of the context in this case influencig constitutional strategies, see J. Harvey Wilkinson, From Brown to Bakke (New York: Oxford University Press, 1979). Wilkinson had been a clerk to Justice Powell. 41. See Wilkinson, From Brown to Bakke, 202, for an excellent discussion of the integration efforts in Denver, prior to federal court involvement. 42. See Peter Fitzpatrick, “The Innocence of Law,” in The Mythology of Modern Law (London: Routledge, 1992); see also, William Bulger, While the Music Lasts: My Live in Politics (New York: Houghton Mifflin, 1996). 43. John Brigham, “Bad Attitudes: The Consequences of Survey Research for Constitutional Practice,” The Review of Politics 52 (1990): 582–602. 44. See Washington v. Davis, 426 U.S. 229 (1976).

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ing closely at Board of Education v. Dowell, where Chief Justice Rehnquist, in his majority opinion, opposed Justice Marshall’s plea to a brooding presence already much diminished by twenty years of decline. Rehnquist established almost immediately that the segregation being litigated was de jure. The 1961 suit by “black students and their parents” led to a finding that “Oklahoma City had intentionally segregated both schools and housing in the past, and the fact that Oklahoma City was operating a ‘dual’ school system—one that was intentionally segregated by race.”45 Thus the distinction between de jure and de facto is reminiscent of Plessy v. Ferguson where the social world was said to be beyond the reach of the law. In one of his last dissents, Justice Marshall extracted what he could from the stingy doctrine that sought to separate intentional from unintentional segregation. He describes the exploitation of residential segregation “. . . that had been created by legally enforced restrictive covenants”46 and called for recognition of “. . . the threatened reemergence of one-race schools as a relevant ‘vestige’ of de jure segregation.”47 Operating within the dominant de jure context, Marshall reexamines the aspiration of two decades prior, his very presence connecting Brown with the impoverished modern interpretation of equal protection. Although Brown promised an end to the separation sanctioned in Plessy, the result has become a jurisprudence that sanctions separation under the logic of de facto and links this to a jurisprudence so comprehensive that even Justice Marshall’s dissents had little effect on their standing.

Toward a New Common Sense Having examined the doctrine that de facto discrimination is constitutional, we turn here to the nature of authority in law and its reciprocal relationship between courts and the culture.48 While equal-protection law is one of the areas Gerald Rosenberg identified in his book The Hollow Hope as requiring broad institutional intervention rather than judicial pronouncement for its advance, the Supreme Court’s pronouncements in this area have often engaged directly with the culture as well as being mediated by other institutions. In the case of the bearing legal authority has on the conditions of social

45. Board of Education of Oklahoma City v. Dowell, 111 S.Ct. 630 (1991), 633. 46. Ibid., 639. 47. Ibid. 48. “Discrimination consists of a plethora of formal and informal practices modified by societal acculturation and intertwined with messages for the inner consciousness.” Margaret Thornton, The Liberal Perspective: Anti-Discrimination Legislation in Australia (Oxford: Oxford University Press, 1990), 7.

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responsibility in antidiscrimination law, the positive distinction between law and fact that has characterized constitutional jurisprudence in this area is grounded in the culture. In Spike Lee’s 1989 movie Do the Right Thing, the framework for the film was a choice between the more moderate integrationist dream of Martin Luther King Jr. and the radicalism of Malcolm X. The movie is ambivalent with regard to the direction it takes, but the violent ending is a sort of inevitable reality where the “right thing” of moral action comes too late. In the tradition of an ideology that operates at some distance from reality, the first President George Bush, in his nomination of Judge Thomas, claimed to be “doing the right thing.” The parallel with the movie is a reference to the ambivalent but hopeful message given by the title. The challenge for liberal opponents of the Thomas nomination to the Supreme Court was to confront the reality of condition in the discursive world of ideas. The distinction between reality and myth, fantasy, ignorance, and misinformation was also evident in John Singleton’s Boyz N the Hood in 1991. With this movie, reports of the opening at a theater on the edge of South Central Los Angeles focused on the lack of violence. The suggestion is that the gangs respected Theater and the turf it occupied. The story ends with a quote from a black man who supervises youth programs in a neighborhood park. He was pleased with the accurate and sensitive portrayal of the people in the neighborhood, and concluded that the film, “. . . was not entertainment . . . This was reality.”49 Driving home the realism in attention to race by reporting from the neighborhood in which the movie took place, this article drew from one of the main characters, who says at the end of the film, “Either they don’t know, don’t show, or don’t care what goes on in the hood.” The violence in the film and the violence that was associated with its screening, are symptomatic of the dichotomous way America has treated the conditions in which most African Americans live, and the very limited conception of equal protection behind it. Attention to developments on the Court, among black intellectuals and activists, and in the culture more broadly, provides a picture of authority in law that no sector alone is capable of providing. The opinion in chambers of Justice William O. Douglas in the case of Gomperts v. Chase (1971) was a sort of judicial gasp. Douglas was serving as Circuit Justice for the West Coast and, writing from his summer home outside of Yakima, Washington, expounded on de jure and de facto segregation before denying a motion for a preliminary injunction. The case involved a school district in the South San Francisco Bay Area comprised of 49. Robert Reinhold, “Theater by Gang Area Features Respect,” The New York Times, July 15, 1991.

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six predominantly white high schools and one overwhelmingly black school. Douglas did not find “the classic” de jure segregation, by which he meant the southern kind where laws, signs, and color lines announced the will of the government. He did, however, believe there was a new or broader kind of de jure segregation. He found state action and state responsibility in creating the segregation because the state built a freeway that separated the black school from the others, and because realtors licensed by the state, banks chartered by the state, and restrictive covenants enforced by the state fostered residential segregation. Douglas’s analysis of what fits under the cover of de jure anticipated a legal strategy that would appear the next year in Keyes.50 Douglas also proposed that “there can be de facto segregation without the State’s being implicated in the actual creation of the dual system.” He wrote that this kind of discrimination would be unconstitutional under Plessy v. Ferguson. Reflecting the prevailing view that Brown applied to de jure segregation, Douglas held that Plessy had not been overruled for schools segregated due to residential patterns and of substandard quality. Douglas found evidence that Ravenswood High School, the predominantly black school, was an inferior school and wondered about possible remedies. He indicated that he could “. . . see no answer to the argument that school boards can rectify the situation among the races by designing a system whereby the educational inequalities are shared by the several races.”51 This was clearly one of the boldest salvos in the short-lived struggle over implications for desegregation of a distinction between de jure and de facto.52 The decision came on September 10, 1971, barely three weeks before the new term of the Court would begin. It was in that new term, the October term of 1972, that the influence of the civil rights movement on constitutional interpretation by the Supreme Court began to wane. As we have seen, it was in Keyes the following year that Justice Douglas turned away from the dramatic view that constitutional equal protection under a still authoritative Plessy standard incorporates a de facto claim that is weak in the sense that it does not incorporate intent. In Milliken, he would recognize that the tide had turned and that, along with San Antonio v. Rodriguez,53 “. . . there is no violation of the Equal Protection Clause though the schools are segregated by race and though the Black schools are not only

50. Keyes v. School District, 413 U.S. 189 (1973). 51. Gomperts v. Chase, 404 U.S. 1241 (1971). 52. It is also, in some sense, an attempt to introduce seemingly compelling law Latin as an effort to dictate to the lower classes much as the Normans had dictated to the Anglo-Saxons some time before. See David Mellinkoff, The Language of the Law (Boston: Little, Brown, 1964). 53. 411 U.S. 1 (1973).

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‘separate’ but ‘inferior.’” Moments such as this in constitutional interpretation can only be understood in terms of what is possible at the time, and this involves conceptual leaps suggested by what is being said as well as political choices colored by realities of power. The antiracism position in the United States had been divided between the separationist and integrationist positions, the one epitomized by Black Power and Malcolm X, and the other by the civil rights movement and Martin Luther King Jr. This bears on the concept of de facto discrimination. When we say that integration is the hegemonic position, we are simply describing the differing reception of these two positions. Both leaders are assassinated, but only the latter has a national holiday set aside for him. Black Power is at the margin of constitutional discussion and has had limited impact. It is only in the 1980s that something akin to this position, Derrick Bell’s challenge to the ideology of integration, finds a place in the mainstream of jurisprudential discourse. First in And We Are Not Saved and later in Voices from the Bottom of the Well, Bell challenged the prevailing ideology suggesting that all was well in the constitutional domain and that there simply remained a few challenges to be dealt with on the implementation front. From Bell sprung the critical race theorists, who wove a more complicated web of historic struggle and contemporary impasse. For Mari Matsuda, the promise of Brown was an aspect of her personal history. She could not accept the Critical Legal Studies trash of rights because rights had been the basis on which her parents achieved a place in the American system. For Kimberly Crenshaw, race politics and sexual politics were bound up, and together they challenged the hegemony of an integrationist/dominance framework. A number of political debates in America have turned on the sort of distinction between fact and value at the core of the de facto/de jure framework developed in racial-discrimination jurisprudence. Discussion of quotas employs a distinction similar to that between law and fact examined thus far. Those who have framed the debate hold out merit as an abstract consideration arrived at formalistically. Usually this is by emphasizing tests or cumulative evaluations. On the other side, the picture is of preference where characteristics like sex and race are taken into account—usually through a link to social conditions of oppression or discrimination. In a letter to The New York Times prompted by the Thomas nomination,54 Russell Nieli writes that five Gallup polls, beginning in 1977, showed that over 80 percent of respondents “favor a strict meritocratic system . . . over a system in which women and members of minorities” are given preference. Merit is a standard, in this analogy, on the same order as law or ideals, and it stands against conditions or charac54. July 24, 1991.

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teristics. Merit, in the conventional debate, is drawn parallel to de jure, and affirmative action, or the opposite of merit, is drawn as operating in a de facto condition. This is not inevitable; the ideal of affirmative action reflects the logic of a high period of equal-protection analysis twenty years ago. But, merit, no matter how idealized it may seem, is widely set off against preference, a system driven by condition and operating against, not in terms of the natural order of things. In the culture, we have distinctions that reinforce de jure/de facto in constitutional interpretation. The formal treatment, by conservatives, of Clarence Thomas as simply a man that could do a job, rather than in any important sense a black man, is a political construction removed from “reality.” In the place of the explicit delineation of a racial line, as in the tradition of segregation, the political move here denies the relevance of reality in a sort of de jure color blindness. At the same time (and by the same groups), the reality of Thomas’s rise from poverty in Pin Point, Georgia, where he was born in a house without electricity or plumbing, to the threshold of the Supreme Court, was posed as a reason to see the nominee as a representative of his race even though in political terms he had been allied with white conservatives more than the majority of his race. Under the title “From ‘Hatred and Love’ to a Successful Career,” the National Law Journal built their story around a quote from Thomas: “I am a child of the marshes, a son of this soil. I am the product of hatred and love.” This was the juxtaposition of the condition of “[g]rowing up poor and black in the segregated South of the 1950s and 1960s” with his nomination. They called it “. . . the stuff of American folk legend.” While one might have seen the Horatio Alger quality of this construction in much the same way as the denial of a racial designator under the ideology of the autonomous individual, the vivid immersion in the bootstraps world of crab picking, rural poverty, and the mid-sixties south of Jim Crow segregation was a reality check on the national scene. The National Law Journal also reported Thomas attending an all-white boarding school, the St. John Vianney Minor Seminary in Savannah, but it is not clear how it could have been all white if he was there. Some aspects of Thomas’s rise, like his founding of the Black Student Union and his attraction to the Black Muslim movement in the 1960s while at Holy Cross College, seemed particularly challenging to the nominee’s conservative advocates while they adhere to the distinctions of color in law. Although ideologically they may be similar, Clarence Thomas and Dan Quayle are quite different in fact. For conservatives, the emphasis is on escape from poverty, and escape becomes a consideration more important than the actual conditions. The steps taken by the nominee left a world of want behind. Still, once called to mind, once

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a part of the governing picture, this world has an evocative power and it is very much a part of public consciousness. De facto discrimination brought a sort of common sense into the law. Judicial interpretation of the Constitution was influenced by cultural phenomena we are only now becoming familiar with in constitutional law. Here, an idea like privacy or free expression may become part of an exchange between the judiciary and the larger culture. The ordinary American understanding that there is little public responsibility for the way people live became a matter of constitutional doctrine through interpretation by the justices of the Supreme Court. In the period of its rise as an aspect of equalprotection doctrine, the distinction between de facto and de jure drew both northerners and southerners into its semiotic web, providing opportunities as well as pitfalls to both. Race is mediated in the press, in the news, and in political discourse by opportunity (for black actors, directors), by choice (of Clarence Thomas in 1991 to be on the Supreme Court), and by concern (for progress in education, quality of housing).55 The public focus on ideals and opportunities keeps the reality of the conditions of life for large groups of African Americans under wraps and largely out of sight. Only at the margins does discussion come close to home.56 Generally, talk about responsibility has served as a surrogate for engaging with the conditions in American cities for the last fifty years. Law shields the reality, the actual conditions of a relatively comfortable European American population and a much less comfortable African American population. The de facto/de jure distinction adds a formal barrier that shields social conditions from critical inquiry into segregated conditions. This is the sense that constitutional justice only applies to historic, intentional discrimination—the kind epitomized by the Jim Crow signs over restrooms in the South or Sheriff Bull Connor attacking black protesters with police dogs a long time ago.

55. Although most dramatically chronicled in the cities, the separation of the races gives an edge to romantic summer portrayals of rural America as in a The New York Times story on Centerville, Tennessee, where the black part of town is “. . . referred to casually around the square simply as Nigger Ridge” (July 26, 1991). 56. Such was the case in 1989 when discussion centered around Spike Lee’s Do the Right Thing and in the summer of 1991 the violence of the ghetto threatened to spill over into movie theaters during the screening of John Singleton’s Boyz N the Hood.

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? The policeman moves through Harlem like an occupying soldier. JAMES BALDWIN

J

ames Baldwin’s collection of essays, Nobody Knows My Name, and the African American life that it depicts present a number of jurisprudential challenges to national law. In the original 1960 essay, Baldwin depicts African Americans in Harlem as living in an occupied territory. This community was not, as public policy in America would have it, merely inhabited by people who had not yet received all the blessings of the American dream. It was not, as political theory might contend, simply a place where the social contract was not being upheld with reference to more fortunate citizens who lived in the suburbs or downtown. The residents are not simply, as we all are, subject to laws that do not bring much direct benefit. The residents of Harlem are held, he says, in their condition by occupation forces conventionally known as the police. The local people, in this picture, see the police as forces of occupation that maintain conditions of economic and political inequality. Baldwin, who died in 1987, contrasted this African American territory, some of it along the northern end of Fifth Avenue in New York City, with the nearby neighborhoods of White America: The avenue is elsewhere the renowned and elegant Fifth. The area I am describing, which, in today’s gang parlance, would be called “the turf,” is bounded by Lenox Avenue on the north, and 130th Street on the south.1

1. James Baldwin, Nobody Knows My Name (New York: Vintage Books, 1961), 57.

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The neighborhoods are distinctive in place and culture. They differ from an America with influence on what law means, schools that channel students into leadership, professional associations, and judicial institutions. In these neighborhoods, outsiders perform law enforcement. Baldwin’s “occupation thesis,” of course, challenges the American dream and suggests an endemic basis for social unrest. But, the implication to be developed here is for how we understand law. Jurisprudence, rather than policy, ethics, or political theory, is the issue, and the challenge is just as compelling.

The Occupation Thesis Baldwin said that the police in Harlem in the 1960s “. . . represent the force of the white world.” Their purpose, by his account, is to profit by keeping “. . . the Black man corralled up here, in his place. . . .” The picture might then, as now, have been applied to any number of urban centers. He mentions Chicago’s South Side specifically, and Thesis certainly applies to Los Angeles. Such places are now commonly called the “hood,” as in John Singleton’s 1991 film, Boyz N the Hood, and they remain worlds apart with astounding levels of violence in ordinary times and police patrolling from helicopters. This description is not only about law enforcement; it is about social conditions, identity, and the basis of legal authority. “It is hard,” he says, “to blame the policeman, blank, good-natured, thoughtless, and insuperably innocent, for being such a perfect representative of the people he serves . . . He has never, himself, done anything for which to be hated. . . .” But, he is not of the place. The policeman faces “. . . daily and nightly, people who would gladly see him dead, and he knows it. . . .” He moves through Harlem, therefore, like an occupying soldier in a bitterly hostile country; which is precisely what, and where, he is. . . .2 This picture of governmental force laid upon a people, and resistance to it around the time Baldwin wrote, has some effects.3 In characterizing the social foundations of law whereby some people own its force and others feel it, Baldwin draws a connection between law and identity. He challenges the idea that the law treats all alike.4 2. Ibid., 66. 3. The Law Enforcement Assistance Administration was created in the 1970s to humanize the police, and community policing concepts address the same ends. At their best, these programs ameliorate the conditions Baldwin spoke of, but they do not address them at a fundamental level. 4. A Saturday Night Live skit by Eddie Murphy makes a similar point when Murphy goes into the white community disguised as a white person to understand how it works. Once all the African Americans have left a bus, he finds snacks served and music played. My own experience has been that the New

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Certainly Baldwin could be wrong about the extent to which people in Harlem felt they lived in occupied territory, but his thesis has implications for how we explain law’s authority. As a matter of representation, the issue of people failing to identify with the law is an old one in jurisprudence. Yet, in America, philosophers of the law, from Ronald Dworkin to Bruce Ackerman, hardly seem inclined to recognize exceptions to the authority of law. In fact, the dominant framework, legal positivism, emphasizes the power of law to compel obedience. I examine places where the ideology of law stands outside the social structure and fails to constitute many of the social relations from which it traditionally draws authority. Other important philosophers have pointed out the constitutive aspect of law as wielded by the police.5 Baldwin calls attention to places where sovereignty is contested and loyalty divided so that law operates in the interests of outsiders. Jurisprudence for these lands must consider colonialism, cultural difference, and how both occupied and occupier understands legal authority. Here, I examine some irregular legal arrangements within the United States—Indian reservations, the Commonwealth of Puerto Rico, and the contested ejido or community lands of northern New Mexico. American law employs a variety of instruments in dealing with these situations; treaties, statutes, concepts like home rule, and property are all part of the effort to rein in alien subjectivity. Agencies such as the Bureau of Indian Affairs, the Commission on Puerto Rico, and the United States Forest Service administer territory where inconsistencies in law abound. Still, the law sits uncomfortably in territories where historical, cultural, and sociological factors support identities in opposition to the law. The failure, in traditional jurisprudence, to account for these situations, offers an opportunity to view jurisprudence as ideology. Traditional or positive jurisprudence views law as the command of a sovereign, an institution, or person to whom the population gives obedience. A sovereign should not have to use force each time he wants obedience. But, a sovereign relies on acquiescence to his orders, using force only as a backup. Positive jurisprudence relies on normative order and endeavors to make that order acceptable. Hans Kelsen6 built his positivism around York subways often change character when they travel through African American communities. In one instance that reminded me of the Murphy skit, the passengers on a northbound No. 9 were offered newspapers at well below the newsstand price when the train passed 110th Street. 5. Judith Butler, Bodies That Matter (New York: Routledge, 1993), 121, “In Althusser’s notion of interpellation it is the police who initiate the call or address by which a subject becomes socially constituted.” 6. Hans Kelsen, The Pure Theory of Law (Berkeley and Los Angeles: University of California Press, 1970).

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a basic norm and H. L. A. Hart7 described a normative structure in the institutions to which we habitually give obedience. Ronald Dworkin makes integrity the core of “law’s empire.”8 Jurisprudence is simplistic when measured against the practices of American law. Like the autonomous individuals intrinsic to liberalism, authority in jurisprudence disregards the inconsistencies in the normative order. Some postmodern work helps in understanding where a plurality of cultures in law 9 fits in liberal jurisprudence and why it is not fully theorized. For Margaret Davies, much of the effort involved in a postmodern analysis of law seems to be to understand how the universal is established.10 Her thesis is that law’s universality requires agency on the one hand and “repression of the irreducible” on the other. In a chapter titled “Before the Law,” she draws on Jacques Derrida to pose the challenge of the universal. “What remains concealed and invisible in each law is thus presumably the law itself, that which makes laws of these laws, the being-law of these laws.”11 While this sort of deconstruction usually entails an effort “. . . to demystify, to reveal the underlying politics of, the claims of objectivity and neutrality . . . ,”12 Davies ultimately turns away from this enterprise, arguing instead that the paradoxes at the heart of the ideas of an ideational and institutional source of law are “irreducible [and] underlie its ‘essentially deconstructible’ character.”13 For Davies, the postmodern, which so often is associated with indeterminacy, suggests the need to posit an agency and a web of meaning that transcends indeterminacy. This agency makes law material. Thus in her response 7. H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961). 8. “Checkerboard statutes are the most dramatic violations of the ideal of integrity, and they are not unknown to our political history . . . but whenever a community enacts different laws which cannot be defended together as expressing a coherent ranking of different principles of justice or fairness or procedural due process . . . it is part of our collective political morality that such compromises are wrong. . . .” Law’s Empire (Cambridge, MA: Harvard University Press, 1986), 184. 9. I will use this formulation to distinguish the present enterprise from legal pluralism where the emphasis is on more than one legal culture. Here, the focus is not the plurality of law, but the plurality of culture in law as it is conventionally understood. 10. Margaret Davies, Delimiting the Law: Postmodernism and the Politics of Law (London: Pluto Press, 1996). 11. Jacques Derrida, “Devant la loi,” in Philosophy and Literature, ed. A. Phillips Griffiths (Cambridge: Cambridge University Press, 1984), 134. 12. Also, to “. . . examine the gaps, logical incoherence and acts of theoretical force, which are integral to the ideology of positive law.” Davies, Delimiting the Law, 64. 13. Ibid., 86. She goes on to add: “[I]t is precisely because of these gaps, silences, paradoxes, or mysteries that legal unity and self-determination can be theorized: the postulation of any singular, positive, and homogenizing criterion of legality must therefore be recognized as involving the repression of the irreducibility of the origin in order that it may be posited as conceptually, if not empirically, indivisible and comprehensive.”

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to the Kafkaesque notion embraced by Derrida, called “After the Law,” Davies draws on Judith Butler.14 The performance of law is seen as akin to Butler’s notion of gender as a performance. In a wonderful treatment of materialization, Davies proposes: What would it mean to say that law is a process of materialization in relation to which “the law” as we understand it in its abstract sense is only ever an effect? Perhaps this would be like saying that the subject has no essential being but is a set of material discursive relationships and is continually under construction, and that the sense of a subject as a separate independent unit is the effect of that set of relationships.15 This leads her to speculate on the relations of cause and effect, including the notions that law is the effect rather than the cause of the actions “performed” by participants in the process, but also that the inversion of cause and effect is not nearly so important as recognition that the separation of cause and effect is simply part of the process of making meaning in law.16 In the context of the following inquiry into the plurality of arenas where law in the United States is not constitutive of culture, the various actors are more evident in the provision of legal meaning. In the context of federalism, the actors are states, and sovereignty is contested as part of the state system. Early American constitutional history was written in the struggles over state sovereignty and the drive to self-determination, self-definition, and self-identification, culminating in the assertion by the Confederate States of authority to separate from the Union. Although state power has diminished, the states in the American federal system retain considerable power and occasionally challenge national authority. For instance, in highway regulation and the disposal of nuclear waste, governors from New York to Colorado have resisted federal authority by drawing from old notions of shared sovereignty between states and the national government. In most contemporary instances, however, challenges from states, by their form as well as their tone, affirm the ultimate authority of the federal government 14. “I will look at the separation of the real from the ideal in law, and raise the prospect of a material approach to legal thought.” Ibid., 24. 15. Ibid., 129. 16. “To say that ‘the law’ as the signified of the ongoing performances of legal subjects, including judges, police and other officials, is the conceptual effect, rather than the cause, of legal actuality, would be to invert the ordinary pattern of influence assumed by legal orthodoxy which is based on the primacy of the normative structure which gets ‘applied’ in practice. . . . But perhaps speaking of a cause and effect here is too simple: can we really just argue that in performance causation is inverted? Or are cause and effect here really just a conceptual separation of two sides of the one process?” Ibid., 130.

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and the presumptive priority of national identity. One knows, from the outset, that protest against the federal system is usually temporary, a form of political agitation rather than resistance. Where this has not been the case, as in civil rights in the 1950s, federal authority, and occasionally national self-definition, may be challenged. Popular political movements also rarely raise sovereignty issues. For all the grumbling about taxes or criticism of affirmative action that constitutes public discourse, American politics rarely reveals fundamental weaknesses in the fabric of authority behind the law.17 Only when fundamental transformations in political economy or social relations produce rifts with implications for identity—for example, the Civil War and Reconstruction, early twentiethcentury immigration—are there moments of crisis.18 Acknowledging some awkwardness in claiming that places like Harlem or northern New Mexico are “other countries” within America, the definition of a country is worth pursuing as an exercise in sociological jurisprudence. Baldwin’s essay, originally published in Esquire as “Fifth Avenue Uptown: A Letter from Harlem,” is a meditation on what it meant to be a “Negro” in America. In a second essay, “East River, Downtown: Postscript to a Letter from Harlem,” published in The New York Times Magazine in March of 1961, Baldwin builds on his observations by describing the plight of black Americans who protested at the UN while the American ambassador, Adlai Stevenson, spoke against colonialism. The protesters wanted the ambassador and the nation to recognize the presence of people living in colonial conditions in America. This seems to have been Baldwin’s way of standing behind his “country” claim. In Harlem, social, economic, and cultural differences challenged the link between law and the way groups within a nation live. Indians on reservation land and some Spanish-speaking communities also lay claim to the status of “land apart.”19 Of course, not every case where a population lives in substantial opposition suggests a challenge to national sovereignty. The Sagebrush Rebellion in the western states in the 1980s, an example of alienation and resistance, seems to fall short of the conditions for “occupied territory.”20 In an article on the rebellion, Bruce Babbitt described the western states as “. . . split in two, with part admin17. The difference between simple discontent and alienation that nourishes rebellion may only be a matter of degree. As populations grow removed from the logics of law, the size of the gap takes on institutional and cultural significance. 18. John E. Finn, Constitutions in Crisis: Political Violence and the Rule of Law (New York: Oxford, 1991). 19. See Akwasasne Notes for discussion of the legal forms that turn tribal status into recognition as a country. 20. Disputes with the U.S. Bureau of Land Management over its regulation of timber, mineral, and agricultural interests prompted the “rebellion” along with passage of the Federal Land Policy and Management Act (FLPMA); see 43 U.S.C. at 315–315r (1976).

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istered from the state capitol and the rest from the Interior Department on ‘C’ Street in Washington, D.C.”21 The Rebellion demanded that federal lands in the West be deeded to the states; there was no separate culture and little of the separate identity associated with sovereignty claims.22 Yet, even here, it may make sense to question the traditional idea of legal authority, and the relationship to it of right wing radicalism as more complete information about these sorts of movements emerged following the April 19, 1995, bombing of the Federal Building in Oklahoma City. For Baldwin, the status of the police is symptomatic of the law’s authority. It is the police, then, who serve as actors in the performance of law. And, it is the very problematic nature of this relationship that makes Baldwin’s contention so fundamental for scholars and people outside places constituted in this way. Paul Chevigny, who worked in Harlem around the time Baldwin wrote, sees the function of police and armies as entirely different. He suggests Baldwin’s comment is inappropriate.23 Certainly, our expectations for police differ from armies of occupation, but it is precisely because we expect policing to be different that the occupation thesis is so interesting. What makes Harlem and some other areas of America different is that force appears to come from the outside, and that makes representation an issue. Whether the population is served or occupied is a function of how the territory and its interests are represented. A variety of normative structures exist in America, and the law in these places does not rest on the same foundation as that of the legal system as a whole. The consideration of the law on Indian reservations, in the territories, and over federal lands challenges that basic normative structure. Ethnographies of communities within the United States describe the role of ordinary people in actively interpreting the law and giving it meaning as applied to them. Jacqueline Maria Hagan has studied nine hundred Maya who came from a township in the Department of Totonicapan, Guatemala, and are living together in Houston.24 She describes the complex effects of the 1986 Immigration Reform and Control Act (IRCA), including how these undocumented immigrants interpret the law and base their actions on an 21. Bruce Babbitt, “Federalism and the Environment: An Intergovernmental Perspective of the Sagebrush Rebellion,” Environmental Law Review 12 (1982): 847. 22. There is a culture that supports radical separatism, from the religious fundamentalism of the Branch Davidians in Waco, Texas, to the White Supremacists in Idaho. More is usually made of the violent character of these groups than of the extent to which they reflect local cultures. 23. Paul Chevigny, note to the author. 24. Jacqueline Maria Hagan, Deciding to Be Legal: A Maya Community in Houston (Philadelphia: Temple University Press, 1994).

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agenda of their own. We are less concerned here with the romantic formulations of legal pluralism and more interested in how “law” as a universal in the liberal legal order maintains its stature where it fails to constitute much of life in a particular territory.

Semiautonomous Nations The classic case of other countries within America is the reservation system for the descendants of its native inhabitants.25 European expansion into the Western Hemisphere produced the system of “reserving” land within national boundaries to be governed by semisovereign tribes. It has been replicated throughout the world (in such places as Australia and South Africa). Without discounting the more general practice of displacing native people, the system of setting aside land for tribal occupation while making the tribal peoples citizens in the dominant country seems to be a Western creation. 26 The reservations in North America are an evolutionary product. They are the present state of relations that go back five hundred years, or to well before the present legal system was established. From initial negotiation and accommodation to genocide, the reservations are artifacts of dominion. The result is numerous contemporary tribal populations and a nation that dominates. Native people in the United States are partially sovereign.27 For instance, conditions of the Indians living along the Oregon Trail in 1993 were described as “. . . inside straight lines on the map, nations within a nation” and as using “their sovereignty . . . to build bingo halls and casinos.”28 This “opportunity” stems from enactment of a 1988 federal law allowing native people to set up gambling establishments. Other contemporary developments in native legal disputes appear more sanguine than the casino movement. Treaties providing for access to traditional food sources are used to pressure the federal government to make changes in the hydroelectric projects along the Columbia and Snake Rivers to enable Pacific salmon to return to native land in Oregon, Washington, and Idaho. Here the law is presented 25. Augie Fleras and Jean Leonard Elliott, The Nations Within: Aboriginal-State Relations in Canada, the United States, and New Zealand (Toronto: Oxford University Press, 1992). 26. In European countries, native people were subdued and formed part of the dominant culture, usually the subservient part. In the Soviet experiment, subcultures were each accorded a specified place in the Soviet culture. 27. Paul Smith, “Lost in America,” Borderlines 23 (1991–1992): 17. 28. Timothy Egan, “150 Years Later, Indians Cope with the Bitter Results of Settlement,” The New York Times, June 1, 1993, A12. The “opening” of land to white Europeans came in 1850 with the Donation Land Act, providing each American family 640 acres if they wished to claim it.

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as not only good for the Indian, but also good for all Americans. 29 However, the opportunity created by law exemplifies the legal trap that confines native people in their own land. The native or “First Nation” people are forced to negotiate for their existence under languages and traditions that are not their own.30 Commentary suggests that the early efforts by Chief Justice John Marshall to deal with native claims were more forthright in addressing the tensions between constitutionalism and colonialism than subsequent jurisprudence. Philip Frickey writes in the Harvard Law Review that Marshall “ingeniously attempted to mediate the tension between colonialism and constitutionalism” in Cherokee Nation v. Georgia and Worcester v. Georgia. 31 Indeed, in the first of these cases, the Supreme Court acknowledged the Indians’ “. . . unquestionable and therefore unquestioned rights to the lands they occupy.”32 But, notwithstanding its noble start in the two Georgia cases, by midcentury the law had fallen into line with the relevant interests, 33 and for the next fifty years it sanctioned Indian expropriation. 34 And, as is often the case with this form of law, expropriation coincided with an expansion of citizenship rights. Interests in expanding the reach of federal law vied with interests in keeping it off the reservations. In Elk v. Wilkins (1884), the Supreme Court refused to allow an Indian to take up residence off the reservation and exercise a right to vote, while in Ex Parte Crow Dog the year before, the Supreme Court withheld the extension of federal criminal law to the reservations. 35 According to Justice Gray, in his opinion for the majority in Wilkins, the “alien and dependent condition of the members of the Indian tribes could not be put off at their own will.” A few years later, Congress passed the Major Crimes Act, removing murder, manslaughter, rape, assault, arson, burglary, and larceny from tribal jurisdiction. In 1887, the Dawes Act authorized the sale of Indian land while granting citizenship to adult Indians who had 29. According to Egan, “If the salmon runs are ever restored in the Northwest interior, environmentalists say they will have the Indians of the Fort Hall Reservation [near Pocatello, Idaho] to thank.” 30. Loretta Todd, “Notes on Appropriation,” Parallelogramme 16 (1990): 24. 31. Ibid. 32. 30 U.S. (5 Pet.) 1 (1831), 17. 33. United States v. Rogers, 45 U.S. (4 How.) 567 (1846); see Petra Shattuck and Jill Norgren, Partial Justice (Providence, RI: Berg, 1991), 4. 34. As Alexis de Tocqueville said of this treatment of the native people by the Americans, “It is impossible to destroy men with more respect for the laws of humanity.” Alexis de Tocqueville, Democracy in America, trans. by Henry Reeve (London: Longman’s, 1875), 361; see Shattuck and Norgren, Partial Justice, 78. 35. 112 U.S. 94 (1884); 109 U.S. 556 (1883).

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accepted their allotment of land.36 Land ownership and sovereignty are at the heart of the native experience of western expansion. Contact with the United States “destroyed . . . the absolute sovereignty” that had guarded the land, culture, and identities of native people.37 Reservations are a consequence of various waves of settlement and broken promises for the preservation of culturally meaningful land. The Indian Reorganization Act of 1934 sought to purchase land and restore it to the tribes in a reversal of traditional American policy. In Hawaii, the Hawaiian Homes Commission Act in 1921 sought to transform the system of communal ownership into one of private property. In both cases, the rhetoric of self-sufficiency supported the practice of market exchanges that ultimately worked to the disadvantage of tribal people. As Linda S. Parker points out, “Federal agencies have confiscated Indian land for dams, national parks, irrigation projects, and various other uses.”38 Thus, the instrumental quality of the reservation system characterizes its place in American law. The special legal status creates small opportunities for the people who live under it, while the existence of these diverse conditions has not been incorporated into law’s own picture of itself. This is particularly evident around the casino movement, where the law of tribal opportunity is becoming an opportunity to be exploited. In Santa Rosa, California, for instance, purchase of a country club, the Fountaingrove Resort, by a group of Japanese investors, the Futsu Golf Club Company, led to an arrangement with the Makahmo-Pomo Indian Tribe to run a casino at the site. The arrangement called for the resort to “provide” two acres to the tribe, to be held in trust by the Department of the Interior, as a basis for legally operating a casino.39 The instrumentalism of this sort of arrangement is striking. The larger instrumental role of the reservation system is to provide legal justification for relations with a conquered people while avoiding cultural assimilation.

Compromised Citizenship 36. A paper by Hamar Foster, “Canadian Indians, Time and the Law: What Happened North of 49?” delivered at the Interim Meeting of the Research Committee on Comparative Judicial Studies, called my attention to the work of Charles F. Wilkinson, American Indians, Time, and the Law: Native Societies in Modern Constitutional Democracy (New Haven, CT: Yale University Press, 1987), which provides an extensive treatment of the historical changes that have taken place in the application of U.S. law to Native Americans. 37. Linda S. Parker, Native American Estate: The Struggle over Indian and Hawaiian Lands (Honolulu: University of Hawaii Press, 1989), 188. 38. Ibid., 192. 39. Santa Rosa Press Democratic, June 20, 1993.

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The American territories have an anomalous place in law. The law, as it applies to Puerto Rico,40 Guam, and the Virgin Islands, deviates in a number of respects from the law in nonterritorial land. In these places, which have some similarities with the reservations, the land is less readily available for individual expropriation while serving military and corporate interests quite well. The place outside the geographic landmass of the nation, but inside the law, makes the issue of citizenship subject to compromise and constitutes anomalous, subnational identities. The territories are examples of “other countries” within the law, characterized in some respects like the reservations, but “outside” the geographical boundaries of the country. Their status has been ameliorated, to the extent that the law is able to explain its position, by the grant of citizenship. But, as with Native American reservations, this legal grant is a mixed blessing. While it legitimizes the reach of the law, it also completes the subjugation of people now constituted in that particular legal compromise. The essay by Judge José A. Cabranes, Citizenship and the American Empire,41 shows the atypical status of Puerto Rico by tracing congressional action on Puerto Rican citizenship from 1900 to 1917.42 The history of the legal status of the island and its citizens begins in classic imperial fashion with U.S. acquisition of the Spanish possessions of Puerto Rico, Guam, and the Philippines. After the turn of the century, America debated normalizing relations with the territorial acquisitions. Earlier acquisitions influenced the outcome, including existing Indian reservations, acquisitions from Louisiana to Alaska, Hawaii, and the territory acquired from Mexico. One particularly significant compromise led to independence for the Philippines under the Jones Act of 191643 and citizenship for Puerto Ricans a year later.44 Subsequent legislation establishing the Commonwealth of Puerto Rico in 195045 provided for greater self-government on the island. Thus, while providing for greater equality, Puerto Rican citizenship perpetuates the colonial 40. My work on Puerto Rico has been enriched by many engaged puertorriqueños: Charles Robert Venator Santiago, Blanca Silvestrini, Roberto Alejandro Rivera, Efren Rivera Ramos, Gloria Bernado Ramos, Agustin Lao Montes, Jennifer C. Braceras, Mitchelle Correa, and, at the very beginning, Juan Cruz. 41. José A. Cabranes, Citizenship and the American Empire: Notes on the Legislative History of the United States Citizenship of Puerto Ricans (New Haven, CT: Yale University Press, 1979). 42. See also Blanca G. Silvestrini and Maria Dolores Luque de Sanchez, Historia de Puerto Rico: Trayectoria de un Pueblo (San Juan: Cultural Puertorriquena, Inc, 1987). 43. 22 U.S.C. Sec. 1394 (1976). 44. 8 U.S.C. Sec. 1402 (1976). 45. 48 U.S.C. Secs. 731–916 (1976).

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status of the island. Although “[t]he very word ‘citizenship’ suggested equality of rights and privileges and full membership in the American political community,” the relationship between island and sovereign has been a colonial one with consequences for the development of territorial identities.46 The implication of equality is part of traditional jurisprudence. Citizenship, like rights to property and freedom, is assumed to be interchangeable. Traditional citizenship, again, like rights, is understood as not having qualifiers attached, or being diminished when this happens. As is the case with the autonomous transactions in the marketplace by abstract “consumers,” citizenship is purposefully imprecise in order that its appeal be broad. The consequences of citizenship are mixed. There are the mass migrations north and distinctive civil rights issues for Puerto Ricans residing on the continental United States. And, while state laws requiring English literacy cannot be enforced against Puerto Ricans, the migration cuts against a distinctive and separate island identity.47 The two edges of the law make it appear more basic than partisan. Puerto Rican citizenship was proposed as a solution to the problem of the island’s unusual place in the federal system, nearly 100 years ago. In popular culture, the issue was whether the Constitution “. . . follows the flag.” This framework draws on the image of American troops carrying the familiar banner to foreign shores (along with a distinctive cultural, political, and economic identity) only to raise the questions about the legal implications of having successfully planted it. One answer was the doctrine of territorial incorporation.48 The debate asked whether Puerto Ricans were to become “Americans,”49 and the answer was a compromise on citizenship that created the “other” country of Puerto Rico in American law (both an identity and a land apart). When Puerto Rico was first occupied by U.S. forces in 1898, the commanding general, Nelson A. Miles, announced that his troops carried “. . . the fostering arm of a nation of free people, whose greatest power is in justice and humanity.” The general promised to bring to the island “. . . the immunities and blessings of the liberal institutions of our Government.” 50 46. Cabranes, Citizenship and the American Empire, 6. 47. See Torres v. Sachs, 381 F. Supp. 309 (S.D.N.Y. 1974). 48. “Adopted by a plurality of the Supreme Court in the Insular Cases of 1901, and confirmed by the Court without dissent in 1922 in Balzac v. Porto Rico, the doctrine held that territories could belong to the United States without necessarily being a part of the United States for all purposes; they could be ‘[territories] appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution.’” Cabranes, Citizenship and the American Empire, 454–455. 49. In other words, were the people of these new colonies in any sense “Americans”? Cabranes, Citizenship and the American Empire, 455. 50. Office of the Commonwealth of Puerto Rico, Documents on the Constitutional History of Puerto

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Under the peace treaty that same year, Spain abandoned title to Cuba, but ceded the territories of Puerto Rico, Guam, and the Philippines to the United States. Judge Cabranes, ignoring expansion into the lands initially occupied by Native Americans, argues that this was the first time in American history that the inhabitants of acquired territory were not promised citizenship. 51 American law came to the island with “free-trade” bills incorporating Puerto Rico into the American marketplace. These included, however, collection of tariffs on imports to the island from places other than the United States. Some in Congress clearly saw citizenship, or political inclusion, as an adjunct to economic integration, but the full Congress resisted taking this step for two decades. Race issues colored the debates, with the implication that those other races, particularly Asians in the case of the Philippines, were a threat to the “industrial system.”52 Hawaii was annexed about this same time because of the belief in Congress that its small native population would pose very little threat to American institutions. When the Supreme Court initially decided the issue of Puerto Rico’s status under the Constitution in the Insular Cases on May 27, 1901, it provided the opportunity for one of the most enduring homilies in American jurisprudence, Mr. Dooley’s opinion that “. . . no matter whether th’ constitution follows th’ flag or not, th’ supreme coort [sic] follows th’ illection [sic] returns.”53 In the decision in the first of these cases, DeLima v. Bidwell, the customs officer of New York contended Puerto Rico was a foreign country. A majority of the Supreme Court held that upon ratification of the Treaty of Paris, the island had become a territory of the United States. While the Foraker Act changed the law shortly after these cases were decided, the reasoning of the justices is rich in historical reference to precedential material on the legal nature of territorial status. Judge Juan R. Torruella has placed the movement for statehood in light of the discredited standard in constitutional equal-protection law of “separate but equal.”54 Torruella’s book criticizes U.S. law in Puerto Rico because of the island’s unequal political status. He describes tensions over the presence of legal institutions representing the sovereign that maintains the island’s unequal status, and he criticizes the federal courts as instruments of colonial

Rico (1964), quoted in Cabranes, Citizenship and the American Empire, 55. 51. Cabranes, Citizenship and the American Empire, 20. 52. Remarks of Representative Francis G. Newlands, 33 Cong. Rec. 2000–01 (1900); see also Cabranes, Citizenship and the American Empire, 31. 53. Finely Peter Dunn, Mr. Dooley’s Opinions (New York: Russel, 1901). 54. Juan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal (Rio Piedras: Universidad de Puerto Rico, 1985).

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status.55 Courts have been among the more active agents of constitutional compromise. Judge Cabranes noted that the “suppression or discontinuance of the United States District Court” for Puerto Rico or the “modification” of its jurisdiction was sought by the Puerto Rico Bar Association at least as early as 1909.56 Torruella applies the lever of equal protection in holding that “[t] hirty-odd years after the Court ruled that ‘separate and equal’ failed to pass constitutional muster, it should apply the same standard to what is separate and unequal.”57 The present “Commonwealth” status of Puerto Rico is a compromise between independence and statehood. Although the states of Massachusetts, Kentucky, and Virginia are referred to as commonwealths, the Commonwealth of Puerto Rico differs significantly from the American states. Most notably, Puerto Rican voters on the island do not elect representatives to the legislature in Washington. In addition to the de jure difference, there are significant de facto differences in treatment, such as lower levels of funding for most government programs.58 The United States Supreme Court has upheld these differences, as long as some justification, or a rational basis, has been found.59 But, justifications invariably operate from the “reality” of legal domination in denial of the tension produced by difference in law. Colonial status in American law constitutes the subjugated population under law as “other” in much the same way that victims are created under civil rights law,60 but the promise of equal status under law constitutes the colonial setting. Citizenship is a facet of Puerto Rican colonialism.

Administered Land 55. The district court was established in Puerto Rico in 1900 as a socalled “territorial” or “legislative” court under Article I of the Constitution. Initially the president appointed its judges for a term of four years. See act of April 12, 1900, ch. 191, at 34, 31 Stat. 77, 84 (1900), amended in 1917. In 1966, the court acquired the attributes of an “Article III” court—that is, a court organized under the provisions of the Constitution. 56. “Puerto Rico: Colonialism as Constitutional Doctrine,” review of The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal, by Juan R. Torruella, Harvard Law Review 100 (1986): 450–451. 57. Torruella, The Supreme Court and Puerto Rico, 268. 58. See Cabranes, Citizenship and the American Empire, n. 56. “A 1981 study by the Comptroller General of the United States found that Puerto Rico received less favorable treatment than it would have received as a state under about twenty important federal spending programs, including Supplemental Security Income, Aid to Families with Dependent Children, Medicaid, General Revenue Sharing, social services under Title XX of the Social Security Act, and supplemental programs for educationally disadvantaged children under the Elementary and Secondary Education Act. 59. Harris v. Rosario, 446 U.S. 651, 65152 (1980) (per curiam). 60. Kristin Bumiller, The Civil Rights Society (Baltimore: Johns Hopkins University Press, 1987).

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Another form of legal hegemony is administrative. The law may put local interests under the authority of bureaucrats in Washington, D.C., as exemplified by the Hispanic land grants in northern New Mexico. This land, settled by the Spanish in the sixteenth century and farmed for three hundred years when Americans defeated the Mexican government in 1848, has now been sold or is held by the U.S. government. Today the U.S. Forest Service, an agency of the Department of Agriculture, manages some of these lands. Privately held land feels the effects of clouded titles, but it is the federal presence on contested territory that presents the most vivid picture of “occupation.” Management of this contested territory supports the application of the occupation thesis to national forest lands throughout New Mexico, but generally around Santa Fe and to the north. Where sovereignty justifies separation in the case of the reservations and citizenship perpetuates colonial status in the case of Puerto Rico, the basic norm of federal legal hegemony in the “country” of northern New Mexico is management.61 Bureaucrats clothed in outfits and doctrines supplied from Washington provide legitimacy for federal control. Disputes over the extraordinary federal presence as landowner in the West have raged throughout American history. From its inception, the authority of the national government over land held as national forests has been limited. The Supreme Court, reviewing that authority in 1978 in the case of U.S. v. New Mexico, ruled that “[t]he legislative debates surrounding the Organic Administration Act of 1897 and its predecessor bills demonstrate that Congress intended national forests to be reserved for only two purposes—[to] conserve the water flows, and to furnish a continuous supply of timber for the people.”62 This stance was confirmed by administrative regulations announced after passage of the enabling legislation and, according to the Court, by a legislative history of struggle to limit the national governments control over the forests.63 Sometimes local interests mount struggles against federal policy that challenge the authority of the government in Washington, D.C., over the forests. It was evident in the Sagebrush Rebellion, but nowhere is the tension

61. Management is a form also reflected in the treatment by the Immigration and Naturalization Service of illegal aliens who have not “entered” the United States by permission of the Immigration and Naturalization Service. 62. 438 U.S. 696 (1978). 63. United States v. New Mexico, 438 U.S. 696 (1978), discussing state claims to authority over water in the national forests.

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between local residents and federal administrators more deeply grounded in cultural difference than in northern New Mexico.64 Here, title to land has been disputed since the United States took the region from Mexico under the Treaty of Guadalupe Hidalgo in 1848. Although the treaty recognized property rights under Spanish, then Mexican law, individuals in the communities held only small parcels of land around their homes. Most of the rest of the land, called ejido, was held in common for the community. The United States government has had much more difficulty with the collective Hispanic claims and refused to recognize many. The grants or mercedes developed under the Spanish system of land law. Following the treaty, forty-five Hispanic and eighteen Pueblo Indian grants were affirmed, eighty-one more Hispanic claims were accepted in part, and two hundred were rejected entirely.65 The protection of land grants came in Article X of the Treaty of Guadalupe Hidalgo, but the Senate deleted this protection in ratifying the treaty. Although, claiming not to annul protection for land grants in “The Protocol of Queretaro,” only about 24 percent of the total acres claimed in New Mexico were confirmed.66 Many of the recognized grants were ultimately lost due to confusion over ownership in American law and the interest of speculators. The land grants symbolize both a traditional homeland for Hispanics in America67 and the communitarian premises of traditional Hispanic rural life.68 In stark contrast to the American conception of individual possession that came to support aggressive entrepreneurial enterprise about the time the lands of northern New Mexico were acquired, the Spanish system held large tracts in common. This was not a system that would be easily accommodated to American expansion. As one commentator put it, the tragedy of the grants is “the tragedy of Northern New Mexico . . . had [the Hispanic population] managed to retain ownership of the common lands of their community land grants, the region might have maintained a large rural Spanish-American population supported by communal and individual development of the nat-

64. See, in general, the work of Malcolm Ebright, Land Grants and Lawsuits in Northern New Mexico (Albuquerque: University of New Mexico Press, 1994). 65. Clyde Eastman, “Community Land Grants: The Legacy,” The Social Science Journal (1991) 28: 104. 66. Ibid. 67. George I. Sanchez, Forgotten People: A Study of New Mexicans (Albuquerque: University of New Mexico Press, 1940); Richard L. Nostrand, Hispano Homeland (Norman: University of Oklahoma Press, 1992). 68. Eastman, 101; G. Emlen Hall, “Land Litigation and the Idea of New Mexico Progress,” Journal of the West 27 (1988): 48.

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ural resources.”69 The tragedy has not come about without anyone noticing or without considerable struggle. In the 1960s, local groups formed under the Abiquiu Corporation, and then as the Alianza Federal de Mercedes (Federal Alliance of Land Grants) or Alianza, began to intensify their protests against occupation of the Hispanic lands by the United States. Led by Reies Lopez Tijerina, the Alianza directed increasingly militant actions against agents of the federal government. Some of the most violent were directed toward the Kit Carson National Forest and its federal administrators. One extended confrontation involved occupation of the Echo Amphitheater Campsite north of Ghost Ranch. Tijerina tells his story in Mi Lucha por la Tierra,70 the chronicle of the land grants and his struggle to return the land to the Hispanic people. Another incident, the “Courthouse Raid,” has been the subject of a number of books and articles.71 “The Trial of Reies Lopez Tijerina,” by political scientist Harry P. Stumpf, analyzes this incident.72 The trial covered the legal response to an event in early June of 1967 when armed Hispanic land reformers entered the courthouse in Tierra Amarilla, New Mexico, under the banner “Tierra o Muerte” (Land or Death) and pushed around the occupants, including a number of government officials. The result was a shootout in the old West style. The “courthouse raid” resulted in an extraordinary police action involving the National Guard, and many arrests asserting the hegemony of federal authorities over the dissidents and the consensual law of the United States over the civil law of the land grants. The subject of the trial is described as “. . . the mercurial Tijerina— eloquent, but with little formal education, and unversed in the law. . . .”73 The authors provide a detailed account of the legal issue that is the cause of the event at the center of the trial, title to land. Their account, in part because of its detail, is informative, sensitive, and characteristic of the liberal ideology in law. The sensitivity of the authors, however, is humanistic, and its presence in the piece distinguishes between the natural or given 69. Clark S. Knowlton, “The Moral Land Grant: A New Mexico Tragedy,” Journal of the West 27: 1988, 59–73. 70. Mexico: Fondo De Cultura Economica, 1978. 71. Peter Nabokov, Tijerina and the Courthouse Raid (Berkeley, CA: Ramparts Press, 1969); see also Patricia Bell Blawis, Tijerina and the Land Grants: Mexican Americans in Struggle for Heritage (New York: International Publishers, 1971). 72. Harry P. Stumpf and Carrol W. Cagle, in Political Trials, ed. Theodore L. Becker (Indianapolis: Bobbs-Merrill, 1971). The account provides an opportunity to view the construction of law at a level that is addressed infrequently, at least in American political science. The vitality of that moment and the response of the academy show the role of social science scholarship on law in cooling out the passions of the period and discrediting the validity of legal claims. 73. Ibid., 183.

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quality of law and the emotional or transient quality of values. This separation of law from politics preserves the innocence of law and, ultimately, the dominance of colonial convention.74 In the case of the land grant struggle, the consequence is to place the “emotional” Hispanic identity at odds with the reasonableness and consistency of the law. Legal reason dominates here by mediating between cultural differences, its neutrality favoring those interests it represents. One of the characteristics of occupied territory is the potential for explosiveness. Like the other cases, there is plenty of tension around the local sense that the land is being occupied, even though, like the others, the roots of the conflict go deep into the nineteenth century. I first presented this analysis to an international gathering of political scientists in Santa Fe, New Mexico, little more than two weeks after hundreds of local residents stormed into a city council meeting in Santa Fe to protest the shooting death of Francisco “Pancho” Ortega by the police. At that meeting, a resident described the Santa Fe police as “an occupying military force” to applause from the audience.75 Other participants spoke of “the Raza” being pushed out of the community, while “the Ricos” were protected by the police. These events never penetrated the conference site in the hills above Santa Fe; although, had they been adequately interpreted for an academic audience or sufficiently volatile to disrupt the proceedings, we might have benefited. Within a regime, however, there is far greater capacity to dominate through the bureaucratic mechanisms of a nation, as well as legally. This, then, is the characteristic that differentiates the northern New Mexico case. Here, the expectation is of quiet, that the law of the state will have dominated, made natural, the relations of power stemming from the war with Mexico in the middle of the last century. The failure of law in this regard speaks to the deep pull of cultural ties that separate this region and its claims from those that have been more fully “acculturated.” Although commodified in “Santa Fe Style,” the culture is not well known and sometimes not recognized as part of the United States. Since much of the land is still held by the federal government, it is in important respects the bureaucratic processes of administration that hold the territory rather than the more traditional liberal instruments of consent.

74. Legal language transforms the other countries of American law. From the INS compounds that are not “in America” to the immigrant and homeless children that are not able to go to school because they have no residence, the law that governs these other countries blunts the inconsistency of these phenomena. 75. See Puntos de Vista, 5, no. 3 (June–August, 1993): 10.

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The Law Within Contested sovereignty over native inhabitants, a separate and unequal citizenship status for residents of Puerto Rico, and federally administered lands in northern New Mexico depend on a body of law that keeps these populations at the margins but also within American society. At times, full expression of cultural differences is thwarted, but where convenient, cultural differences are a necessary presupposition for the mediative role of “neutral” law. The law does these things as a reflection of diverse American interests, while positive jurisprudence keeps us from seeing the multiplicity of interests in law and its uneven consequences. Valerie Kerruish, an Australian sociologist of law, has tackled some of these problems. In Jurisprudence as Ideology, she proposes a “realist and relational theory” that sees people and law as existing in relation to one another.76 As Kerruish has noted, jurisprudence denies “. . . the selfreferential character of legal justifications.”77 Her approach self-consciously takes on the internal nature of jurisprudential arguments. Difference is evident in the law, but there is little change in how law is understood in response to the differences it maintains. The inconsistencies and self-interest evident in the legal status of the “countries within” America do not become part of jurisprudence, even to the extent that it makes sense to talk about these places as countries in traditional jurisprudential terms. Thus, it helps to draw from literature that calls our attention to the territory law occupies. American jurisprudence denies there is occupied territory on the upper reaches of Fifth Avenue. And, although the legal differences are profound, jurisprudence also fails to account for its presence on reservations, in the territories, and in many historically distinct lands that it administers. Jurisprudence asks us to lose ourselves in its rules and to consider right in those terms. Law’s empire is successful when it transforms its relations from colonial to natural. Law claims to be above the particulars and the interests of normal human conduct, and maintains innocence when it comes to subjugated people.78 The basic premise of liberal legalism is that when it comes to the law, Harlem is no different from other neighborhoods in America. In American jurisprudence, the different social life of law in Harlem or northern New Mexico has no meaning. This jurisprudence makes few concessions to diversity in the human experi-

76. Valerie Kerruish, Jurisprudence as Ideology (London: Routledge, 1991). This perspective follows the work of Alan Hunt, whose book Explorations in Law and Society (New York: Routledge, 1993) brings together a decade of scholarship in which he has taken legal sociology beyond the regulatory framework. 77. Kerruish, Jurisprudence as Ideology, 6. 78. Ibid., 195; see also Peter Fitzpatrick, The Mythology of Modern Law (London: Routledge, 1992).

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ences under law, while law itself is incredibly diverse in its application to people who live outside middle-class culture. If they do not accept the law, they will be regulated by it. The blindfolded woman holding the scales of justice is reflected throughout the law—in the color-blind doctrines of equal protection, in the class blindness of property rights.79 And, of course, law, in the classic formulation, prevents rich and poor alike from sleeping under the bridges of the Seine. As law tells its own story, it denies the place of interests.80 Contemporary sociology of law brings pockets of difference into jurisprudence. For twenty years, social scientists have been fascinated by the rich array of legal forms, their “plurality,” as it were. 81 Sometimes the work acknowledges the influence of a sovereign legal order. Often it does not. Inquiry about groups and conditions dominated by the conventional or pervasive “sovereign” has offered a parallel framework. Themes of hegemony and resistance fascinate scholars.82 One perspective on dominated groups comes from Antonio Gramsci, who distinguished between the “dominant” and the “subaltern.”83 The subaltern, also known as “the other,” is said to tell us who we are.84 To describe the other as a part of the whole, to see the reservation system as part of a liberal scheme for property, the academic world places law in society.85 In a paper on the cultural appropriation controversy in Canada

79. John Brigham, Property and the Politics of Entitlement (Philadelphia: Temple University Press, 1990). 80. Legal realism, which makes interest central, maintains its special place by keeping formal processes at the center of legal lore. See John Brigham and Christine B. Harrington, “Realism and Its Consequences,” International Journal of the Sociology of Law 17:1 (1989): 41–62. 81. Sally Engle Merry, “Legal Pluralism,” Law and Society Review 22 (1988): 869–896; Brian Z. Tamanaha, “The Folly of the ‘Social Scientific’ Concept of Legal Pluralism,” Journal of Law and Society 20 (1993): 192–217. 82. Mindie Lazarus-Black and Susan Hirsch, eds., Contested States: Law, Hegemony, and Resistance (New York: Routledge, 1994). 83. Antonio Gramsci, “History of the Subaltern Classes: Methodological Criteria,” in Selections from the Prison Notebooks, ed. and trans. Q. H. Hoare and G. N. Smith (New York: International Publishers, 1971). See also Ranajit Guha, “On Some Aspects of the Historiography of Colonial India,” Selected Subaltern Studies: Writings on South Asian History and Society (Delhi: Oxford University Press, 1980). 84. According to Kendall Thomas, the subaltern’s view tells a story of which constitutional history “has saved all too little of authentic record and tried to forget or. . . .” For Thomas, writing in the tradition of critical race theory, we should know about the subaltern to set the historical record straight and in order to hear the voices from the grass roots. Kendall Thomas, “Rouge et Noir Reread: A Popular Constitutional History of the Angelo Herndon Case,” Southern California Law Review 65 (1992): 2599, 2665. 85. The colonial experience is not simply one of military domination; the process of colonization operates through symbolic transformation. See Timothy Mitchell, Colonizing Egypt (Berkeley and Los Angeles: University of California Press, 1988); Edward Said, Orientalisim (New York: Vintage Books, 1979), and Culture and Imperialism (New York: Knopf, 1993).

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that focuses on native claims, Rosemary J. Coombe86 sees the characteristic feature of the other as representation “. . . that projects upon non-Western peoples qualities and characteristics that are mirror opposites of the qualities the West claims for itself.”87 A parallel is evident in the language of colonialism. We are being very self-conscious about how much we learn from those we hold within, whether it is in the mind, the home, or the society. That is in Baldwin, too. “Walk through the streets of Harlem,” he says, “and see what we, this nation, have become.”88 The dominant is responsible for and reflected in the other. In the end, although recognizing the importance of the anomalous and the marginal as sources of insight, the analysis suggests law functions in a way that is at odds with the postmodern critique. Postmodernism is part of liberalism, and it shares a family resemblance with the ideologies of regulation. Where regulatory law proposes to create an other that stands apart while under its control, as with Indian reservations and territories, a constitutive force hopes to integrate. Its success is in the disappearance of the other, on the legal agenda if not in practice. This is to some extent the case with the conquered lands of northern New Mexico. As an alternative, the constitutive framework draws on the importance of context to alter the dominant rationale. Here, law in the life of “the other” realizes both the imperial quality and formal structure while revealing the contingent practices that make up domestic law. In opposition to the formal denial of the interests behind law, treating law in relational terms means making the conditions within which people live part of law’s story. These conditions produce the constructed subjectivities that are law’s consequence. The subjectivity of the Native American on the reservation as semisovereign, of the Puerto Rican on the island as semicitizen, and the Hispanics of rural New Mexico who graze their sheep on federal land as outside the law all work their way into the consciousness of both the subjugated and those who do the subjugating. It is not law, then, that becomes plural. Rather, the jurisprudence of that law, understood contextually, must necessarily cede its place to another kind of jurisprudence. The lessons from Indian reservations, the territories, and the federally administered lands of northern New Mexico are that the formal or regulatory framework stands outside the practices of law while practices in these countries in America affirm the foreign nature of law. Law in these places 86. Rosemary J. Coombe, “The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy,” Canadian Journal of Law and Jurisprudence 5 (forthcoming, 1993), pagination from author’s draft. 87. Coombe, “The Properties of Culture,” 10. 88. Baldwin, Nobody Knows My Name, 71.

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does not constitute social identity, as it does in much of America, and that has a bearing on jurisprudence. Law’s formalism is often in tension with the specificity of place, but this tension is most pronounced where identification with the practices of law is absent. The failure to constitute the social relations in which people live leaves law in these places more peripheral than it is in much of the rest of the United States. As long as the reservation is Navajo tribal land, for instance, federal presence will be foreign. As long as the federal courts in Puerto Rico operate in English, they will be foreign. As long as the Forest Service follows bureaucratic guidelines from Washington, it will be administering occupied territory. And, of course, as long as the law is white and the population is black, the police in Harlem will be an occupation force.

III M ATERIALIZING L AW

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P ART III I NTRODUCTION

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aving theorized the split between law and the putative real world, and seen this split and the real world of laws for the politics that it contains, we have laid a foundation for discussing the material nature of law. We concentrate here on the material forms that law takes. In some, law simply materializes as a place, the courthouse. In another instance in which we can speak of law materializing, law takes the form of market relations and gets its identity along with the economy. In the end, the emergence of law as a thing is contested in the global economy. Here its traditional sites, the buildings of law, seem less significant, and the national jurisdictions that have been home to law for hundreds of years are challenged by bigger and grander structures of international culture and capital. We begin, in Part III, with court buildings. Here, by examining some of the most clearly physical aspects of law, legal phenomena materialize in the sense that law takes on or presents itself in the form of and with the quality of a thing. Thus, the buildings that situate, symbolize, and dispense justice are understood both as law and as the expression of law. This attention to places and things, sites and signification, as law is the sort of activity that materialists over the millennia have posited as the foundation for social life. But, our treatment of court buildings is not material in some simple, physical sense. It incorporates a clash between the ideologies of architects and of legal professionals. These clashes reflect those we have already addressed, the clashes between professional communities that emerged in outlining Theoretical distinction between law and politics, such as those between

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medicalization of women’s bodies and legalization of matters like abortion discussed in Part I. Between the courts with which we begin here and a concluding chapter on a global materiality for law, we develop the important but neglected subject of the relationship of law to the economy. We address goods as law constitutes them, and we look at the commodity form as it is manifested in legal phenomena. Since the middle of the nineteenth century, modern social theory proposed a connection between the relations of production and consumption and the nature of law. Though it is not common presently, in the analysis identified with materialism, these economic matters are said to provide the forms from which law emerges. This generative aspect of the relations between the economic and the legal returns us to the positivist proposition that law is an imperfect expression of the real world. In a materialist formulation, law and the social relations that embody it emerge together. In this sense the materialization of law is a constitutive process. In the concluding chapter, I examine the effort in some quarters to posit a global materiality that is beyond the reach of law. This is a movement in epistemology and jurisprudence. We end with a more optimistic perspective on the power of legally constituted institutions, from the neighborhood to the nation-state, in the face of the immanent ideology of globalization and its substantial material rewards for those who determine the form it is to take.

7 L AW B UILDINGS

? We shape our buildings, and afterwards our buildings shape us. WINSTON CHURCHILL, 1943

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mericans moved, in the last century, from framing law in Greek temples, to processes symbolized by electronic circuitry and video equipment. The Supreme Court building in Washington represents the old model, while law as process finds its expression more generically in the modern skyscraper and the television monitor. Since construction of the Supreme Court in the 1930s, this building has been a familiar referent for law not only in the United States but also around the world. With its allusion to the classics, the Court has flourished as a legal image in spite of modern architectural styles arising at about the same time. The building is rarely entered, but its material form has an impact. The Court, federal law in America, and to some extent law as a movement in the world is known by this classical building. Modern courts employing bureaucratic practices are being supported by the mythology of adjudication. The triad no longer ref lects vernacular practices, but the portico as logo is incorporated into the video screen that now provides the structure through which we observe the daily goings-on in court. These developments show the extent to which public images of justice are constructed. In addressing institutions and processes against the claims made for legal form, we may better understand the nature of law’s positive foundations.1 1. Peter Goodrich, “Doctor Duxbury’s Cure: Or, a Note on Legal Historiography,” Cardozo Law Review 15 (1994): 1567–1589, 1568.

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Television may be the dominant place in the culture for law. But the success of the Supreme Court’s building has produced imitations, and even its image has a material dimension. New court buildings framing law in architectural structures are going up not only in the United States but also around the world. And versions of the popular American temple of justice, which may become a trademark or logo placed in the corner of a TV screen, stem from the material presence given to law in its buildings.

The Materialization of Law Ancient Greece fascinated the West when the United States was founded, and the federal architecture popular in the period is full of references to Greek (or Attic) forms. The roof triangle or portico supported by the columns in front of the Supreme Court represents that fascination. The American founders were students of the Enlightenment, and they were influenced by the new science of archaeology. Ancient Greece represented a time “simpler and more direct; nobler and truer than Rome,” with lessons for a new democratic political culture.2 The buildings and the statues that adorned them were “just then coming to light and being popularized by exhibition of the Parthenon’s sculptures in Britain. . . .”3 As George Peet and Gabrielle Keller wrote in Courthouses of the Commonwealth, “The citizens of New England came to live in Greek houses, worship in Greek churches, shop in Greek markets, and keep money in Greek banks Colonial and Federal New England was remade in a new, white, and monumental way.”4 Fifty years after it waned locally, Greek style took its grandest form when the forces in Washington decided the United States Supreme Court needed a new home. Through construction of the Supreme Court under the stewardship of William Howard Taft, the portico returned as a symbol of judicial power. Former President Taft chafed at the notion that the Supreme Court should share the Capitol with Congress, and he formulated a plan for a new building that would expresses the independent nature of the judicial branch and the new stature of the federal system. The present Supreme Court was com2. George Peet and Gabrielle Keller, Courthouses of the Commonwealth (Amherst: University of Massachusetts Press, 1984), 92. 3. Ibid., 93. 4. “Apart from the natural desire for stylistic change, the end of the Greek Revival in the North was brought about in part by its acceptance in the South. Southern ‘Greek Apologists’ like Calhoun claimed legitimacy for the institution of human bondage by trumpeting the fact that the ancient democratic Greek city-states had been a slaveholding society. . . .” Peet and Keller, Courthouses of the Commonwealth, 93.

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pleted in 1936. The building had just been finished when President Franklin Roosevelt challenged the Court over its reaction to his New Deal policies. This was to become the battle that signified the preeminence of the judiciary in the United States. The simple shapes of classical Greece, long part of vernacular architecture in the West, speak to us in various ways. In the United States, the portico, a triangulated pediment supported by columns, has become associated with judicial authority over politics in general and the Supreme Court in particular.5 The triangle is a key feature of the portico, and this same shape outlines the space beneath the domestic roof to which we give the name attic for its Athenian origins. Americans began to associate the portico with local courts during the Greek revival of the 1820s. With its structural simplicity and its allusions to classical temples, the form evokes law and promises of justice. Like a number of other traditions from the American founding, the portico did not materialize in federal courts until over 100 years after the Constitution was ratified. This was roughly the turn of the last century. Most cultures rely on places to make justice and its processes real.6 This was the case at the end of the last century, and it has been especially true for the Supreme Court for over 100 years. The influence goes beyond the opinions. Now national legal broadcasts, such as network news shows and cable TV (e.g., Court TV), regularly invoke images drawn from the portico of the Supreme Court building, and photographers have positioned litigants on the steps beneath the pediment for half a century now. Even as the portico appeared in its most dramatic statement for American law, the configuration of social forces that linked law to Greek symbols had been on the wane for some time. Rather than remaining majestic, local courts seem to be diminishing in significance while alternatives, such as informal institutions, are on the increase. The images of justice are shifting away from the grandeur that associated courts with the great traditions of lawgiving. The attic form found its highest expression in the U.S. Supreme Court at a point when a temple represented less and less of what Americans confronted when they came in contact with law. To explore the meaning of this change, we turn to the scholarship that explains appellate tribunals. 5. The tympanum, or face of the pediment, on the United States Supreme Court, is a single 250-ton slab of Vermont marble sculpted by James Earle Fraser after Theme “Contemplation of Justice.” 6. See Brinkley Messick, The Calligraphic State, on the absence of courthouses in Yemen in the nineteenth century and the emergence of market formalisms . . . legal subjects made equal on paper. The divine word represents the clarity and pure authority of the word of God. Messick describes judgment documents that require scrolling up and down the texts as a basis for “the archival state.” See also Donald K. McKim, The Authoritative Word (Eugene, OR: Wipf & Stock, 1998).

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Positivism has dominated jurisprudence in the United States over the last fifty years. With its appeal to convention and attraction to science, positivism has supported reliance on law as announced by state institutions. The popular version of positivism in American law is legal realism. Political scientists in the 1970s were introduced to legal realism as established fact. We were taught that decisions made by men and women have human qualities. The most extraordinary thing about many insiders and lawyers generally is that they present the Supreme Court through the perspective of realism as if this is a new discovery. Rather than being new, the political view of judging has become the orthodoxy.7 In this, the authoritative foundation of law in America has shifted. Realism is an institutional as well as a theoretical reality. Political explanations have become a nearly sufficient basis for the authority of the Supreme Court. The surprise is not that the Court is political, but that those who work with the institution, such as the Congress, and those who observe the “highest court in the land” closely, such as journalists, accept this aspect of the institution as an adequate basis for its preeminent place as an authority on the Constitution. Attention to the Supreme Court in the culture ranges from muckraking criticism, such as The Brethren, to fawning praise, such as Fred Friendly’s The Constitution: That Delicate Balance. The authors of The Brethren, Bob Woodward and Scott Armstrong, upset many people. Yet, they merely clarified a view of judges as political actors that has been around for some time. Both criticism and praise contribute to the cult surrounding the institution, and both depend on reflexive defenses.8 The power of realism is in the commanding presence of the institutions and the considerable homage paid to the state. Once, when I had occasion to talk with an intern at the Court about the value of access, the issue arose as to what might be gained from being on the inside and, conversely, what one risked losing. In a spirited defense of the insider perspective, this intern claimed that the advantage in getting behind the scenes was that one could never teach constitutional law with a “straight face” again. To drive home her point, she argued that the reality of the chief justice wearing his slippers inside the Court demystified the Constitution. Legal scholarship in America relies on this skepticism, as in the work of David O’Brien in Storm Center,9 where the Court’s most prominent feature is its politics rather than law. At other times, the skepticism evolves into some7. John Brigham and Christine B. Harrington, “Realism and Its Consequences: An Inquiry into Contemporary Sociological Research,” International Journal of the Sociology of Law 17 (1989): 41–62. 8. John Brigham, The Cult of the Court (Philadelphia: Temple University Press, 1987). 9. David O’Brien, Storm Center, 6th ed. (New York: Norton, 2003).

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thing technocratic,10 while remaining supportive of institutional authority. Both approaches are influential, and both fail to problematize the state and the judicial construction of legal ideologies. The result is a sterile positivism that has superseded the formal promises associated with the grand buildings of the not-so-distant past. In the case of “the attitude model,” scholarship in the behavioral tradition relies on the need to simplify the culture in order to manipulate it mechanically. In the name of rigor, the complex world of legal ideologies is reduced to simple binary codes. The result loses a great deal of the institutional meaning. Martin Shapiro, a proponent of the political view of judging, proposed that its institutional frame was “the logic of the triad,” in his comparative analysis Courts.11 The frame sets up a triangulated relationship between disputants and courts. In this arrangement, the “logic” is a court’s effort to maintain its legitimacy in dealing with disputing parties. With a tendency for the losing side to turn against the court, the institution draws on a reserve of authority in support of its holding. Law in the West is based on the triadic function. The “logic of the triad” stands as a symbol for two parties coming before the judge for a decision. Through courts, people are brought into law’s social space, and institutional practices are maintained. Shapiro’s description of courts brings disputes and practices together through institutions. Building from the triadic structure, law and office maintain authority over a dispute. Doctrine provides a basis for deflecting the discontent of the losing party from the institution. In conjunction with positive theories of law, the logic of the triad supports the institutional authority of courts. Law and the offices of a court give structure to how disputes develop. This framework, combined with positivism in social science and its tendency to rely on institutions, is a foundation for the hierarchical authority of law. The triadic form is becoming less evident in local courts, where adjudication has given way to “dispute processing.” Although we carry on a connection with the classical forms at least at some levels, our practices are shifting to process symbols and electronic images. We look to three areas for the meaning of this development: (1) local justice and the Midtown Community Court in the rejuvenated Times Square area of Manhattan; (2) Court TV and the special case of the O. J. Simpson trial; and (3) the courtroom as it was represented in (and to some extent marginalized by) the 1990s television series, L.A. Law. 10. Jeffery A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge: Cambridge University Press, 2002). 11. Martin Shapiro, Courts (Reading, MA: Addison Wesley, 1981); see also Vilhelm Aubert, “Courts and Conflict Resolution,” Journal of Conflict Resolution 7 (1967): 26–42.

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Where the move away from adjudication in favor of the processing of cases is very advanced, legal authority is linked to images of modernity appearing as video monitors inside courts. And, it is through the television screen that we now most often see the inside of the courthouse. I think of the relationship between the classics and the shift to process in vernacular courts with reference to the attic. In the domestic attic, the triangulated form under the roof evokes images of past glory and fading memories. Our thoughts about courts seem to be stuck in the attic space as the bureaucratic reality of courts develops.

The Attic and Ideas of Justice The pediment that sits atop the Supreme Court represents courts as temples and frames the attic. Attic, originally a Roman reference to one who was from Athens,12 came to indicate someone or something from Greece and, more broadly, the space under our roofs. In the vernacular, the attic is a space where we store old stuff. Above the places where we live and beneath the roof is a space that has some of the evocative qualities of the madeleine, the common little cookie that did so much for Proust.13 When we bring forth, for instance, something long hidden, an old doll or a yearbook, we may be bringing it from the attic. The attic represents the triad long associated with justice. The triad framing the attic suggests an institutional array where two disputants are equally balanced and a case is heard or adjudicated. This is the preferred picture of the Supreme Court that draws attention from the dispute to the institution.14 Adjudication, the model of trial, is still the picture conventionally associated with courts at the local level. Reasoned adjudication is rarely seen on a visit to courts in America. Interpretive social science has sought to build a nonpositivist social inquiry by situating courts in the cultural life of the community. In Virtuous

12. Cicero’s letters to Atticus were to the Roman who lived among the Greeks, and they remain of some interest due to their attention to the cultural variations between the two regions. 13. Having spent some time in my own attic, I can comment from experience. In any season, my attic would represent the extreme, hot in summer and cold in winter. And, I am surrounded by memories (old baby toys, camping gear now little used, and clothes no longer in fashion) and aspirations (another baby, a camping trip). From this stuff we build the cultural attic John Brigham, “Exploring the Attic: Courts and Communities in Material Life,” in Special Issue of Law in Context on Courts, Tribunals and New Approaches to Justice, (1994) Oliver Mendelsohn and Laurence Maher, eds. Bundoora, Australia: La Trobe University Press, 131–155, 156. 14. See Sally Engle Merry, Getting Justice and Getting Even (Chicago: University of Chicago Press, 1990).

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Citizens, Disruptive Subjects,15 Barbara Yngvesson begins with a quote from Pierre Bourdieu: “The discovery of injustice . . . depends upon the feeling that one has rights.”16 Yngvesson draws on Bourdieu’s view of practice to identify various institutional forms or practices that mediate social life. She depicts the capacity of the court clerk to “govern” through everyday practices where she says that the local vernacular of “rights” is transformed into official charges of crime or everyday trouble in the exchanges of court staff with citizen complainants. She finds that “control is situated in the clerk’s practical mastery of local ways and local knowledge . . . and in his capacity to translate this skill into a definition of events. . . .” The clerk, she argues, is both in the community and in the legal system. He or she knows the court and knows his or her towns. Like the building the clerk guards, and the system whose boundary the clerk maintains, he or she sits in a culture, which also contains “the law.” The clerk obtains support by securing “. . . complicity in a decision that typically limits their access to the court while expanding his own options in monitoring the course of their trouble.”17 The clerk’s “practical mastery” is a source of power and a constraint. Yngvesson notes that . . . Constraint follows from engagement in a field of action. . . . Practice “unfolds in time.” This means . . . that the social positioning of the clerk in any case implies an ongoing relation of dependence with citizens whose complaints are the source of his authority at the court.18 The clerk’s “governing capacity” exists in relationship to citizens and with reference to understandings that he or she brings to bear on particular situations. Understandings or practices of this sort constitute the office of the clerk. Courts, perceived this way, are institutions made up of such practices. As a result of work by these scholars, and others, we have come to see the importance of practices in understanding courts. For instance, when Sally Merry criticizes the attitude perspective that would isolate individuals, she holds that “[l]egal consciousness, as part of culture, partakes of both the particularity of a situation and the overall context in which the situation is considered.”19 She emphasizes the different facets of law that arise from the 15. Barbara Yngvesson, Virtuous Citizens, Disruptive Subjects (New York: Routledge Press, 1993). 16. Pierre Bourdieu, Outline of a Theory of Practice (Cambridge: Cambridge University Press, 1977). 17. Yngvesson, Virtuous Citizens, 47–48. 18. Ibid. 19. Merry, Getting Justice and Getting Even, 5.

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social context. At least in the context of courts, general, popular understandings or perspectives serve as a measure of legitimacy as well as a standard for evaluation. Merry points to experience as a source of understanding. Here, through attention to the material life of courts and to institutional practices, we are addressing categories of experience. Similarly, Gerald Rosenberg’s Hollow Hope,20 published in 1991, shifted how we think about these institutions. Rosenberg suggests that the liberal hope for courts as policy makers is flawed and that we have been wrong to expect American courts to produce significant social change. His research suggests that changes only come with the assistance of the other branches of the government. Michael McCann points to the positive frame as limiting Rosenberg throughout most of his analysis.21 According to McCann, there is much more to the effects of courts then what they rule. This work moves beyond the positive, authoritative position, and the triad is becoming less characteristic of courts. What will remain of courts in the public and the scholarly representation remains to be seen. As I noted in The Cult of the Court, published in 1987, law “dominated the institutional rise of the Supreme Court to the top of the ‘administrative state.’” The architects of the modern American state, such as Chief Justices Edmund White, William Howard Taft, and Charles Evans Hughes, shifted authority in America to the federal government and to the appellate courts.22 Felix Frankfurter and James Landis also saw the steady extension of Supreme Court jurisdiction as “a reflex of the expansion of Federal power. . . .”23 Wolf Heydebrand and Carroll Seron identified the processes by which federal justice is being “rationalized,” taking the courts from adjudication to administration.24 The triadic form may represent the pinnacle of judicial authority. The tympanum is similar to an arrow. When offered as the symbol for the courts, the triangulated shape points the way to the place of the Supreme Court at the top of the judicial hierarchy and the end of the line in the bureaucratic pile that was constructed in Washington, D.C., during the New Deal. This is a process as evident in the spatial configuration of courts as in the details of case processing. 20. Gerald Rosenberg, Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991). 21. Michael W. McCann, “Reform Litigation on Trial,” Law and Social Inquiry 17 (Spring 1993): 1101–1129. 22. Brigham, The Cult of the Court, 100. 23. Felix Frankfurter and James Landis, The Business of the Supreme Court (New York: Macmillan, 1928), vi. 24. Wolf Heydebrand and Carroll Seron, Rationalizing Justice: The Political Economy of Federal District Courts (Albany: State University of New York Press, 1990).

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Institutions amount to ways of acting. In America, the dramatic steps to the bronze doors of the “marble temple” are the ultimate symbols of having gone “all the way,” in law. When robed men and women give opinions from the temple, those opinions have authority sufficient to reprieve the convicted and compel that the rejected be accepted. Because institutions give action authority, they require more reflective scholarly attention than they have been given. Like Justice Potter Stewart’s response in another context, we may have trouble defining an institution, but we know one when we see it. We know the Court through the marble temple, so when it serves as the background for a picture of a robed person we see that person in an institutional context. We are meant to be in awe when we take in the building, the courtroom, or even a wrinkled old man, if he is a justice of the Supreme Court. The symbols that constitute the Court as the ultimate judicial body give the institution interpretive authority. Various practices, such as wearing robes, listening to “argument,” and meeting in secret define the setting as a place of justice. Other practices, such as the incantation about “going all the way,” define the institution as at the end of the legal line in America. Practices draw on public perceptions of the institution, from journalists, scholars, lawyers, and citizens. Judicial commentary and commentary on the justices in various forms, from opinions to personality profiles, are sources that define institutional practices. Communities of people who share ideas about law carry the meaning of practices. Robert Cover exhorted his colleagues to tell tales, spin yarns, and create a legal order grounded in new practices. Cover’s call is “to stop circumscribing the nomos . . . to invite new worlds.”25 This is more difficult for those of us who operate outside the great law schools or do not have access to the appellate bench. The institutional life of the community of law professors makes their yarns particularly important. Thus, when we say that there are social foundations to law and office, we mean that the nomos is constituted by convention. The community of the Supreme Court is “law’s empire.” In the work of Yngvesson and Merry, the local legal community is provincial, but arguably part of this empire. Practices situate courts in interpretive communities. The communities familiar with it constitute an institution like the Supreme Court. Traditionally, these groups know something others do not. We say of a text, in the case of law, of a court, of office, that its social foundation is the group or community that can interpret the text or understand the court. The special sociological contribution of an investigation into the practices making up an institution 25. Robert Cover, “The Supreme Court, 1982 Term—Forward: Nomos and Narrative,” Harvard Law Review 97 (1983): 4.

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comes from identifying the ways of operating and the social relations behind them that give the elements of law and office their significance.26 A practice may constitute a Court. For instance, the assertion of judicial review by John Marshall in Marbury v. Madison (1803) reiterated a possibility. Others had mentioned such review, such as Alexander Hamilton in Federalist 78 and 81. But, judicial review was certainly not conventional wisdom or an undisputed understanding, much less constitutive of the institution at that time. Marshall articulated the possibility for the Supreme Court as a strategic move that drew on conventions such as the supporting claims in Blackstone’s Commentaries, the Federalist Papers, and the written Constitution. The practice became constitutive of the institution in this century around the time the building was constructed.27 Here, rather than taking the antiessentialist position on culture suggested by postmodernism and discussed widely in the early 1990s in the communities of law and society, constitutive practices ought to be seen as determinants of law. These practices become material determinants when they are institutional. Whether with texts or courthouses, constitutions or clerks, the materiality of the practices is in the people and places they constitute. The constitutive practices of courts are also a function of material interests. We see this symbolically at the national level in the similarity between the architecture of the Supreme Court and the New York Stock Exchange.28 In local courts, the practices are quite different from what they are for the federal system. Here, architecture of efficiency has taken over for the architecture of justice represented by the Supreme Court. In many localities the detention facility, once in the basement, has come to rival the courts of justice in physical terms.29 For instance, the Sonoma County Hall of Justice and Jail, a model of modern court architecture built in 1962, has a detention facility across a courtyard that is every bit as large as the facilities for justice. The next section develops the characteristics of this new architecture of efficiency and suggests its relationship to the older architecture associated with the Supreme Court.

26. Often the existence of practices has been linked to relativism and political choice rather than to essentialism and political constraint. Here, I hope to strike a balance. 27. Brigham, The Cult of the Court, 22–24. 28. An ad in the National Law Journal, June 6, 1994, A7, for the United States Code Annotated framed a picture of the Stock Exchange under the caption “The Law of the Land.” 29. Given the prevalence of the plea bargain, it would be interesting to see if the halls where so much of this bargaining takes place have grown at all in size.

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Justice and the Monitor Power in institutions depends on both functional and semiotic considerations. We see this in moving from the triad to the attic, from surface symbol to the constitutive qualities of legal culture. The Supreme Court building has become a symbol of law, but legal scholars misinterpret its meaning. In contemporary America, the symbolic promise of courts is less about justice than about adjudication and bureaucracy. There has been a shift in emphasis from the judgments symbolized by the promise of “Equal Justice Under Law” to a resolution that is efficient and final. These changes have been reflected in the architecture of courts for at least thirty years, and now they are becoming identified with courts on television. We can see the modern practices in such structures as the “Halls of Justice” building in Grand Rapids, Michigan, built in 1966, and the Sonoma County Hall of Justice built a few years earlier. The buildings are “modern.” They lack ornamentation. The straight lines, flat roofs, and boxy windows do little to elevate what goes on inside. The public signs are functional: They direct traffic, identify buildings, and instruct as to appropriate demeanor. The most impressive accouterment in Sonoma County’s facility is the Sheriff’s Department communication tower. The architecture reflects contemporary jurisprudence and its concern for efficiency.30 The principles of efficient administration are evident in the lack of artifice on the one hand and the visibility of computers on the other.31 Computers are “everyman” tools, and the familiar video screen is a symbol of up-to-date processing of information. Paradoxically, these moves have been associated with “friendlier courts.”32 The paradox is relative to traditions that emphasize the formal and imposing qualities of the older neo-classical and Victorian structures where the judge is elevated, the symbolic forms (Greek gods, Latin phrases) are high culture, and those who stand before the bench are presumably diminished in stature. In the modern court, the judge is closer to the witnesses and the symbolism is minimal. In the nationally publicized Los Angeles courtroom where the O. J. Simpson prehearing was held, the only traditional text in the interior design is the seal of the state of California. In the increasingly famil30. The Sonoma County facility has housed the accused killer of Polly Klaas, the little California girl who has come to represent the victim in the contemporary focus on victims as a basis for much of what goes on in criminal courts. 31. Carol M. Neal, “Courts Enter the Computer Age, but Slowly,” National Law Journal 14 (1992): 7. 32. This is especially true in the context of Alternative Dispute Resolution, where popular eagerness for access to justice (Merry, Getting Justice and Getting Even) appears as a model for future institutional sites.

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iar television presentations, the authority is in the commentary and in the audience where the victim’s family is prominently shown.33 New social institutions that have developed over the last twenty-five years expand the model of process and settlement by operating as adjudicative mechanisms without the basic characteristics of courts. For instance, “renta-judge” programs provide retired judges to settle disputes.34 Private mediation firms like Endispute, Inc. and nonprofits like the American Arbitration Association continue to grow.35 In these, as in traditional “alternatives” to public courts such as campus disciplinary proceedings, issues of public access have arisen.36 Institutional practices may be evident, absent, or transformed in the experiments with judicial practices in nontraditional settings, quasijudicial proceedings, and the “alternative dispute resolution” movement in the contemporary United States. In the Midtown Community Court in Manhattan, 37 the key elements of modern jurisprudence, informality and efficiency, come together in an ongoing “experiment.” For this court, the terrain is the social and economic fabric of the “Middle West Side.” The community is the midtown community of The New York Times, The Letterman Show, and the Broadway theaters.38 The court is located at 314 West 54th Street in a building that once housed the Magistrates Court and the Eleventh District Court. The building is next to the Midtown North police precinct headquarters. Operating nine to five, five days a week, the court handles nonfelony cases. Thirty-five percent of the cases are for “theft of service” (or fare beating—sneaking onto the subway), 20 percent petit larceny, 11 percent unlicensed peddling, 10 percent prostitution, and 9 percent low-level drug charges. This is only minor criminality, but the institution represents the modern conception of a court. In the Midtown Court’s advertising material, computer screens take the place of references to Greek democracy, and the promise of “the lat-

33. In the Simpson hearings, the families of Nicole Brown Simpson and Ronald Goldman sat directly behind the podium from which both prosecution and defense conduct their questioning of witnesses. 34. Note, “The California Rent a Judge Experiment: Constitutional and Policy Considerations of Payas-you-go Courts,” Harvard Law Review 94 (1981): 15–92. 35. Ellen Joan Pollock, “Mediation Firms Likely to Court Companies More Aggressively,” Wall Street Journal, December 3, 1993. 36. Richard Perez-Pena, “Private College Are Criticized for the Brand of Justice,” The New York Times, June 1, 1994, B22, 3. 37. Jan Hoffman, “A User-Friendly Experiment in Justice; Community Court Aims at Saving Time and Money in Dealing with Minor Offenses,” The New York Times, October 1, 1993. 38. Critics from the other, poorer city courts, all housed inadequately “downtown,” question the vast sums of money being lavished on a very visible institution in a particularly visible part of town.

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est technology” features “graphical screen interfaces.” Editorials from local papers tout the high-tech aspects of the institution. Employing the familiar “Windows” framework in processing cases, the court is symbolically linked to Microsoft. The advertising gives us the grand vision once communicated by the Greek symbols and Latin inscriptions on the buildings of another era. The institution appears user friendly. Electronic processes move the defendants through the system with the efficiency, and monitors that depict the cases to be called reflect the monitors on the desks of court officers. The overall impression is one of modernity and access. A reform aspect of the court is the use of alternative sentences combining treatment, education, and prevention with a strong impulse to direct the sentences back to the community through service. The former includes drug treatment, health, housing, and employment counseling, and the latter includes a variety of services such as sweeping the streets, cleaning the bus station, feeding the homeless, and local beautification projects. Rather than the traditional punishments that may affirm the authority of the court but do little for the population, these forms are highly focused on visible benefits to the population. Yet, in this way the benefit to state authority may be greater. Court proceedings in America have always been predominantly public. They are often hard to understand, and the public interest may fade as it did during the complex debates over suppression of evidence in the preliminary hearing on the O. J. Simpson case in the summer of 1994, but Americans have rights of confrontation and expectations of public proceedings. To most Americans, Kafka’s vision of an alien authority seems foreign, and “The Trial” is not a good symbol for law, although it has been popular for critical intellectuals.39 In this context, television in court and television about court has become critical for the authority of law. Developments in news broadcasting and in entertainment push courts toward more public presentation and greater familiarity with legal processes.40 One of the most important modern practices with regard to courts is visual access to them through television. The institutional homes of adjudication are now experienced visually and vicariously far more widely than they used to be. One of those developments, Court TV, appears to be an alternative to the traditional semiotics of marble and concrete. Therefore, we need to consider what television means for how we see adjudication. 39. John Bonsignore et al., Before the Law (Boston: Houghton Mifflin, 1992); Jacques Derrida, “Prejuges Devant La Loi,” La Facultey de Juger (Paris: Editions de Minuit, 1985). 40. Raymond Williams, Television: Technology and Cultural Form (Hanover, NH: Wesleyan University Press, 1974).

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Television claims to be a public account, yet, the account provided by TV may do a disservice to popular understandings of justice.41 With reference to expectations about guilt or innocence, one commentator notes that “[m]ore than anything else, it’s the cathoderay tube—not the prosecutor, not the defense attorney, certainly not the evidence—that gives a Baltimore juror his mindset.” He adds, “Television ensures that jurors are empanelled with ridiculous expectations.”42 Americans get much of their knowledge from TV, where through news and drama, court proceedings are represented. In the optimistic view of one informed observer, David A. Harris, Court TV . . . allows the public to observe the entire judicial process. No television producer selects a thirty-second slice of the day’s proceedings, based on the potential to entertain or boost ratings. The viewer can “attend” the whole trial. Thus Court TV makes the criminal courts accessible to virtually anyone with cable television.43 On the other hand, as Harris points out, most court time is not trial time and the image of courts that is publicly conceptualized through the video screen is largely of courts at trial. Television packages the legal culture and presents courts as a seamless expression of real life. This presentation popularized by Raymond Williams44 as “flow,” along with the expert commentary that accompanies television presentations, is becoming the new authority for courts. Joining with the promises of efficiency that are so often linked to video monitors, the new architecture of courts appears to be the television set. Here Americans maintain the “cult of the court” in another form at odds with the practice of adjudication. Many of the examples used to examine law in television were evident in L.A. Law,45 the influential and stylish television drama. That program placed these developments in context. I was drawn to the show because of its influ-

41. David A. Harris, “The Appearance of Justice: Court TV, Conventional Television, and Public Understanding of the Criminal Justice System,” Arizona Law Review 35 (1993): 785. 42. David Simon, Homicide (Boston: Houghton Mifflin, 1990). 43. Harris further points out that “[t]he network also presents experts to interpret events. Presumably, this may make for exactly the informed accountability our democracy needs, and will also encourage and enrich the public debate on the broader issues raised by the trials presented. This addition of Court TV to popular culture might mean, if nothing else, that the appearance of justice would more closely resemble reality” (Harris, “The Appearance of Justice,” 787). 44. Raymond Williams, Television: Technology and Cultural Form (London: Fontana, 1974). 45. Produced by Stephen Bochco (who also did Hill Street Blues and NYPD Blue) and Terry Louise Fisher, with music by Michael Post.

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ence on perceptions of law in America. These influences included the rise in law school applications during its run from 1986 to 1992 and the apparent subsequent drop in interest in a legal career as measured by law school applications filed after the show went off the air. The influence of the show and the evident sophistication of its writers are apt vehicles for understanding various tensions between parts of a culture, such as the legal profession, and the broader significance of law. And, it has gotten considerable attention since it went off the air. A cleverly titled Yale Law Review article by Stephen Gillers, “Taking L.A. Law More Seriously,”46 played off the jurisprudential conceits of Ronald Dworkin in Taking Rights Seriously. In it, the author argued that the show was important because it operated like a good law school class. Each episode made legal ideas the central focus and avoided easy answers. While acknowledging that the show was as much Hollywood as law with its headline-stealing cases and lack of legal drudgery, and noting that significant ethical issues are sometimes confused, Gillers praised the show and encouraged the legal profession not to write it off. Against an essentially pluralist tradition, constitutive theory documents the authoritative nature of culture.47 And, rather than simply treating the court in a TV show as a set to be put up and taken down at will, the structure of the courtroom on television should be recognized as one of the enduring symbols of justice in America.48 The courtroom in the show may be compared with courtrooms in other TV dramas as representations of the culture of place in law. Court TV employs a symbolic representation of the Supreme Court as its logo as do many of the networks when they cover legal stories. Because L.A. Law was not primarily a courtroom drama, the courtroom scenes are set against law in a number of other manifestations. There was the prominence of the boardroom at the beginning of each show that suggested the presence of civil in addition to criminal law and law as a business. There was also the centrality of the individual lawyer’s office—rather than the courtroom—as a place where law operates. Like police and detective shows, 46. Stephen Gillers, “Taking L.A. Law More Seriously,” Yale Law Journal 98 (1989): 1607; see also Robert Eli Rosen, “Ethical Soap: L.A. Law and the Privileging of Character,” University of Miami Law Review 43 (1989): 1229; Charles B. Rosenberg, “An L.A. Lawyer Replies,” Yale Law Journal 98 (1989): 1625. 47. This differs somewhat from cultural studies as they have developed in law over the last generation. Susan S. Silbey, “Making a Place for Cultural Analyses of Law,” Law and Social Inquiry 17 (1992): 39–48. 48. In addition to occasional viewing of L.A. Law during its run and other television watching, the author conducted research at the Museum of Television and Radio, 25 West 52nd Street, in New York City. The museum’s L.A. Law collection includes a symposium on the show produced by the museum in 1996 for its seminar series.

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this drama situated most legal work, and hence law, outside the courtroom. This was an important recentering of law. While the courtroom has changed little in appearance, its significance as a legal icon has diminished. Perhaps, the most significant development in the architecture of law49 is the role of television in constructing spaces where law resides. The elevated bench of the judge was meant to instill awe in the past, the box for the jury was a place to gather a group so that they might perform their duty, and the bar or rail has separated the public from the court for hundreds of years. But, the lawyer’s news conference, the celebrity legal commentators, video images of testimony (and video testimony), and the orchestration from the anchor desk are the forms through which law is transmitted to most of us today. It is through these latter forms, not the halls and walls of justice, that black and white Americans form their divergent opinions of cases from O. J. Simpson and Rodney King to the most recent police shooting of an unarmed black man. Given this shift, the fictionalized presentations of the halls of justice take on special significance. With a few notable exceptions,50 there is little scholarly work on courthouse design. Much of what there is remains local. In this work, local historical societies record their own courthouses. In addition, the grand contributions like those by the American Bar Association in conjunction with the American Institute of Architects, have tended to focus on the outside of the buildings rather than the interiors.51 This is in part due to the expectation that the interiors are less distinctive than the structures within which they are arrayed. Innovation in courtroom design has come from foundation support and academic interests as much as from the professional builders and the practicing bar. The round “courtroom of the future” at McGeorge School of Law in Sacramento has for twenty years been a model (“show court”) for courtroom innovation. It featured “up-to-date technology including: concealed television cameras; monitors on the bench, witness box, counsel and jury tables; a lectern which can recess into the floor; an x-ray viewing panel; and a screen which can descend from the ceiling for the viewing of overhead transparencies or slides.”52 Similarly, albeit on a more practical and operational scale, the courtroom of the Midtown Community Court in Manhattan 49. Or, “architectural jurisprudence.” 50. Richard Pare, ed., Court House: A Photographic Document (New York: Horizon Press, 1978); James J. Alfini and Glenn R. Winters, eds., Courthouses and Courtrooms: Selected Readings (Chicago: American Judicature Society, 1972). 51. ABA/National Center for State Courts, Twenty Years of Courthouse Design Revisited (Chicago: ABA, 1993); ABA/AIA, The American Courthouse: Planning and Design for the Judicial Process (Ann Arbor, MI: Institute for Continuing Legal Education, 1973). 52. ABA/NCSC, Twenty Years of Courthouse Design Revisited, 213.

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suggested new ways of organizing the work process with the intensive use of video monitors in a converted police court building. My own work, beginning with The Cult of the Court in 1987,53 addressed the symbolism of the Supreme Court building from outside and in. The U.S. Supreme Court chamber remains a video-resistant space that changes very little over the years. Its iconography, from the purple curtain behind the bench to the constant flow of traffic in (and almost immediately out) the back door, contribute to a sense of its considerable authority. Other courtrooms come into the public consciousness only when they have been featured in the news (which seldom includes pictures unless there is a video presence), as part of television or movie drama (which is common), or in literature (which probably only matters if it makes it to film or video). In the case of TV, a number of special considerations apply to the construction of the place where law happens. In the first instance, L.A. Law courts were courtrooms rather than buildings. The architecture of law on the show was almost always interior space. L.A. Law differed from the police precinct, with its storefronts and alleys, and the sheriff’s posse galloping over the western hills. Shows with this focus gave more attention to buildings or landscape as backdrop than did L.A. Law, once it lets you know it is in L.A. Westerns and contemporary action dramas like the Die Hard movies use entire structures as the set, blowing them up, shooting from them, dying on and in front of them. Indeed, the prominence of law themes in the Western genre, generally taking place outside, has a man rather than a structure as the embodiment of law. The architectural fact for L.A. Law is that law is depicted as taking place within buildings not around them. Were this a firm of architects, we would get to see buildings on sites as objects of struggle, but as we have said, the law in L.A. is presented as about ideas. Other rooms have been important to the representation of the legal process: the precinct house, the prison cell, the judges’ chamber, and the lawyer’s office. In one of America’s most compelling legal dramas, Sidney Lumet’s 1957 movie 12 Angry Men (the source of the story was a television play), the jury room is the focus of the action. In police dramas, of course, it is often the station house or, in the case of NYPD Blue, the “interview” room. In series like L.A. Law and Murder One, the lawyer’s office or the firm’s suite of offices becomes the center of attention. But by most accounts, TV has not totally shifted cultural attention from the courtroom as the center of the legal enterprise. In Law and Order, it is the finale. Even where, as in L.A. Law, it is not the actual center of the action in most episodes, the courtroom remains a place of distinctly legal drama and of climax. While the show makes bargaining more prominent than 53. Brigham, The Cult of the Court.

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its predecessors, the courtroom brings structure and finality. And, although it is more expensive to produce than a conversation, the limited, familiar space of a courtroom is relatively easy to capture on stage. In this regard, the TV courtroom represents the penetration of law in the culture as something situated in the interior relations of our mental and emotional lives. Rather than standing “bone white” on a hill behind the Capitol as the Supreme Court does, the courtrooms of TV are places we enter from the holding cell or approach from the litigants’ bench or view from the jury box. All angles reflect the constituted points of view law defines for us. While the Supreme Court or one’s local court are seen from cultural spaces not generally defined in law, streets, parks, parking lots, and the spaces of TV courtrooms are constituted inside law. In Imagining Crime,54 Alison Young draws our attention to what she calls “the trauma of the visible” in discussing the case of two-year-old James Bulger who was killed by boys only a little older near Liverpool in 1993. In this case, the boys were caught on video as they left a mall. Because the trial was not televised, the video image was of an aspect of the crime rather than the response of law. A video of the beating of Rodney King bore a similar relation to the trial that would follow, and situated both monitor (and camera) as the central feature of the case. With its decentering of the courtroom, L.A. Law is part of the shift from such structures to the authority of the video. The internal expression of law in the courtroom is necessarily on a more human scale than is the case when dealing with the external architecture of law. This reflects the popular understanding of television as a “hot” rather than a “cold” medium, like radio. Rather than massive bronze doors, larger-thanlife statuary, and the aspirational scale of Olympian (or Victorian) motifs, the inside of the courtroom has always been limited in the forms of jurisprudential expression. Inside, we have the elevated bench, the positioning of opposing counsel side by side with the prosecution nearest the jury, who are themselves set apart from the rest and close to one another. And the gallery is present and separate. In L.A. Law, the center aisle, the judge’s bench, and the witness stand become the focal points. This is a lawyer’s show, not a judge show (like Night Court), and the lawyers interact with each other at the crucial juncture where the center aisle crosses the bar of the counsel tables. Witnesses and defendants are necessary for the interaction between the lawyers that goes on before, during, and after the trial. Like Perry Mason, L.A. Law featured important players in the prosecuting role. While initially outside the firm, on more than one occasion they would later be brought into the private sector. On both shows, the private seemed bigger and certainly more effective than the public. 54. Alison Young, Imagining Crime (London: Sage, 1996).

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The Supreme Court’s chamber, although built during the Depression, reflects a Victorian grandeur that was more stylish at least fifty years prior to when it was built. Architecturally, and now with enduring significance, the Victorian is a familiar expression of law. Like the quill pen and the flower script in which the Declaration of Independence was drafted, the Victorian courtroom has a special traditional place. But the contemporary courtrooms to which we have had so much video access of late are not the Victorian courtrooms of law’s traditional shrines. Not surprisingly, they are the more austere, functional courtrooms of our newer cities. In a twist on the old “double institutionalization” thesis, the courtrooms of the modern cities are getting a special place in the cultural iconography because, at least in part, they have offered more ready access to the video camera. The courtroom of L.A. Law, on the other hand, is inevitably an L.A. courtroom. That is, it is in the style of the public spaces of modern American buildings, particularly of the Sunbelt variety. The courtroom is without ornamentation, it is small, and it is efficient. It is not the L.A. of Malibu or Baywatch with their sense of the Promised Land of sun, surf, and beautiful bodies. Nor is it the L.A. of swimming pools and opulent vehicles. The courtroom is from a pared-down L.A., a society where the public has had much less attention than the private and the societal far less cachet than the personal. Rather than the Victorian architecture of public buildings, which even in California reflected the grandeur of collective aspirations, the court buildings of L.A. represent the sense that the courts deal with others, and for the most part there is nothing particularly grand about their business or how it is handled. On television, L.A. interiors run to glitz while the built environments in the East (New York, Boston, and Philadelphia) are generally places of grit and grunge. This is somewhat paradoxical. In popular culture, and even on the big screen, L.A. and its neighborhoods are often depicted as places of riots, gangs, and drive-by shootings. Before and after L.A. Law, Stephen Bochco hung out in the graffiti-covered precincts of New York. David Kelley, a Boston lawyer who went to Hollywood to write for L.A. Law, previewed The Practice, described by U.S. News and World Report, on March 3, 1997, as “a grunge update of L.A. Law.”55 In The Practice, a newer legal realism continued to rely on the penetrations of society in the East and update the package within which Hollywood presents law. 55. ABC produced thirteen episodes and aired six in the spring of 1997 in the NYPD Blue time slot. The show stars Dylan McDermott as Bobby Donnell, the head of a small Boston law firm who must fight eviction from his low-rent office at the same time that he fights for his clients. The show features the traditional struggle of the underdog against the forces of power and influence, and relies on the storybook rewards of lives saved and trusts kept over the financial rewards more central to McKenzie, Brackman, Chaney, & Kuzak.

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Video Jurisprudence Realism is the new paradigm for legal authority. Christine Harrington and I have sought to bring familiarity to this form of authority, much as realists did in establishing their hegemony on a foundation of legal formalism. We proposed that the penetration of law comes through its familiarity. The traditional forms by which law expresses itself, the temples of justice, are expressions of a society able to rely on class relations. But, the modern corporation rules through bureaucracy and process instead of the traditional symbols of power. The result is that courts have different meaning, and boardrooms are linked to the authority of law. For many students of law in society, law has been treated as an alien realm that is difficult to penetrate for the average citizen. The authors of the text Before the Law: An Introduction to the Legal Process take their title from the Czech novelist and lawyer Franz Kafka. They begin the presentation of materials with excerpts from The Trial, Kafka’s 1937 novel. Before the law stands a doorkeeper on guard. To this doorkeeper there comes a man from the country who begs for admittance to the Law. But the doorkeeper says that he cannot admit the man at the moment. Elements of the Kafkaesque scene of standing before the law are characteristic of some aspects of the TV courtroom. But, for the most part the fact of being in the presence of a judge distinguishes the United States. This is where the business of justice is done, as opposed to Joseph K.’s odyssey in the darkened halls and forbidding architectural landscape of The Trial. The judge presiding sets the American TV courtroom apart from alienated image produced by the great Czech writer. The American scene, so widely understood through it dissemination in American popular culture, stands apart from that of the influential visionary for a generation of law’s critics. For instance, the courtrooms on L.A. Law served for both criminal and civil cases. Here, the reality of the show runs against tradition. Where the great television and most of the movie dramas about law have been crime dramas, L.A. Law shifted attention to the law of divorce, personnel, and corporate power. This is also the law of The People’s Court, the Thomas and Bork hearings, and Jones v. Clinton. The show was representative of the full range of law or of social life, but it may indeed be an indication of the constitutive power of television that the presentation of this slice of life in law caused us to see law differently, culturally. Indeed, it is easy to see why it made law more interesting than a visit to Uncle Joe’s or Aunt Mary’s law office.

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Commentary about television has problematized reality at the same time that it has heralded the significance of the medium for serious students of culture. John Fiske says a TV show is “‘realistic’ not because it reproduces reality, which it clearly does not, but because it reproduces the dominant sense of reality.”56 Driven by markets to touch base with more than a few senses of reality, television refines, incorporates, and spins reality according to a subset of forces in the society. For Fiske, television realism is middle-class focused, and with regard to radical themes, he points out how TV “incorporates” cultural change, such as respect for diversity with regard to race and gender.57 This incorporation is inevitably a moderating force, since it is incorporation “into” something that is dominant. While the dominant form changes somewhat, the incorporated form necessarily changes more. L.A. Law was clearly a vehicle for this sort of incorporation, and as with Law and Order, the courtroom was just one of the places where law appeared. In matters of law, like in other social forms (such as entertainment and education), patterns of behavior are shared across professional boundaries. Ways of doing things in one area are often reflected in others. In this sense, some of the law on TV becomes the law in our lives. It may be that the video jurisprudence of one season is the legal practice of the next. Commentary in The New York Times concluded that post-O. J. trials are responding not to laws made in the traditional hierarchical fashion but to law made by the commentators and reactions to the verdicts from the public. 58 And, U.S. News and World Report, in discussing the prospects for a descendant of L.A. Law, The Practice, suggests that in the wake of the O. J. verdict, it is daring to ask the audience to identify with a defense lawyer (presumably the magazine was worried about the reactions of its white audience). Commenting on the relationship of form in law to form in another area of social life, David Bordwell, Janet Staiger, and Kristin Thompson describe the psychotherapeutic films of the 1940s such as Spellbound and Shadow of a Doubt as vulgarizations of Freudian theory. This is because they copy the traditions of the crime drama with their interrogations and often-spontaneous revelations on the witness stand.59 In current TV court dramas, those revelations have for the most part been replaced by characterizations in which the power of law is less apt to provide the basis for a therapeutic catharsis. On L.A. Law, nearly every episode juxtaposed the courtroom—lacking in 56. John Fiske, Television Culture (New York: Routledge, 1987), 21. 57. Ibid., 38–39. 58. May 25, 1997. 59. David Bordwell, Janet Staiger, and Kristin Thompson, The Classical Hollywood Cinema: Film Style and Mode of Production to 1960 (New York: Columbia University Press, 1985).

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artifice, spare and businesslike in character—with the relative opulence of the law offices and the luncheon venues to which the attorneys were inevitably drawn. In the second part of the premier episode screened in September of 1986, the Mexican American attorney Victor Sifuentes, played by Jimmy Smits, is sought by McKenzie Brackman as a new attorney. He is taken to a very expensive lunch, where much is made of the unfamiliar surroundings and the use of the restaurant’s opulence as an inducement to come to the firm. To some extent, this positioning links the activity in the courtrooms with law’s traditional venues and distinguishes them from the more integrated spaces of the new legal practice where law is done between golf swings, over bites of salad, or while getting the car out of valet parking. The courtroom in L.A. Law is subordinate to the boardroom. Recurring in the opening of each episode, the long table around which attorneys gather to discuss business becomes the unifying frame for the show. This form is more common on L.A. Law than the courtroom, and it serves as a prominent and realistic expression of the corporate core of modern law. In the boardroom, like the courtroom, participants have places that relate to status. In one show, Ann Kelsey fights with a new attorney over the senior lawyer’s traditional place at the table. Of course, Leland McKenzie, the head of the firm, is at the head of the table. With its glass walls, the boardroom still looks out to the firm, where the staff can see but not hear and the special place of those allowed to participate is affirmed. This affirmation is through the transparency of the walls, and it works as well as any leather-covered doors did in the past. Against this manifestation of realism, the courtroom plays the role of a formal setting that allows contemporary authority to be embedded in the enthusiasms of realisms where everyone thinks they are part of the action. Video jurisprudence provides an opportunity to examine the expressions of the realist form. Dianne L. Brooks, in her discussion of law in soap operas, distinguishes between the realism where “the trial proceedings, the miseen-scene etc. is seemingly true-to-life,” and the “legal realist” movement.60 Perhaps there is a relationship. Realism on TV does not come from courts. Other, usually successful, television shows are a major influence. In this case the prominence of the richly detailed emergency room in ER has some impact on representations across shows and across professions.61 An aspect of this realism may derive from the expansion of the soap opera form into prime-time television. Although characterized by melodrama, soap operas 60. Dianne L. Brooks, The Law of Daytime: Television Soap Operas and Legal Narratives, unpublished manuscript. 61. There is even considerable difference between Chicago Hope and ER with reference to the levels of detail portrayed in the room.

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also feature greater reality in some respects than did traditional prime-time television, especially the pervasive situation comedy.62 For instance, in soaps the extreme close-up is a feature, showing the details of struggle in the faces of the actors. And, there are important legal narratives, often highlighting both the melodrama and the emotional intimacy of the form. Brooks mentions rape, domestic violence, incest, pornography, and the killing of prostitutes. As the depiction of the courtroom drama shifts from the traditional distance that is still characteristic of L.A. Law to the gritty close-ups of Law & Order63 and The Practice, there is a sense that this hallowed legal space can stand a more complete picture. In America, justice is being rationalized and bureaucratized at nearly every level of the legal process, including within its traditional center, the court. While many legal scholars continue to operate as if reasoned adjudication of cases is the order of the day by focusing their attention on questions of justice in appellate opinions, the most characteristic developments for the everyday application of law are the embrace of efficiency and the promulgation of a doctrine of process. These facets of modern justice, whether they are evident in friendlier courts, such as the one in Manhattan, or “alternatives,” such as “renta-judge” or Endispute, minimize claims on justice in favor of improved process. In either case, we can see a shift in the face of American justice. In place of the lawgiver and the blindfolded maiden holding the scales, we have computer systems frameworks and video monitors. This is what is going on in courts. The sociologists of law, Wolff Heydebrand and Carol Seron, concluded their discussion of the increasing rationalization of justice with the observation that “. . . what is squeezed out of the traditional form of law is a locale for a moral vision and political debate.”64 In processing cases, the courts nurture an environment dominated by technical expertise with few links to the normative practices of the culture generally. Although we hear appeals to the grand tradition in show cases from O. J. Simpson to Scooter Libby, they ring hollow in a system where informality and efficiency are the operative concepts.65 62. See Brooks, The Law of Daytime; Julie D’Acci, Defining Women: Television and the Case of “Cagney and Lacey” (Chapel Hill: University of North Carolina Press, 1994). 63. With its attention to the day progressing and vivid close-ups, Law & Order combines the emotional intensity of daytime television with production values more characteristic of prime time. In this show, the courtroom takes second place to the pores on a witness’s face or the sweat beading on counsel’s forehead. And, in another concession to the realities of justice, the “Parts” of the New York City trial court system come to the screen as venues with no architectural distinction. They are dirty, crowded versions of L.A. courtrooms. In this regard, the literary form is far more prominent than was the case in L.A. Law, or the O. J. Simpson trial for that matter. 64. Wolf V. Heydebrand and Carroll Seron, Rationalizing Justice, (Albany: State University of New York Press, 1990), 184. 65. See transcript of preliminary hearing, Los Angeles, California, July 6, 1994.

8 C OMMODITY F ORM

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? The logic of the legal form and the logic of the commodity form are one in the same. ISAAC BALBUS

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estern intellectuals have marked their superiority with stories of primitive rituals at least since the contributions of John Locke. The “cargo cults” of the South Pacific put this spin on the Second World War, and allege the superiority of those who waged it. The people of the South Pacific were said to have been so grateful for the planes that arrived during the war bringing exotic supplies that they built runways hoping to draw the cargo planes back. They even placed “decoy” planes on the runways in the hopes that the supply planes would return after the war. Called “cargo cults” by Western observers, these new religions made commodities a central feature of their “worship.”1 Acting in this way, the islanders were thought to have demonstrated the classic signs of naiveté because they believed that their totems would induce the cargo planes to appear. We say that they were mistaken about how to appease the commodity gods, but the centrality of commodities in these cultures is not entirely alien. The commodity form is as deep and compelling in Western law as those amusing cargo cults. When dealing with law in the part of the world that speaks English, we confront forms originating in the economy that are so widespread and basic that they seem natural. A right, a contract, a consumer—these abstractions are similar, yet they can be filled with all sorts of content. Their very pervasiveness makes them particularly hard to discern. The challenge of getting the commodity form right is one that requires inte1. Popularized by Richard Feynman, Surely You’re Joking, Mr. Feynman! (New York: Norton, 1985).

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grating the ideal body of law and the real world of things. The challenge arises from the inversion of important categories and confusion over the relationship between material things and ideas about them. And, even where we are able to see how the capitalist marketplace makes things as diverse as gold and rocking horses interchangeable as commodities, we have trouble seeing the form in law. This discussion of the commodity form as law builds on the philosophical issues in the legal concept of goods. The work goes back in contemporary intellectual history to the 1960s and 1970s when scholars were actively investigating the economic and material foundations of law. In this work, suggested by the quote from Ike Balbus, above, scholars proposed a relationship between commodity culture and form in law. The notion that such a relationship existed was based in Marxism and supported by the political agitation of the age. The relationship between the economy and the political order remains an important jurisprudential matter in spite of the waning of Marxist studies and Marxist states. Indeed, perspectives on law that attend to its economic foundations will be even more significant as basic challenges to the West demand that we understand the character of social life. The profound influence of the economy on all things leads us to the particular focus on the legal ideology of constitutional liberalism.2 The commodity form is at the heart of the relationship between law and things. Legal form poses an epistemological leap that opens new worlds. In a perversion of the cargo cults, the capacity to be exchanged becomes part of the thing that is bought or sold. Its commodity form makes something a product, and law is a foundation.

Goods and Value I began studying law by studying property. This led to an interest in goods.3 Goods in law refer to a form of personal property. This old English legal category organizes a part of the material world in ways that now seem archaic. Etymologically, goods dates from the thirteenth century and includes those inanimate articles of furniture and personal effects that we possess. This is a catchall for tangible personal property. Goods may include financial instruments such as stocks, bonds, and bank notes. And sometimes—always when linked with the related concept of chattel—goods includes livestock. The common law and English legal language are needed to distinguish between 2. Often called simply “neoliberalism.” 3. Christopher B. Gray, ed., The Philosophy of Law: An Encyclopedia (London: Taylor & Francis, 1999).

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possession of live things—those able to move—and simple material things. (This gives us the term livestock.) The distinction between the live and the not live or inanimate also delineates the importance that forms of possession have in constructing the legal category of goods. Chattel, from the French, refers to any species of property, except land, and is the more general reference. Land, as “real” property, indicates the traditional valuation at the heart of this area of English law. Land appears to be the first source of wealth. Goods would come later. Goods raise philosophical questions in law such as why things have value to people and which values deserve to be protected. Political economy develops these questions as value theory, the aspect of economics that calculates demand. Adam Smith made the characteristics that give goods value a basis for Theory of demand. For John Stuart Mill, property in goods was the basis for his case for limited government, because “[n]o quantity of movable goods which a person can acquire by his labor prevents others from acquiring the like by the same means.”4 The philosophical significance beyond economics lies in the social and etymological fact that goods are a physical embodiment of that which is good. In usage made popular by the political theorist Hannah Arendt, life as the highest good becomes a basic evaluative tool. Ownership seems more complex in an age where we acknowledge that the meaning of possession depends on culture. A study by the legal anthropologist Rosemary Coombe treated the artifacts sold by African immigrants on the streets of New York as authentic because of the context of the sale. Even though they are made in China, the goods gain a certain authenticity since Songhay migrants from Niger sell them.5 The legal category depends on the “cultural life” of goods, while political economies and markets constituted by law give goods their commercial significance. And, we know goods in law through disputes over what is included in the category. The protection of trademarks, or rights in a name like Nike or Timberland, has consequences that transcend the issue of who the goods belong to and determine the level of profit. Indeed, where the value of goods depends less on use or inherent quality than on the cultural cachet of the trademark, the legal definition of which goods are to be protected is increasingly important to the meanings things come to have. In the relationships by which law defines goods, we find philosophical work at the center of social policy in such disparate areas as bankruptcy and sumptuary law. Regarding the law on bankruptcy, scholars have noted that “the new corporate finance turns all claimants into ‘stakeholders’ with 4. John Stuart Mill, Principles of Political Economy (New York: The Colonial Press, 1899), 229. 5. Rosemary J. Coombe, The Cultural Life of Intellectual Properties (Durham, NC: Duke University Press, 1995).

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particular but not qualitatively different stakes.”6 Here, the legal inquiry draws from an economic conception of claims. The traditional rehabilitative framework in bankruptcy has its base in a combination of old-fashioned morality and popular psychology, which drew on status relationships. The new economic models minimize status relationships in favor of autonomous actors with qualitatively interchangeable “stakes” in the system. The result is an absence from the financial system of old-fashioned morality and a relationship between productive labor and wealth. In the case of sumptuary laws,7 made to restrain luxury or extravagance, they reflect the desire for state regulation of the display and consumption of clothes, furniture, and food. Current inquiry has brought this seemingly archaic area to life and reminded scholars that the regulation of goods reveals action by the state in the constitution of class and other important relations. Although this role for law has become largely invisible, philosophical attention to the regulation of goods leads to consideration of new ways in which law maintains disciplinary authority over our lives. One of these is the psychological in law. In his book Oedipus Lex,8 Peter Goodrich draws our attention to what he calls “Autonomasia” or psychiatric harm and the English home. He offers the story of Attia v. British Gas as an anomalous introduction of psychiatric harm into law; in this case the harm is seeing one’s home and goods burned up. This particular basis for recovery is somewhat anomalous, but, as Goodrich notes, the relevance of at least vernacular psychology to legal understandings of our relationship to all manner of possession has taken center stage in Anglo-American law. Now we recognize the construction of identity at least in part through our life with goods. In constitutional law, we see this relationship in the property rights movement, a powerful conservative attack on the idea that property rights are subordinate to government interests. Standing against the interests of the government are land and homeowners, often ennobled by being positioned between the government or corporate bulldozers and the family home or the picturesque plot on which it is to be built. Here the predicament of the individual adds rhetorical power to the case. This was true in Lucas v. South Carolina Coastal Commission and Kelo v. New London (2003).

6. Donald R. Korobkin, “Rehabilitating Values: A Jurisprudence of Bankruptcy,” Columbia Law Review 91, 1991, 717. 7. Alan Hunt, Governance of the Consuming Passions: A History of Sumptuary Regulation (London: Macmillan, 1994). 8. Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (Berkeley: University of California Press, 1995), 189.

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Howard Horwitz, in By the Law of Nature: Form and Value in NineteenthCentury America, depicted “forms of economic practice and conceptions of economic value” in nineteenth-century texts where aesthetic artifacts were looked at “in conjunction with economic and political documents” in order to discover conceptions of value and identity.9 In the notion of value as representation in the nineteenth century, we get a glimpse of a contrast with our current propensity, as suggested in the previous chapter, to see value as relational. This becomes the logic of a liberal framework in which we can trace the form of law. The logic occludes the foundation and prevents us from seeing our material life as a choice. Or, as Horwitz says, “It seems wrong to think of the culture you live in as the object of your affections . . . you don’t like it or dislike it, you exist in it.” Horwitz notes, working in the constitutive tradition, that the interesting thing about the texts as sources of cultural value is that they are positioned within a system of representation and that they produce objects of approval and disapproval that are “more important than any attitude one might imagine one self to have toward” the object.10 With consumer goods, the form of law illuminates the form in law. Following the lead of colleagues in current literary criticism, in particular the pragmatic movement in literature, we move from goods as an issue in legal philosophy to the construction of nature and its law. Commenting on how we understand literature, scholars such as Horwitz and Walter Benn Michaels have drawn attention to “forms of economic practice” that set value in aesthetics as well as in the market. From there, we investigate work on the laws governing consumption and intellectual property rights. Both of these issues, initially arising “outside” law, have generated a great deal of interest in the legal community. The chapter concludes with my discussion of “commodity form.” The treatment of this form in law is drawn from what feels to me like a luminous period, the early 1970s. Then, when scholar-activists thought about law and politics, there seemed to be few limits on the nature and scope of the inquiry. The limits of politics did set in, but the vision remains suggestive. This part of the discussion concludes that the legal construction of material life must operate at a personal and psychological level. Social historian John Harvey must have been excited near the end of his scholarly journey into the meaning of black dress in society when Quentin Tarantino in Reservoir Dogs gave him his epigraph11 and indirectly his title, 9. Howard Horwitz, By the Law of Nature: Form and Value in Nineteenth-Century America (New York: Oxford University Press, 1991), 62. 10. Ibid., 19. 11. MR PINK: Why can’t we pick out our own color? JOE: I tried that once, it don’t work. You get four guys fighting over who’s gonna be Mr. Black.

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Men in Black.12 Harvey’s inquiry into the meaning of clothes13 is significant for issues of value and representation in law. According to Harvey, because clothes are part of our presentation, their color is not merely “an adjective.” Following Umberto Eco, he suggests the term “undercode” for the way clothes “work through an aggregate of cues and clues, rather than by agreed clear signs.”14 Law is associated with black, as are learning, funerals, and certain avant-garde communities. Harvey cautions us from seeing black as having a permanent meaning even though “the associations of black have been stamped so deep” that it is easy to make this mistake. Black in law was once the color of the cult of the robe.15

Governing Consumption The work of Michel Foucault and “Foucauldian” scholarship, although in decline from its extraordinary influence around 1990, brought the notion of governance into consideration. In the work of Alan Hunt, governance was linked to consumption. This chapter draws on the intellectual energy generated by these poststructuralist endeavors in order to channel it back into more traditional structuralist concerns. One of these is the mutually constitutive relationship between the economy and the law.16 “Governance” as a concept has waned in popularity but still remains capable of energizing the discussion of commodity form. Partisans Alan Hunt and Gary Wickham contributed to discussion about governance in terms of traditional law. They describe governance as “any attempt to control or manage.”17 They hold that the term is a combination of government as in “the rule of a nation state, region or municipal area” and governor “as in the device fitted to machines to regulate their energy intake and hence their

12. John Harvey, Men in Black (Chicago: University of Chicago Press, 1995). 13. “What kind of meaning is the meaning of clothes? That clothes in some sense mean is clear from the difficulties one runs into, as soon as one tries to imagine a choice of clothing that would really have no meaning. Even clothing that says ‘I don’t care what I wear’ does say that, it does not say nothing.” Harvey, Men in Black, 10–11. 14. Ibid., 12. 15. Ibid., 18. 16. Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance (London: Pluto Press, 1994). See also Jeff Malpas and Gary Wickham, “Governance and the World: From Joe DiMaggio to Michel Foucault,” UTS Review 3 (1997): 91–108; Malpas and Wickham, “Governance and Failure: On the Limits of Sociology,” Australia and New Zealand Journal of Sociology 31 (195): 37–50; Gary Wickham, “Governance of Consumption,” in Constructing the New Consumer Society, eds. Pekka Sulkunen et al. (London: Macmillan, 1997). 17. Hunt and Wickham, Foucault and Law, ch. 4.

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performance.”18 We can see governance in all manner of things, from bathrooms and diet to international agreements and domestic economies. The Foucauldian observation is linked in spirit to the generation of speculation that associated authoritarian toilet training with the emergence of Nazi and Fascist regimes. Politics is part of governance. In a limited sense, politics is contests that usually take place within particular techniques of governance. Governance and hence social control understood in this way depends on political challenge. This perspective transcends the bind noted in some work in the sociology of law that seemed challenged in its understanding of how to imagine seemingly conflicting aspects of law, control and resistance, at the same time.19 The contribution of the concept of governance to the study of law in the work of scholars such as Jonathan Simon, David Garland, as well as Hunt, Wickham and Jeff Malpas, has been to expand the realm in which we look for forces constructing social relations. Governance has helped us to appreciate new forces and the reach of social control mechanisms. It makes us aware that control is a process, that it is political, and that it is partial. One of the examples put forth by Gary Wickham and Jeff Malpas in their analysis of governance and failure is the self-governance of the various keys most of us have.20 The authors suggest that in governing our keys, it is quite common to arrange mechanisms of ordering (the key chain or ring), placement (the pocket, the purse), and replacement (the locksmith, the car dealer). Extrapolating from this, we may want to characterize the role of law in our life with the key as a peripheral part of the governing structure. The world of the key is a world of possession and control; the demarcation of what is mine and the sphere or property from which I can exclude others. From this, we get the fact that some keys are “not to be duplicated,” thus making them the ones most costly to misplace.21 And we also get the image of law and regulation bound together at the level of culture and personality. Consumption, understood as part of governance, is evident only when it is being directed or redirected. For Wickham, it is important to avoid defin-

18. Hunt and Wickham, Foucault and Law, 78. 19. Patricia Ewick and Susan S. Silbey, The Common Place of Law: Stories from Everyday Life (Chicago: University of Chicago Press, 1998). 20. Malpas and Wickham, “Governance and Failure,” 41. 21. Malpas and Wickham address the failure of governance as part of the construct and help us to see, by analogy, the extent to which systems of social control are partly successful.

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ing consumption as in opposition to production.22 He argues, instead, that consumption has no “essence” but rather is evident as the subject of regulation or governance. We seldom think of breathing as consumption, unless the air is particularly polluted or rarified. We do think of alcohol perhaps most often in terms of consumption and its excess. One area in which the lack of an essence is evident is in the range of things about which we do think of consumption: food, drink, and other bodily pleasures; sport, entertainment, and sometimes even government when it is packaged as sport and entertainment; housing, particularly when it becomes scarce; and travel when it is similarly a matter of choice. Wickham expands the range of penetrations between society and the individual in his investigation into “the governance of sports consumption.” Here, we also see a relationship between governance and self-control (or lack of it), while suggesting how one might incorporate more traditional legal aspects of governance into seemingly autonomous activities such as the consumption of sport. Various levels of governance are involved in the sports culture: governance of the self, the sports, and the society. Self-governance in sports consumption is a vivid example: These disciplines vary from simply turning on the television at a particular time and sitting in front of it for a few minutes, to queuing for days to obtain a ticket for an event, queuing for hours to get in to an event, putting up with extremes of weather, containing the desire to use a toilet, and submitting to the ordeals of various officialdoms.23 Few of us who read the sort of material in this book engage in the practices of this extreme sporting culture. But there are certainly many who do. In the governance of particular sports, the range of mechanisms is extraordinary. Range is part of the beauty of viewing governance in sport as a devoted fan appreciates it. British citizens do not govern Britain in the way citizens governed ancient Athens, and television-watching Olympics consumers or match-attending soccer consumers are not involved in the governing of the Olympics or of FIFA in the way participants govern frog racing at their local picnic.24 22. Wickham, “Governance of Consumption,” 277. 23. Ibid., 286. 24. Ibid.

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The implications of this point are to draw attention to a separation of consumer from governor. But, given the focus in this book, I want to incorporate a little more penetration between the various levels of governance. In particular, the state governance of particular sports needs to be understood as reaching into the governance of the personal and the social. Other scholars interested in “the consuming passions” bring a range of interests to this catchy phrase, which we have placed at the core of the relationship between law and the material world. George Armelagos, an anthropologist who studied legal ideology through the consumption patterns evident in the chemical makeup of bones, posited changes in social order as a result of consumption patterns in one case dealing with ancient Native American culture, where the corn failed and so too did the governments. Joe Conlin, a fallen Marxist who remained interested in the relationship between food and class, did path-breaking work in food reviews, which always reminded us that eating makes a statement about one’s class status. Judith Butler’s work on pornography reflects the ideological orientation of liberalism and choice as key elements to the defense of porn put forth by erstwhile feminists. Like the liberal Feminist Anti-Censorship Task Force (FACT), 25 Butler’s attack on the radical feminist antipornography movement operates at a level that conflates the ways we know and what we choose to do. Here, commodity form as a key element of any debate on consumption is driven by the notion of individual autonomy in matters of choice. This is the subject of Alan Hunt’s work, Regulating the Consuming Passions. Hunt’s inquiry into the nature of sumptuary law is one of the few sustained studies of consumption in law, at least of the period when the regulation of consumption seemed to be known as such.26

Governing Production Authority over work is part of law’s commodity form.27 In the fall of 1989, a student-initiated strike over budget cuts and tuition increases at the University of Massachusetts, Amherst, raised labor issues. My struggle over responsibility for how I taught became a contest over interpretation in law with impli25. John Brigham, The Constitution of Interests: Beyond the Politics of Rights (New York: New York University Press, 1996), 103–128. 26. Another aspect of the commodity culture is the Jell-O phenomenon described by Marjorie Garber. 27. An earlier version of this section was presented at the “Marxism Now” Conference, University of Massachusetts, Amherst, in December 1989, and the Law and Society annual meeting in Berkeley, California, in June of 1990.

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cations beyond the boundaries of academic work to the form of law. In this context, I examine how law is understood (or read) and how it determines our place in the world.28 There were moments during the strike when authority seemed fluid, and creativity appeared to be a match for coercion. The strike was a time of memorable images, some embedded in geopolitical events, like the repeated assertions by our union president, a Marxist anthropologist, that Massachusetts had become the East Germany of higher education. There were campuswide union rallies. In one, teaching assistants (TAs), organizing under the United Auto Workers, imagined an academic-autoworker version of what a union should look like by singing their interpretation of Solidarity. The strike lasted about a week.29 At the beginning, all faculty members at the university received a memo from the Provost, Richard O’Brien. It read, in part: Students may follow their conscience but faculty are not free to abstain from their responsibilities. I do ask that every faculty member does everything possible to inform students of the consequences of nonattendance at classes and exams, and to be as helpful as possible to students in expressing their concerns. In identifying with both students and faculty, the memo made a distinction crucial to the character of law, a distinction between conscience and responsibility. Conscience is linked to opinion as distinguished from law—which reinforces hierarchy and enforces the commodification of work. Responsibility has an ominous ring for faculty. It says that opinion is circumscribed in its implications. Cleverly, almost insidiously, the web of institutional authority limits choices at the root of politics. In this institutional setting, the provost appeared as the lawgiver. He marshaled the institutional array of “law versus opinion,” the “social basis of rights,” and “the political nature of law.” Law is constituted in opposition to opinion. We saw this in reporting by MTA Today, “the official publication of the Massachusetts Teachers Association.” The following quote appears in a story on the strike: 28. Alan Hunt once referred to my project as Whiggish. Americans seldom get that degree of class analysis. I think he meant ‘liberal,’ though the Victorian quality of Hunt’s remark reminds me of Peter Pan, whose refusal to grow up bore a striking resemblance to many of the characters in the strike. 29. The activism on campus produced “moments of madness,” as Aristide Zolberg described a similar time in 1971. The madness was juxtaposed to a conception of authority that was supposed to make sense. “Moments of Madness: Politics as Art,” APSA, Chicago, 1971.

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Although to say that the cuts are “robbing” these young people of the future sounds like an empty cliché, it nevertheless describes the perception among the students that those with power and position on Beacon Hill are taking something very precious away from them.30 Here, the union accepted the authority of management at the same time that it tried to challenge its choices. This sort of thinking appears in the legal academy as the realist/formalist dichotomy.31 In the social sciences, we see it where political jurisprudence is distinguished from “mechanical.”32 In both instances, the distinction limits public claims on institutional sources of power. The dichotomy is a tool of the powerful.33 The object of the strike was to stop normal teaching. 34 The method was to picket the main classroom buildings in order to keep students away and give them time to ref lect and agitate while contributing to that “mad” feeling of turmoil. On the first day of the strike, we had beautiful weather, and it was possible to conduct classes outside. On the second day, we were not so lucky. We met in the student union building. This contributed to the chaos of the strike but did little to confront the inequities affecting striking students. On the third day, I tried something new. I had once heard that the dons at Oxford are so wrapped up in their intel-

30. Michael J. Kryzanek, MTA Today, November 17, 1989, 9. 31. See Gary Peller, “The Metaphysics of American Law,” California Law Review 73: 1151 (1985). 32. John Brigham and Christine B. Harrington, “Realism and Its Consequences: An Inquiry into Contemporary Sociolegal Research,” International Journal of the Sociology of Law 17 (1989): 41–62. 33. Those in the midst of a political struggle often challenge the distinction between opinion and law. Activists are like Staunton Lynd, who has explained a community property right for industrial workers in Allentown, Pennsylvania, and like Sandra Goodman, a student from Northampton, Massachusetts, who has denied the authority of property in pornographic magazines and simply destroyed them. Lynd’s claim is that workers who have invested their lives in a plant, and in the community support that goes with maintaining a workforce, are justified in the exercise of eminent domain to preserve a plant even when management finds it unprofitable. Goodman’s claim confronted property in pornography through direct action. In one case where she pled guilty, she sprayed glue on magazines in a newsstand in Amherst, Massachusetts, in 1988. She was charged in another incident where women threw Christmas ornaments filled with red paint at the same institution. Staunton Lynd, The Fight Against Shutdowns (San Pedro, CA: Singlejack Books, 1982); see Phyllis Farley Rippey, Constitutional Politics: Interpretive Activity in America, PhD Dissertation, University of Massachusetts, Amherst, 1990, 27–48; John Brigham, “The Pornography of Liberalism,” The Legal Studies Forum 14 (1990): 319–329; see also John Brigham, The Constitution of Interests (New York: New York University Press, 1996). 34. A lot was said throughout the community during the strike. My favorite chant was heard on the morning when the weather had turned particularly ugly, and from some pretty bedraggled-looking TAs came the refrain, “We’re wet, we’re mad, Budget Cuts are Bad.” A claim heard on the picket lines during the strike went, “Education is a right, Strike, Strike, Strike.” It interests me that although right does not rhyme with strike, they sound rather better together than some of us who have read a lot of Supreme Court opinions might have thought.

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lectual life that they have been known to lecture to empty halls. I decided to use my classroom in this way, thereby engaging in the teaching function without the inequities. I had two students designated as note takers. Their notes were transcribed and made available to all the students. This was not popular. In fact, it was offensive to those students who asserted a right not to strike, which they termed a right to an education. One, at least, reported my action to the provost. In the class period after the strike, I passed out “Strike Notes” with the revisions in the syllabus explained and the notes from the nearly empty classrooms. I introduced those notes with a comment on the memo by Provost O’Brien. I said that he had made a distinction common in conventional thought about law, the distinction between conscience (or opinion) and duty (or law). In the realm of opinion, we are free, he said. In matters of law, we are not. I said in my notes that I thought the provost’s distinction was weak by the standards of contemporary jurisprudence, although perfectly common in college administration.35 The week after the strike, I got a letter from the provost. It read in part: I have received a complaint asserting that you have failed to offer at least one of your assigned classes, presumably in sympathy with the boycotting action of the undergraduates. If this complaint is inaccurate I would be grateful if you would inform me immediately. To one, like myself, who had grown up in an age of due process, the memo seemed wrong and threatening. It turned out that only three faculty out of at least 150 who were actively supporting the strike got letters: Sam Bowles in Economics, Ann Ferguson in Philosophy, and me. Over a two-week period, as we learned each other’s identity, I credited the provost with having inducted me, at least for a time, into the pantheon of campus radicals.36 35. An editorial cartoon in the UMass student newspaper addressed “Four Stupid Reasons Not to Strike”: 1. My friends will think I’m turning into a hippie. 2. I just don’t have the time. 3. I’ll screw up my whole semester. 4. What difference can skipping classes do? In each case the concern had to do with attitude, as in the first, or the limits on action as in the last three ideas. While the attitudes of others are real enough, the law crunches when responsibility comes down on opinion—it gives a bite to the limits on action—making the ideological real. 36. Even off campus, Professor Bertell Ollman of New York University, who gained fame and brought a censure on the University of Maryland for denying him a position as chair of the Politics Department because he is a Marxist, gave me a warm comradely hug on the street in New York City and told me that if I lost my job he would be glad to give me one at Maryland when he got his position settled.

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Returning to the distinction between law and opinion in the context of institutional authority: I not only supported the strike but I believed that it was the best thing that had happened on the campus in years and one of the better expressions of political activity I’d seen on American campuses since the 1960s. The provost expected to speak for the law, but in the case of defining what constituted strike-related activity, I trusted that contemporary legal scholarship had made things more complex than that. The memo I passed out following the strike read in part: From what we have studied and the way we have come to understand the Constitution, the distinction between opinion and law does not serve us very well. That is, this distinction causes us to fail to see the way opinion works in law and it leads to confusion about the nature of legal authority. Specifically, with regard to the legal obligations of faculty, we heard often during the strike that faculty couldn’t strike because of the law. The result of such statements was often to preclude discussion of the range of actions open to faculty that could be interpreted as within “the law” and a failure to see the problems with enforcement of “the law” even as interpreted most rigidly. To his credit, John Cole, President of the Faculty Union, although acknowledging a “legal” constraint, gave very effective support to the strike. As a matter of social life, the law is interpreted in the context of its use; and during the week and a half of class before Thanksgiving we had a chance to look at the process of interpretation with regard to the constitutional foundations for a right to education. The difficulty we encountered limits the consequence of the claim that “Education is a Right” as chanted during the Strike [sic]. But, the limitation is far smaller and less significant than conventionally thought. In fact, the more we learn about the Constitution the more we see the contributions our interpretations can make to the society it constitutes. I was quite attentive to institutional considerations at the time. Then, as now, I took them to be relevant to the determination of “the law.” I had used my institutional obligation/opportunity to explore the meaning of law, just as I had earlier explored various pedagogical responses to the teaching opportunity the strike afforded. The provost was managing. In this sense, his statements had marked similarities to the practice in English law of “reading the Riot Act.” This practice is described by Peter Goodrich in a book knowingly titled Reading the Law, as derived from the stipulation in the Riot Act of 1714 that a particular form of wording contained in the act was “to be publicly pro-

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claimed . . . in front of riotous assemblies.”37 Reading in this sense is the sort of thing language philosophers call a speech act and that Goodrich describes as an exercise of power. The power was in the practice and in the consequences—those who had been read the Riot Act but failed to disperse after an hour were considered guilty of a capital felony and liable to summary execution.38 In a book I wrote during the period I concluded with the idea that “[t]he traditions of constitutional discourse, constitutional thought, and constitutional practice are matters with social meaning that may be arrayed against the interpretive claims of those occupying the seats of power.”39 I still believe that to be true. The struggle over what constitutes classroom teaching and what constitutes support for a strike is a political one that may be circumscribed by the institutional setting. The provost at UMass had certain advantages in putting forth his interpretation. News people generally turn to administrators or their spokespersons when seeking to get an “institutional response,” and an institutional response may be preferred over an individual one, at least in a volatile situation. Various institutional arrangements determine “the scope of the conflict.”40 Here, institutional influences operate at the semiotic level to determine what makes sense and what is possible even before options can be explored. Most dramatically, in the strike situation, there was the union movement. What I had not understood at the time, and only began to learn as opinion formation was taking place, was the way in which progressives in the faculty union had been transformed by the negotiation process. One of my colleagues, a conservative Marxist in the Sociology Department and a member of the union negotiating committee, stopped me in the elevator and said, “You know, John, you had better be careful.” After my expression of surprise, he proceeded to tell me that if “Management” had not been so slow in negotiating the new contract, they could have fired me. In a fine example of narrowed focus due to collective bargaining, I was told that because the administration had not responded to issues on the table, they had not yet received from the union the right to summary dismissal for violations of contractual obligations. That this may not have been good for faculty prerogatives and traditional faculty governance was becoming evident to me.

37. Peter Goodrich, Reading the Law: A Critical Introduction to Legal Method and Techniques (Oxford: Blackwell, 1986,), v. 38. John Brigham, Property and the Politics of Entitlement (Philadelphia: Temple University Press, 1990), 17. 39. Ibid., 188. 40. E.E. Schattschneider, A Semisovereign People (Hinsdale, IL: Dryden Press, 1960).

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Yet, there is material suggesting we view the contemporary configuration of labor as limited in many respects with regard to the law. Trade unionism was once widely perceived as a threat to governmental definitions of law. Judges in the Gilded Age and early twentieth century frequently acted in response to fear that workers placed themselves above the law.41 From my colleague, I might be treading in an area of “management rights.” An example of this in our contract was: “The administration retains and reserves to itself all rights, powers, privileges, duties, responsibilities and authority conferred upon and invested in it by law.” For Arthur Goldberg, the labor lawyer who became a Supreme Court justice for a short time in the 1960s, management rights were there to preserve order and maintain “. . . a clear procedural line drawn: the company directs and the union grieves when it objects.”42 The authors of Management Rights: A Legal and Arbitral Analysis held that “[n]o area of labor-management relations evokes so much emotion and controversy as does ‘management rights.’”43 This turns out to have been a good place to consider how power is realized. Another place, this time more material, was a conference called “Marxism Now” that took place in the fall of 1989 on the University of Massachusetts, Amherst, campus. The conference brought together over a thousand Marxist intellectuals committed to the idea that there was something worth preserving, something worth identifying with in Marx. The participants were mostly cultural Marxists with a lineage to the explorations of consciousness identified with radical psychotherapists like Jung and Lacan, and culture critics like Barthes and Benjamin. The gathering was a physical triumph—there were many beautiful and intense people gathered on the Amherst campus. This “outside influence,” with its evocation of the urban centers of New York City and Boston, introduced into the campus a kind of cultural authority. My position against the university administration went from being an isolated act to something that felt like a “movement.”44 The presence of sympathetic outsiders seemed to evoke a cultural potential not evident in the institutional or union context. At times the gathering seemed to be so compelling that administrators, whose ideological focus generally ran to pretty mainstream politics, were jostling each other to address the Marxists. 41. See William E. Forbath, Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991). 42. “Management’s Reserved Rights: A Labor View,” Proceedings of the 9th Annual Meeting of the National Arbitration Association (Washington, DC: BNA Books, 1956), 118. 43. Marvin Hill and Anthony Sinicropi, Management Rights: A Legal and Arbitral Analysis (Washington, DC: Bureau of National Affairs, 1986), 1. 44. “Alice’s Restaurant.”

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In my presentation, I had said that I felt like Peter Pan. This idea occurred to me because Amy Bartholomew, the organizer of our session, began our discussion by reminding us that Marx had a low opinion of rights. To Marx, rights were “pretty little googaas.”45 Our session addressed Marx’s dismissal of rights as simply part of an ideological superstructure that had meaning only as a reflection of more fundamental economic and social issues. To us, the structure or law is worth considering as a realm with at least a modicum of “autonomy”—for instance, its own institutional structures and requirements were worth our attention as political possibilities. I also felt like Peter Pan because I had been living in Amherst for over a decade after graduate school in Madison, Wisconsin, and undergraduate study at Berkeley. Law in struggle, or really law in society, is grounded in communities of interpretation that define authority even as we speak. The project is linked to the analysis of constitutive law developed with Christine B. Harrington.46 I distinguish this position from a related orientation that draws its idea of power from Michel Foucault.47 It is important that the meaning of rights be contested, as well as the institutional life of that meaning. The guiding premise—my political epistemology—is that both conception and contest should take place in institutions or sites.48 In this example, the university as an organization in which authority is politicized, the definition of the entitlement would be determined by the weight of opinion. In my romantic and protected campus environment, my students began reporting my “plight” in the student newspaper. They began interviewing my colleagues; one former president of the faculty union, a lawyer, was willing to state publicly that I had not violated the strike policy. Good colleagues, some of whom had vivid images of the McCarthy period from early in their academic careers, expressed concern. In that regard, anywhere people are organizing for democratic transformation, the appeal for support is an appeal to people who know something about law to use their authority for democratic purposes. Whether students, staff, or faculty at our campuses, or workers somewhere else, the call for support is a call to lend something 45. “Should a Marxist believe in Marx on Rights,” Rethinking Marxism Conference, Amherst, Massachusetts, December 1989. 46. Brigham and Harrington, “Realism and Its Consequences.” 47. Austin Sarat, “‘. . . The Law is all Over’: Power, Resistance, and the Legal Consciousness of the Welfare Poor,” Yale Journal of Law & Humanities 2 (1990): 343. 48. Election districts are, of course, a material dimension of law that determine political opportunities. And, districts affect such fundamental matters as the fact that if you move, your representative changes and you generally have to reestablish your eligibility to vote. There are other aspects of districting in America, such as the Electoral College or the fact that there are two senators for a state, no matter how big it is.

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most of us did not have twenty years ago, for one reason or another; it is a call for interpretive authority.49 Consequently, in contesting the right to strike one is reminded of some semiotic insights. Certainly, as Peter Goodrich has written, “Where it is a question of institutional existence the issue is not who you are but where you are.”50 But, the CEO is not the only one that matters, and before undergoing the “geographical” task of “finding ourselves” and potentially prematurely mapping the spaces of the law, it may be more exciting to perform in the aesthetic space that institutions provide. It may be good to have a show and avoid conceding institutional position by not allowing it to be embedded in talk about law and the institution. In performance, we should experience the complexity of the law more fully.

Property and Commodity Form In Contested Culture: The Image, the Voice, and the Law,51 Jane M. Gaines pays a good deal of attention to the commodity form. Her dedication is to Richard Dyer, and her first cite is to Das Kapital on the commodity tie-up as epitomizing commodity form.52 For Gaines, “merchandizing is based on the structure of the limited term license, which was perfected in the 30s.” Rosemary Coombe’s work informed a generation of interpretive scholars who had been on the margins of a law-and-society approach, and emerged in book form as The Cultural Life of Intellectual Property: Authorship, Appropriation, and the Law.53 In this collection, Coombe draws together writing illuminating the tension between the contingencies identified in postmodernity and the effort to constrain in the laws of property, particularly intellectual property. She concludes, in discussing “An Ethics of Contingency,” that 49. Illegal America: The Catalogue, EXIT ART, 578 Broadway, New York City, March 3–April 7, 1990. The exhibit was described as presenting “work by artists who manipulate illegality as a discourse in art.” The material included the Guerrilla Art Action Group’s People’s Flag Show from 1970, the transformation of an abandoned pier into a “deconstructionist cathedral,” projection by one of the artists of a swastika onto the side of the South African Embassy in London, and things like that. Rebecca Howland’s poster for Colab’s “Real Estate Show” dealt with gentrification on the Lower East Side. Umbrella 5, no. 2 (March 1982). 50. Pro Persona Mori (To die for one’s mask). An introspective of the work of David Walliker; text by Dr. Peter Goodrich, for Galleri Enkehuset, 1989. 51. Jane M. Gaines, Contested Culture: The Image, the Voice and the Law (Chapel Hill: University of North Carolina Press, 1991). 52. Ibid., xiii. 53. Rosemary Coombe, The Cultural Life of Intellectual Property: Authorship, Appropriation, and the Law (Durham, NC: Duke University Press, 1998).

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A truly dialogic democracy might be one in which we respect a prohibition on the commodification of some signifiers as commodities, to the extent that recognizing authorial possession of the signs of alterity may well suppress the ability of others to articulate social identity. Here, Coombe would have the first inhabitants of North America develop “less mythical identities” and “more audible subjectivities.”54 And, they would be assisted by the denial of protection for signs and signification by which “[t]he stereotyped representation is more visible than their own social existence.”55 Copyright protections for logos like that of the Cleveland Indians baseball team or Walt Disney’s movie Pocahontas make this difficult. In a volume produced for the Advisory Committee for the Conference on the Global Dimensions of Intellectual Property Rights in Science and Technology, by the United States National Research Council, there was, not surprisingly, a sense of widespread interest in intellectual property rights or IPRs.56 Part of this interest is fueled by the controversy over whether IPRs catalyze innovation, beneficially influencing the economic future of companies and nations, or are economically inefficient and exploitative as well as being detrimental to the development of emerging nations. Further debate involves whether right is even the appropriate concept to cover the government grants to exclusive use for some period of time and with consideration of the public interest. The legal history behind the protection of innovation begins in the fourteenth century with regard to Anglo-American law. Here, English monarchs wishing to encourage foreign craftspeople to come to the country granted protection. It usually lasted only for 14 years or the time it took to train two apprentices. Because the value of intellectual property in drugs, software, and electronic technology has been so great, institutions, from multinational corporations to universities, have been paying close attention to developments in this area for years. They have been influential in designating unauthorized use as piracy. These issues are debated at the negotiations for the General Agreement on Tariffs and Trade (GATT), with developing countries observing that strict laws in this area are a modern form of imperialism. As an outgrowth of the intellectual ferment of the 1960s and early 1970s, a number of scholars, some still active in legal studies, offered work on the commodity form. All but forgotten, yet quite wonderful, that work by Isaac Balbus, Pat O’Malley, and Adelaide Villmoare is the subject of this conclud54. Ibid., 297. 55. Ibid., 288. 56. National Research Council, 1993.

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ing section of the chapter. In response to David Trubek’s criticism of his book The Dialectics of Legal Repression,57 Balbus published the essay “Commodity Form and Legal Form: An Essay on the ‘Relative Autonomy’ of the Law.”58 This work expressed the jurisprudence of critique that emerged from 1960s radicalism. The author called his essay an autocritique of his earlier work, and suggested that rather than respond to Trubek, scholars might read all three works and figure out the relationship between them. Initially it is useful to elaborate the Balbus thesis on commodity form as a way to construct this theoretical position and perhaps suggest its relevance. His analysis of commodities and their relationship to law entails a simultaneous rejection of both an instrumentalist or reductionist approach—and a formalist approach. Balbus takes this step because both assert “an absolute, unqualified autonomy of the legal order from this society.”59 Although this quest for autonomy has preoccupied jurisprudence for two hundred years, Balbus says that “. . . the assumption that law must be judged autonomous to the extent that it functions and develops independently of the will of extralegal social actors”60 is ill conceived and the wrong starting point. The proper starting point in response to the issue of autonomy would address the issue of whether “law is autonomous from the capitalist system of which these actors are the agents.”61 The point of the essay is to establish that, because law is autonomous from the will of the actors, it cannot be autonomous from the system. The link and foundation is the logic of the commodity form, the description of which is drawn from the first chapter of volume I of Capital. This logic is that of a mysterious and contradictory reality.62 A commodity is a use value and an exchange value. Money allows products to assume a formal identity, and in this sense, according to Marx, they can become “. . . citizens of that world [of commodities].”63 In capitalism, exchange value takes over from use value. A vivid part of this story is “the fetishism of commodities,” in which the link between commodities and their human origins is masked and the commodities themselves take

57. Isaac Balbus, The Dialectics of Legal Repression (New York: The Russell Sage Foundation, 1972). 58. Isaac Balbus, “Commodity Form and Legal Form: An Essay on the ‘Relative Autonomy’ of Law,” Law and Society Review 11 (1977): 571–588. 59. Elaborating, Balbus adds, “. . . which denies that the legal order possesses any autonomy from the demands imposed on it by actors of the capitalist society in which it is embedded. . . .” Balbus, “Commodity Form,” 571. 60. Ibid., 572. 61. Ibid. 62. Ibid., 573. 63. Karl Marx, Capital, vol. 1 (New York: International, 1967), 63.

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on animate qualities.64 In this respect, they often dominate the people who make them.65 Balbus proposed that the logic of legal form, which is relatively undeveloped in Marx, has the same qualities as the logic of commodity form. As products take on the abstract form of commodities, so too do people take on a subjective equality as citizens. There can be confusion between the forms, and of course sometimes the social or legal form masks the commodity form. I am reminded here of a comment holding that “Hollywood is not a family drawn closer by giving—it is a marketplace disguised as a family.”66 Formality as an aspect of law appeared not only in Marx but also in the work of Max Weber, and, indeed, throughout the 1970s, interest in Weber was driven by the desire to amplify the ideological and formal aspects left underdeveloped in Marx. The commodification of sport is a good example of the phenomenon, and indicates how we have revised our perceptions of athletics under the power of marketing to reconceptualize an activity. It is widely thought, and posited in David Halberstam’s book Playing for Keeps: Michael Jordan and the World He Made,67 that Commissioner David Stern’s success in transforming the National Basketball Association (NBA) from a sport that was threatened with the loss of an audience, as its percentage of white players decreased, to a successful entertainment giant with the most highly marketable athletes in the world, involved the capacity to sell the players as well as the game through identification with products. Similarly, the Super Bowl, as the culmination of the National Football League (NFL) season in the United States, is more widely discussed as a spectacle that sells products, a spectacle rather than simply a compelling football game or sporting event. The process is incremental. It requires the unification of the putatively competing franchises into an entity capable of compelling coherent action from its owners even when they are faced with a capacity to sell their image on the open market. In Australia in the fall of 1998, the Australian (Rules) Football League faced a crisis when some of its more powerful teams signed contracts with Citibank Visa to issue “rewards-based football credit cards” 64. Balbus says “living, human powers”; “Commodity Form,” 574. 65. “Human life under a capitalist mode of production becomes dominated by the passion to possess the commodity’s living power. . . .” Ibid., 575. 66. Tad Friend, “The Perfect Gift,” The New Yorker, December 21, 1998. The disguise of family became very familiar in the 2008 U.S. presidential election where images of aging parents and adorable children were wielded whenever possible. 67. David Halberstam, Playing for Keeps: Michael Jordan and the World He Made (New York: Random House, 1999). This book appears to have been scheduled to be published coincidentally with the resignation of Michael Jordan from basketball.

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in opposition to the league’s effort to make a comprehensive arrangement.68 In violation of a marketing agreement that sets the league as a whole as the bargaining agent, individual arrangements for Visa cards threaten television rights and the sale of team goods. In the American NFL, a crisis arose in the 1990s over the decision by Dallas Cowboys owner Jerry Jones to feature the Nike swoosh on team clothing in violation of the rules of the NFL. These examples point to the construction of a coherent commodity that has consequences in the marketplace. The value placed on a commodity is the social focus that masks the interrelationship between commodity form and legal form. Like the often difficult-to-perceive connection between commodity form and individual consumption, the relationship between the commodity form and the legal form is a social process, albeit a generally overlooked one. In individual circumstances, the process involves the tension between identity as a consumer and identity as a person. In many instances, the person reconstructs him or herself as a consumer in order to function more fully and effectively in a consumer society. Thus, when students demand attention in a class because they are paying good money for their education, their presentation of themselves stands in opposition to traditional characteristics of student life such as collegial commitment to the pursuit of knowledge. In the social relationship between the market and the law, there are many relationships in which the shift from one social activity to a market-based one, as from a sport to entertainment, involves a shift in the legal form that governs, as from the primacy of the laws of competition to the primacy of the laws of compensation. The success of the NBA in the face of the vanishing white basketball player manifests a shift from an activity young people expect to eventually engage in to one that holds out athletes as celebrities first and foremost. More like actors in many respects than like the loyal members of the teams of old, the stories that dominate sport are about free agency and salary caps, about acquisition and loss, not of games but of players. The issue of race surrounds this transformation, particularly in the sport of basketball. One of Halberstam’s themes is the victory of commodification over racism. But this victory is only partial. There is plenty of commodification that is racially suspect.69 Professional sports are not “simply” commodities; but to the extent that it has changed, the game reflects this commodity culture in law.

68. Stephen Linnell, “Four Clubs Break with AFL over Marketing Deals,” The Age, March 24, 1998. 69. For a discussion of situations, particularly in the black community, where the value of goods depends less on use value and inherent quality but on status codes derived from the names of teams and protected in law, see Regina Austin, “Black Consumption: A Nation of Thieves,” Utah Law Review (1994): 147.

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In an interesting play on our own insecurities, the “cargo cults” of the South Pacific have become a widely recognized parody of consumption in industrial societies. The parody serves as a reflection on the ideological governance of our condition. At the hands of Deborah Bird Rose, an Americantrained anthropologist who has lived with and studied Australian aborigines, the cults become a basis for understanding Australian consciousness. In her remarkable essay “Ned Kelly Died for Your Sins,” she juxtaposes aboriginal culture against commodity culture in Western societies and examines the paradoxical manifestations of the commodity culture in the cargo cults of the Western Pacific. These inverted cultural forms become a metaphor for technological devotion that goes unrequited, and it may be here that we are able to see the underside of the commodity form.70

70. See David P. Vandagriff, “WordPerfect, You Stole My Heart and Stomped It Flat,” http://www. abanet.org/LPM/newsletters/net2d, accessed February 24, 1999, in which the cults are equated to WordPerfect users who waited in vain for a new upgrade.

9 G LOBAL L EGAL C ONSTRUCTS

? The global human rights system functions in a variety of particular social spaces. SALLY ENGLE MERRY

T

he Age, a Melbourne, Australia, newspaper, produces a Festival Picnic at Hanging Rock in early March, near the end of the Australian summer. In the late 1990s, my family visited this very Australian place. We hiked the rock, a jagged outcropping in the Victorian countryside made more mystical as the scene of an inquiry into the Australian psyche in a film by Peter Weir. We drank Australian wine and ate Australian delicacies like alligator kabobs, while being entertained by a group called the Fabulous Baker Boys. The band played American oldies from the sixties and seventies. There was none of the “Waltzing Matilda,” no tales of aboriginal struggles, and none of Australia’s convict heritage that one might expect from an Aussie band.1 Far from being exotic to American ears, the music came from American pop culture. It appeared to be quite familiar to the audience, which sang along on most of the ballads. In addition, Australia had just gone through a constitutional convention and was flirting with the notion of a bill of rights and an elected head of state. From an initial interest in the fact of American culture’s pervasiveness in Australia, I came to think of Australia as an instance in the transmutation of American legal forms and a place from which to consider how law gets adopted in places very far from their origin. The inquiry begins with the march of the dominant paradigm in AngloAmerican jurisprudence and its claim to global hegemony. It then turns to 1. We would later hear folk singers Kevin Carmody and Neil Murray evoke an Aussie culture in a benefit concert at the Healesville Sanctuary outside of Melbourne.

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the practice, to social science in jurisprudence, and to language as part of the global phenomenon of law. Included here is a case study suggesting the pervasive power of realism to Anglo-American scholars and the liberal facets of the postmodern critique particularly as applied to globalization. This chapter concludes by addressing critiques of realism and competing versions of what law can mean.

Globalizing Legal Liberalism Law not only constructs politics and materiality, it constructs and reconstructs itself. Presently Anglo-American law is globalizing. One of the traditional sites of law, the nation-state, has been problematized not only from within (as shown in the matter of the occupied territories), but also from without, by the march of globalization. Nations are being transcended and transformed on a number of fronts. Examples abound. Samsung, a Korean company, has major production in Mexico and markets in the United States. Sony, with markets and workers all over the world, directs sales and production from its headquarters in Japan. Slowly, and often with complicity, the nation-state is being superseded.2 In all of this, the “context” for law suffers. It is not absent, but appears to be of diminished salience.3 In 1996, at the height of the enthusiasm for globalization among scholars in the United States, Professor Susan Silbey, who was president of the American Law and Society Association, turned to Theme of globalization a number of times for the benefit of the social science scholars who study law. Silbey told us that law was like McDonald’s.4 The message was one of structure and constraint. McDonald’s constructs new forms of eating, and law, particularly the law and society movement, constructs new forms of disputing or settling disputes. McDonald’s forms are fast, the food can be taken away, and the product is generic. What you get is not noticeably different anywhere in the world. And although there is some accommodation as with incorporation of some local raw materials into the mix, for the most part 2. See David Gordon’s critique of the failure of national authority in a multinational world (mentioned by a student of his who is teaching in Canada at the New School Convocation on Gordon’s work, May 19, 1997). 3. See research from CONGLASS on piecework and the seduction of the global. On the power of international capital to lay a foundation for American culture and goods by its cultural exports, see Spielberg jurisprudence. 4. Susan Silbey, “‘Let them Eat Cake’: Globalization, Postmodern Colonialism, and the Possibilities of Justice,” Law and Society Review 31 (1997): 207–237. Silbey’s food images have been recurring beginning with law as a bagel in a 1981 address delivered at a meeting of the American Legal Studies Association in Hartford, Connecticut. She offered the image in response to skepticism as to whether interpretivism allowed for law to have foundations, as in “It is bagels all the way down.”

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the McDonald’s empire displaces the local vendors. This is a form of “postmodern colonialism,” where a global market economy produces uniform products that overwhelm local practice. And while “cultural imperialism,” like law, involves domination and resistance, we have reason to be suspect of those who see in law the possibility of resistance. A debate over whether law can be an agent of both liberation and oppression is at the core of the globalization debate. The debate over globalization like the debate over law centers on a dualism, a division of the world into oppositional forces or categories. Dualism is a Law and Society truism with which we have been preoccupied for some time. Sometimes we see resistance in ordinary practices, sometimes domination. Specifically, Silbey disputed contentions that local practices are able to challenge global practices effectively. Her argument was theoretical and analytical. As with the bagel, which she had used to explain interpretivism years before, there is a slight risk of getting lost in the food metaphors, but she provided a strong critique of the role of global processes in rationalizing production in their sectors. The link between the “global” and law needs development from ways in which it was understood in the 1990s. Silbey cited a case that opened the way for control of MacDonald’s franchises in France, and expresses concern about the reach of the fast-food style of life. During the Law and Society conference in Glasgow in July of 1996, where she presented her ideas, we saw how law participates in globalization as American academic practices. Sometimes these are not much more subtle that the packaging of a Big Mac. In the conference setting, they include not reading papers and very informal presentation style. This was true again in Budapest in 2001 where it was mixed with tension over post communist developments. The phenomenon has been repeated about once every five years with Berlin in July of 2007 being the latest at this writing and perhaps exemplifying the emerging shift from U.S. to European academic hegemony. The answer to the problem of domination and resistance is partly empirical, and there is a good deal of material on that.5 Silbey uses evidence on the stratification of the U.S. workforce in the last decade. Like the Honduran response to critiques of its work processes at the time, the introduction of McDonald’s has a different social meaning in different countries. Would the labor process be more or less democratic in a French MacDonald’s as compared with the surrounding restaurants? One of the challenges is that McDonald’s is a brand of eating, and to make the analogy to law work I think 5. Mindie Lazarus-Black and Susan F. Hirsch, Contested States: Law, Hegemony and Resistance (New York: Routledge Press, 1994).

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we need to speak of brands of law. To me legal realism is a brand. Realism is to law as MacDonald’s is to food. There are many varieties of realism, even within law.6 Valerie Kerruish has mentioned the Scandinavian and the American. The same distinction is made in the Dictionnaire Encyclopedique de theorie et de sociologie du droit, edited by Andre-Jean Arnaud,7 with the American version linked to Karl Llewellyn, Jerome Frank, and Felix Cohen in the 1930s.8 Although it is not central to Thesis of the French encyclopedists, American realism has a strong affinity with the sociology of law and the Law and Society enterprise. The Law and Society Association has jurisprudential and sociological roots. It is possible that legal realism is the fast food of law, and the Law and Society Association is the McDonald’s. Some of us are old enough to remember law and society as small groups of social scientists meeting on college campuses in the United States. The Law and Society Association has no golden arches, but it does have faxes and modems, and in Glasgow it had legions of students wearing yellow T-shirts making the conference run smoothly. America has been an exporter of “court-centered constitutionalism.” It has been evident near to the American shore and quite far away. In Canada, Prime Minister Pierre Elliot Trudeau was repatriating the Constitution from England as a means to keep the fragile country together in the 1980s. There was not the sort of fanfare one might expect fifty years from now for this event, but there were remarkably enthusiastic members of the law book– publishing community who saw a boom in the publication of law reports from the Supreme Court of Canada, which, up to that time, had been a relatively passive institution. Republicanism was part of Trudeau’s strategy; the securing of federalism was also a part, but the influence of the United States and the shift from Cambridge in England to Harvard in Cambridge, Massachusetts, was also very important. In Canada, the Supreme Court had already laid the foundations for a shift from the English parliamentary model to judicial review American style. A progressive jurist by the name of Bora Laskin had broken the tradition of education in England and had instead gone to an American law school. From the bench, he had indicated his eagerness to move to a world of prominence for courts, a world more like Washington than Westminster. Laskin’s move bore fruit when the Constitution was “repatriated” from England in 1982, and judicial review in Canada got under way in earnest. 6. Valerie Kerruish, Jurisprudence as Ideology (London: Routledge, 1991). 7. Andre-Jean Arnaud, Dictionnaire Encyclopedique de theorie et de sociologie du droit (Paris: Librairie Generale de Droit et de Jurisprudence, 1993). 8. William O. Douglas, Thurmond W. Arnold, and Walter W. Cook are given lesser roles.

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For even longer, the Australian High Court has followed a version of the American model that includes an active judiciary that even explicitly cites American precedent. It held on a Communist Party case in 1951 that “in our system the principle of Marbury v. Madison is accepted as axiomatic.”9 In the 1990s, Gerald Rosenberg of the University of Chicago visited Australia and wrote a paper titled “Do Not Go Gently into That Good Right,” which argued that there were pernicious effects of First Amendment jurisprudence on the High Court in Australia.10 This was part of a larger effort that began with The Hollow Hope, Rosenberg’s very influential book on the failure of the United States Supreme Court to accomplish social change without the support of the other branches of government. Retiring Chief Justice Gerard Brennan of the Australian High Court has commented on these issues many times. In a speech delivered on February 21, 1998, and widely publicized, he considers “the suitability for the future of the Westminster system of government as adapted for use by the Commonwealth” of Australia. Although this system was influenced by the American model when written, it “brought the legislative and executive power together in Parliament.” He is critical of the notion of an elected head of state. Brennan held that “[r]esponsibility for the state of the law and its implementation must rest with the branches of government that are politically accountable to the people.” The mechanism appears to be judicial willingness to turn away from popular pressures as well as the effective functioning of the parliamentary system. This comes from one of the majority in Mabo and a leader on a High Court, described by senior New South Wales judge, Roderick Meagher, as manufacturing civil rights out of thin air. Condemning decisions beginning with the political ad ban in 1992, Meagher argues that civil rights of the kind declared by the High Court since 1992 are contrary to Australia’s tradition of government and reflect judges’ personal views, not any orthodox reading of the Constitution.11 America rights and High Courts 9. Australian Communist Party v. The Commonwealth 83 CLR 1 at 262 (1951). See also Brian Galligan, Politics of the High Court (Brisbane: University of Queensland Press, 1987). See also Sir Anthony Mason, “The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience,” Federal Law Review 16, no. 1 (1986): 6–8. 10. The paper examines the influence of the First Amendment to the United States Constitution on a 1992 decision of the Australian High Court, Australian Capital Television Pty Ltd v. The Commonwealth 177 CLR 106 (1992). The Australian decision invalidated federal legislation prohibiting paid TV and radio campaign advertising and creating a system of free time to replace it. The paper argues that undo reliance on the American model actually undermined the free-expression values at the core of the controversy. 11. Bernard Lane, “High Court Charged with Conjuring Civil Rights,” The Australian, January 20, 1998, reporting on an article in the latest Australian Law Journal. In an editorial on the article, The Australian writes of how unusual it is for a sitting judge to offer such criticism of the High Court. Yet, it concludes that this is an example of a robust and intellectually diverse, if generally timid, judiciary. Legal issues in Australia bear on legal mobilization in matters like Aboriginal claims and of feminism, of capital punishment and abortion, and around rights.

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have been falsely elevated as the preferred protectors of human rights. All around the world, democratic processes risk being cut off from discourse on important issues because of this shift to courts. And now it is returning to its source in the Roberts Supreme Court. In the United States, there is exceptional scholarship by Michael McCann and Helena Silverstein to the effect that the power of rights is not in what the high court announces but what can be done with it. This is the politics of rights, and rather than being a limited comment on a top-down jurisprudence, the stance of scholars like Rosenberg draws attention to the effect of court centeredness on democratic institutions.12 It is hard to see the American high court as preserving rights. There has been a public abdication of substantive rights talk, and a de-radicalization that profoundly undermines progressive politics. For instance, one might look at capital punishment and a very contentious situation with regard to abortion in the United States. The United States has more than three thousand people on death row and a written provision against cruel and unusual punishment. There are thirty-fiveyear-old precedents supporting the right to abortion, and violence at clinics that undermines exercise of the right. The legacy of rock and roll has been intrusive.

The Challenge Del Sur We begin here with a challenge posed by one of our most thoughtful and passionate theorists of law, Boaventura de Sousa Santos. This is the challenge del sur and it refers to the economic divide north and south of the equator. We conclude this section with some comments on how law travels that anticipate where we conclude the volume—with the march of Anglo-colonialism in law. We make lots of things into texts these days (movies, conversation, dreams) in order to bring them into our discussions. The hope is that something is gained. Here, we have a public speech that has become an article. I hope we do not lose too much. In addressing the written text of Boa’s “Three Metaphors,” I would like to recall the speech of which the text is a part. The speech took place in a very large and fabulously ornate room in the Royal York Hotel in Toronto.13 It was a luncheon speech, presented to gathered 12. Some time ago, I wrote a piece called “bad attitudes” about the construction of court centeredness at the expense of the legislative process, especially at the local level. 13. The Royal York dates from the railroad era. It looms near the shore of Lake Ontario across from the train station, representing an imperial presence from an era almost 100 years ago. The room had been used earlier in the conference for a series of biographical presentations taking the Association through the lives of its notables.

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scholars who had just completed a chicken salad plate, as I recall, and run through a series of awards. It came near the end of the 1995 annual meeting of the Law and Society Association. This sort of occasion is a classic in the practices of associations, which use them to build collective identities from the myriad smaller and more typical performances—in our case, the panel sessions. Luncheon speeches are, as many of you know, somewhat uncharacteristic of the Law and Society Association. Although the luncheon is always done beautifully, it is a more formal institution than socio-legal studies are accustomed to—being realists and all. This is an association that had a journal going for years before it decided to constitute a membership and meet face-to-face. We know ourselves as taking our marginality in legal scholarship as an honor. I think of status-conferring ceremonies as things the people I study do. I always find it a little odd to look up from a messy table to the dais for inspiration, but I love these occasions for their aspiration. We are constituted as a group, and it is to the ongoing requirements of the constitutive function14 that the De Sousa Santos speech makes its contribution. It has been my good fortune to work with Boaventura de Sousa Santos on a number of projects. I have attended conferences he put together and organized panels with him. He introduced Albie Sachs, the South African legal revolutionary, in one extraordinary session in Spain in 1990. His company and his counsel have been treasured. He links North American Law and Society with a much larger community of Law and Society scholars from Europe and Latin America. It is around people such as Boaventura that we have begun to form an international community. The character that community will take is at the core of his presentation. If we heed his call, the community may be more than an imperial expression of English and English law. In a comment on the Amherst Seminar some years ago, Boaventura spoke warmly of his involvement in our work.15 He eschewed the pretense of objectivity while placing his perspective on the work of the Seminar in terms of the shift from personal to professional knowledge. The Seminar was becoming public property, and Boa wrote of his disorientation as a result of the transformation. In his comments, he called attention to the relationship between scholarly observation and our ordinary practices. In a luncheon talk, the rela-

14. See Alan Hunt, Explorations in Law and Society: Toward a Constitutive Theory of Law (New York: Routledge, 1993), for discussion of the constitutive process in law. 15. “. . . a group of fine colleagues . . . whose company is relaxing and pleasant and with whom it is possible to entertain exciting debates. . . .” Boaventura de Sousa Santos, “Room for Manoeuver: Paradox, Program, or Pandora’s Box?” 14 (1989): 149–164.

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tionship between what is said and who we are remains compelling. My comments, like the luncheon talk, are a professional endeavor in the sense familiar to Law and Society scholars in which the social is professional. And, as in the relationship between institutional forms and social practice popularized by Paul Bohannon,16 here we all take a spin with “double institutionalization.” Boaventura’s talk broke with the focus on the personal earlier in the meeting and challenged us collectively to think about who we are. Following our awards ceremony, we had some sense of who we were, and we had announced whom we liked. He chose to try and tell us who we should become. Of course, this requires caution. He wrapped his admonitions in great erudition and a romantic way with English. He was charming in his challenge. Over the last twenty years of fascination with interpretation in social research and the pull of arts and letters, I have sometimes cautioned my colleagues about presenting themselves as poets. My position has been that as socio-legal scholars we get our authority from research rather than rhymes. We draw attention by the refinement of our experience rather than the rhetorical power of our vision. Yet, Boa is not a colleague for whom this distinction makes much sense. He does science while alliterating. His presentation comforts us with the repetitions of the orator. His talk, he says, will confirm “. . . the different audiences in their differences,” and he tells us that his “. . . argument is constituted by three arguments.” For Boa, “. . . the paradigmatic crisis of modern science necessarily entails the crisis of modern law,” “. . . the future promised by modernity has no future,” and he counsels us to “. . . experiment with the frontiers of sociability as a form of sociability.” When things need to be emphasized, like difference, argument, crisis, future, or sociability, Boa says it twice and features the ideas prominently. But, he also draws on considerable experience. Boa gives us three cautions or “subjectivities,” which he presents as places we should incorporate into our vision of law:17 the frontier, the baroque, and the South. These are fascinating images, and as he develops them, they become concepts against which to evaluate ourselves. Surprisingly, at least two of these “subjectivities,” rather than existing simply as aspirations in a paradigmatic shift, may actually already exist as practices in our professional community. By “our professional community,” I mean the scholarly activity that built and now is maintained by the Law and Society Association. The frontier is a natural subjectivity for Law and Society. The 16. Paul Bohannon, “Double Institutionalization,” in Society of Law, ed. Vilhelm Aubert (London: Penguin, 1969). 17. Boaventura de Sousa Santos, “Three Metaphors for a New Conception of Law: The Frontier, the Baroque, and the South,” Law and Society Review 29 (1995): 569–584.

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baroque, although strange sounding in the West, is us again. But the final subjectivity, the South, is not a place an association located in American law can easily go to. Law and Society has constituted itself on the frontier of American law from its inception. It is easy to read Boa’s description of the frontier as if he was speaking about us as we already are rather than as we might be. The Law and Society Association has made itself a part of how American law knows itself by operating at the margin. Selective and instrumental use of tradition is among its most familiar practices. New forms of sociability, a frontier staple, characterize our social relations, while the promiscuity of stranger and intimates is a Law and Society tradition. Some years ago, a colleague at his first meeting complained to me that the association seemed clubby. The implication was “exclusive.” Within the decade, he was the editor of the Review. Law knows about the promiscuity of which Boa speaks. The energy of the Western academy is eagerly incorporated into the institutions of law through associations like ours. More telling still, where the formal authority of the state is weak, a characteristic of the frontier, the Law and Society scholar grows in importance. Thus, in America, where realism was born and where we know a judge’s politics more precisely than his or her jurisprudence, Law and Society flourishes. While in Europe, where old forms still weigh heavy and in Latin America where legal formalism is an aspiration, socio-legal studies are still, for the most part, making their place. The baroque as a model for action seems a little stranger—at least to a contemporary American. It would have been more familiar to nineteenthcentury Americans. But Boa has something specific in mind. He defines the baroque as “an eccentric form of modernity” where the central power is weak with the center reproducing “itself as if it were a margin.” This makes me think of Law and Society again. Living “comfortably with the temporary suspension of order and canons” is something we do naturally. Boa’s is a complex vision, and his depiction of baroque subjectivity read in the context of Law and Society is like holding up a mirror. With our open shirts (rather than three-piece suits much less clerical collars) and our gender-neutral hierarchies, we think of ourselves as removed from el mundo al reves of Del Leon’s baroque feasts. But, against the formal world of law that is our perennial backdrop, we may appear as something of a carnival. And, like the baroque, we are constantly attaching ourselves to the star of “modernist evolution”18 as against the “permanence and repose” of the Renaissance. 18. Most paradoxically, this is evident in the claim of postmodernism to come after the modern. Like the “ultra” modernism of the 1960s, some of this was a fashion statement.

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But what of the South, del Sur, which in Boa’s metaphor spreads out through the North and West and expresses “all forms of subordination brought about by the capitalist world system”? Like the East, it is a product of empire. It speaks a different language. It is “the victim” that Boa exhorts us to “side with.” Meeting this challenge was one of the original aspirations of the Law and Society enterprise. Our founding fathers engaged in social research to uncover the myths about law that, although they may not have kept populations in chains, did dampen the enthusiasms of the democratic processes—things like the formal ideologies of appellate doctrine and the idea that people paid attention to the Supreme Court. They documented the suffering the bourgeoisie tried not to notice. Today, however, I think that Boa’s exhortation to bring the South into our community offers the most significant challenge to our subjectivity. Will we be willing to incorporate the suffering of the South into our practices? Will we accept our complicity in the imperial forms of law? This has become a pressing challenge, as developments in the policy field such as attacks on affirmative action and California’s Proposition 187, eliminating programs for undocumented aliens, have turned law into an arena for racial struggle again. As scholars, we are appalled at the blatant racism spreading from California in the wake of Proposition 187. We do not hear the kinds of things reported in Atherton, California, on the day following passage of Proposition 187—“We don’t have to let fucking Mexicans in here anymore!”19 In constitutional law, equal treatment for aliens had been among our clearest principles. Yet, at mainstream professional meetings there was far more interest in O. J. Simpson than in the extraordinary legal issues surrounding Proposition 187. Listening to Boa in the great hall of the Royal York, I could not help but reflect on the previous meeting at the Arizona Biltmore, and earlier ones at the Stouffer in Chicago, or the Claremont in Berkeley, all luxury hotels. It seems that our gatherings have come to depend on the mechanisms of capitalist modernity. Going south requires facing our complicity. When we met on college campuses and set up in dorm rooms left vacant by our students, the ascetic conditions served as a sort of penitence if not a transformative commitment with regard to inequality in condition. In Scottish dorms, and hotels, we captured a little bit of that old spirit. But, even when we go out of the United States, we are more likely to go north. We are the marginal front line of global law carrying the banner of Western rights, the legal profession and science. Whether in Amsterdam, Toronto, or Glasgow, we are an Angloas well as socio-legal association. While we are generally welcoming to out19. From a school security guard.

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siders, we have become uncomfortable living poor. We give radicals more space in the great halls than some other law associations, but we are not very comfortable with the noise or commitments of their causes. The occasional petition drive at a Law and Society meeting seems to be a little diversion in comparison, say, with the Socialist Scholars Conference, which meets every April in New York City. There, petitions and placards are more prominent than panels. Boa calls our attention to the imperial relation. He asks that we “learn how to learn from the South.” He gives the example of Gandhi. Do we have a Gandhi? Perhaps it is more realistic to consider whether we feature Gandhis or their insights in our studies. Or whether our work is still oriented to meeting the challenge of the South. We talk a lot more about diversity now than in our early days. But, we are a restrained group, nervous about commitment, and we are northern in the quintessential cultural sense. Some years ago, a meeting in Puerto Rico was suggested and warmly encouraged by Puerto Rican scholars active in the association. But, we heard that that separatist community would not be supportive, so settled for the more completely settled “South” of Arizona (and the Biltmore Hotel). As a socio-legal issue, the problem of the South recognizes the imperial march of ideological colonialism long after the military of the empire has been withdrawn. This is the thrust of academic, cultural, economic, and material forces from dominant to subordinate, from sender to receiver society. This is a realm that makes problematic heavy emphasis on the boundaries of nationality.20 In Law for the Elephant,21 John Reid argues that the laws operating on the frontier in the United States were essentially the same as the laws of England, which immigrants took with them. That is, Europeans who moved westward on the Overland Trail took settled notions of law with them. Reid also suggests that clashes on the frontier in the southwestern United States between English and Mexican legal culture played a role in the formation of law. Australia adds another dimension to the role of context in structuring legal relations in new regimes. The penal colony in New South Wales on the eastern coast of Australia was established in 1788. With the opportunity to come to America affected by the war of independence, a new sort of colony, constituted at least in part by persons once outside the law but now totally confined by it, was begun in Australia. These observations are relevant to the 20. Although, as we begin to see in the manuscript, the power of national law has often been underestimated in the enthusiastic reception of the global idea in the United States. 21. John Reid, Law for the Elephant: Property and Social Behavior on the Overland Trail (San Marino, CA: Huntington Library, 1980).

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South to the extent that they delineate the importance of the laws brought in from someplace else and issues having to do with the consequences of these laws in new territory. Thus, how we understand law is implicated in the challenge of the South. When we fail to notice the power of Anglo-colonialism in the culture, in the academy, in the law, we fail to account for the ongoing benefits of colonial regimes in North America and Europe. We can and have at times been adventurous in our work. From the “Special Issue: Law and Society in Southeast Asia,”22 to Maria Teresa Sierra’s article titled “Indian Rights and Customary Law in Mexico: A Study of the Nahuas in the Sierra de Puebla,”23 our scholarship is reaching out to meet the challenge.24 This work seems to me to be an example of the Law and Society Association “going south.” The work manifests some of the difficulties of this encounter. In the Southeast Asia volume, the editors comment on the centrality of engagement in the scholarship of the participants and “[t]he resistance to marking or maintaining a boundary between activism and socio-legal research. . . .”25 This could be good, and there is also some familiar territory. The concept of pluralism does some of its old work in bringing Southeast Asian cultures and societies into the legal sphere. In Sierra’s research on the Nahuas of Huauchinango in central Mexico, Law and Society scholarship leads the way south. Culture, rather than being romanticized, is discussed in terms of “processes of domination, colonization, and resistance” and seen as “embedded in the dynamics of state law and the global society.”26 Her research is rich in the language and practices of “the South,” much like earlier work in anthropology of law. And, in the best sense that Boa would have us consider, the research is also conscious of the role of “our” law, imperial law, in constituting the languages and practices of an indigenous population. From our own scholarly experience, the challenge of the South cannot simply mean recognition of another. It requires the sort of self-understanding that allows acknowledgment of complicity and incorporation of self-criticism. This is a process that may eventually shift from scholarship to our professional practices. We feel we are getting better at traveling, at getting

22. “Special Issue: Law and Society in Southeast Asia,” Law and Society Review (1994). 23. Maria Teresa Sierra, “Indian Rights and Customary Law in Mexico: A Study of the Nahuas in the Sierra de Puebla,” Law and Society Review (1995): 869–896. 24. Described vividly and supported with other examples by Sally Engle Merry (1995) in her presidential address to the 1994 annual meeting. 25. “Special Issue,” 419. 26. Sierra, 229.

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beyond the nation-state. But, in New England we are aware that the missions of religious men were accompanied by those of the captains of industry. Americans have been traveling south with their factories for some time. It will not be enough to go there, not if it is to the local Biltmore.27 The South must be fully represented in our councils,28 and its struggles must have a home within our method. Thus, the challenge del Sur is a really tough one to meet, given the power of colonialism that has always been associated with Anglo-American law.

Global Jurisprudence29 The universalism that characterizes law enables the internationalization of jurisprudence. Ronald Dworkin’s book Law’s Empire seems unconcerned about being identified with imperialism. That, indeed, appears to have been the point. The “ethereal sovereign” that is his subject, the abstraction that would hold sway over humanity, this has become more than an AngloAmerican practice. While drawing heavily from English and American cases, his claims are not limited to that context. Scholars of law like scholars of literature and engineering travel around the world for conferences, to teach and to collaborate on research. When teaching at the International Institute for the Sociology of Law in Oñati in the Basque country of Spain, Christine Harrington and I found that realism did not mean the same thing that it does in the United States. Indeed, the jurisprudential belief that “the law is what the judge says it is” has different implications depending on the state of the national jurisprudential culture. For instance, in Spain, after forty years of life under Franco many Spanish scholars are aspiring to a relatively autonomous, formal legal system. In Argentina, where the threat of military rule is real, the premises of the American brand of politics-driven jurisprudence have reactionary and dangerous implications. Sheldon Goldman and I convened a conference called “Judging the Judges: Selection and Evaluation Issues,” in Oñati,30 with participation by scholars working on the question in Europe, the United States, and Australia. The enterprise provided a way to think about the American model of juris-

27. Or the University of Melbourne, for that matter. 28. By, among other things, the inclusion of scholars of stature rather than easily dominated young people. 29. This section of the chapter was initially presented to the Conference on Global Law and Social Science (CONGLASS), April 4 and 5, 1997, at the Institute for Law and Society, New York University. 30. March 1997.

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prudence and its aspirations if not its influence on international conceptions of law. The Institute in Oñati is a nearly twenty-year-old endeavor, resulting from a commitment by the Basque government to support the sociology of law. It is a remarkable institution, housed in a sixteenth-century university building in a medieval town in the foothills of the Pyrenees. The magic of this setting is made all the more remarkable by its single-minded attention to the sociology of law. The names on the doors in this historic building now list some of the greats in our field. There is the Max Weber lecture hall and the Durkheim Seminar Room. Contesting for pride of place with the ancient sanctuary and Moorish wood carvings on the ceilings is a library dedicated solely to the sociology of law. One of the fascinating things about Oñati is the ambitious commitment to the sociology of law that has been made by the Basque government and indirectly by the Basque people. It is one of a number of enterprises to put the autonomia of the Pais Vasco on the international map. Another is a branch of the Guggenheim Museum in Bilbao. For the Basque government, internationalism is a project of a nation within a nation. The institute is in a small country within a larger one that sits on the edge of a European community undergoing dramatic transition. This is not the UN on the island of Manhattan. The project is not without controversy, since it involves conceptions of nationhood and a significant expenditure of resources. As an initially European enterprise, the institute was formed under the auspices of the Research Committee for the Sociology of Law of the International Social Science Association. A board composed of members selected by the Research Committee and the Basque government runs it. The politics of this board are at one level the global politics of the sociology of law as expressed through the Research Committee, and at another they are the politics of a region in Spain, a semiautonomous region that is itself caught in a politics of terror and national identity. In one sense, this is almost too much to take, and most people do not take it all in. One enjoys the comforts of a stable academy and worries about the intrusions of assassinations and torture. Yet, as a group of academics operating out of a postmodern condition, the conjunction of deconstruction of sovereignty and the aspirations of the Basque people seem rather serendipitous. At the outset in Oñati, we tried to foster a way of looking at judges that was neither simply comparative nor necessarily global in the way that term is conventionally used. It was not to be simply comparative, because our project was not meant to simply chronicle the differences between regimes in how they select and evaluate judges. It is not necessarily global, because that term includes in its purchase and its politics an imperial enterprise in which the bigger, richer national systems assert themselves in self-aggrandizing fash-

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ion. Various national and subnational perspectives were to be synthesized in the best seminar tradition into an international discourse on these themes. For me, this perspective is a product of working at the International Institute for the Sociology of Law over the last six years. The international perspective at Oñati has a number of very compelling qualities. They come to my mind as I think of the uniqueness of this gathering of judicial scholars from around the world. Although the language of the master’s program and many of the workshops is English, they speak it in Oñati with sensitivity to the power of language to command more than one would like. Only when ideas about judging legitimately contribute to an international perspective should we give them any special purchase. It was hard not to let the workshop in Oñati be dominated by an English or American perspective on selection and evaluation. In the practice of this seminar, we will, when it is at all possible, provide informal assistance in translation of the ideas in the workshop. Respect for contributions in Spanish and French where they may be made will be amply repaid when those of us who are linguistically challenged step out of the seminar room. Thus, while coming out of a comparative tradition and necessarily confronting global claims and enterprises, out of respect for the project under way we aspired to make our scholarship international. But, we were only partially successful. Our greatest achievements were cultural. Being in a small place that was foreign for English speakers forced a degree of camaraderie in getting through things like dinner or dealing with lost luggage. Current convention accepts English as the language of international scholarship, and, personally, this is convenient. But it is not satisfactory. Just as the international enterprise that looks out over the river uptown fully recognizes the importance of language and provides an opportunity for business to be conducted in many languages, we must not be content with the convenience of English if we lay claim to the liberatory potential of studying the global expansion of law and social science. On every occasion in which English is not the dominant language in a gathering, one hears voices and listens to stories for the first time. At the Curso de Verano in Oñati during the summer of 1995, attendance was roughly ninetyfive Spanish speakers to five English speakers, and the perspective on American hegemony in Latin America in particular was sobering. Ten years later, in the same place during a conference in Spanish, it was the technology of GIS, the Geographic Information System that allows data to be collected and displayed on maps, transformed a sociology with Catalan roots into a global inquiry into surveillance and the transformation of social control by technology. The Institute’s mission is at once narrowly focused on the study of law from a sociological, socio-legal, or social scientific perspective, and at the

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same time expansive in its embrace of positive and postpositive perspectives. The conception of science is perhaps more eclectic than American social scientists are used to in that there is more emphasis on rigor and a critical perspective than there is on the modeling of systems. This is a science of society, and as such there is a great deal of respect for the normative and for the cultural in the work fostered by the institute. We did not try to put to rest disputes over scientific approaches versus cultural ones, and in spite of the diversity of the gathering, these disputes did not become important to the way we talked about judges over those two days. As this global enterprise unfolds, we are reading James Gardner’s Legal Imperialism 31 again. Bryant Garth mentions it in comments offered by the Socio-Legal Studies Association in England. I am drawn to it as I imagine how my colleagues who have been imprisoned by regimes we have not lived under will react to our work. The profound differences in the global condition require more than lip service to the liberatory and hegemonic in global law and social science. As a cautious promoter of global social science, I seek representation from what Boa De Sousa Santos called the South in order to be sure that we are supporting the libratory and not just the hegemonic aspects of this work. In seeking participation from the recipients of the global product, it is hard to justify going on in the absence of participants from the South.32 “Global law and social science” is the latest in a line of products offered on the world market. It follows law and modernization, alternative dispute resolution, and human rights. Each offered progressive change and brought with it pressure for competitive markets, individualism, and state regulation. If American institutions like CONGLASS and the Law and Society Association are to be more than agents for the global expansion of northern market economies, they cannot continue to straddle the epistemological fence that blurs the boundary between rich and poor. They must make the essential moves and stand with those who are suffering under the dominant regime structures. A few years into the discussion of global judicial power, New York University Press published the proceedings of a conference on “The Globalization of Judicial Power” in which the expansion of judging as a political mechanism was chronicled throughout the world. This is a well-known

31. James A. Gardner, Legal Imperialism: American Lawyers and Financial Aid in Latin America (Madison: University of Wisconsin Press, 1980). 32. This was true in meetings such as CONGLASS, which took place at New York University in the late spring of 1997 but was consciously avoided by the “Counter Hegemonic Globalization” groups convened by De Sousa Santos and scholars from Colombia.

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phenomenon, and although it is certainly worth further study, our conference sought to look more closely at an aspect of judging that seemed to us particularly well developed in the social sciences—selection—and at another area, evaluation, that seemed distinctly non-social-scientific in its orientation but that appeared to have some relationship with selection. We also believed that a topic of this breadth might support an international gathering and foster exchange of a productive sort. Selection of judges is a highly developed activity in the social sciences. Like opinion studies, it has lent itself to empirical inquiry. Usually prediction is based on forward-looking projections drawn from established data. It depends on a relationship between judges and social structure and judges and power, but does not usually make this relationship problematic. Evaluation of judges, on the other hand, draws from politics, history, and religion. It has been more evaluative and includes as adjunct considerations the matters associated with the global expansion of judicial power—the relationship between judges and politics. We had a distinguished group that had contributed significantly to how we understand judging, and we took on the task of considering both selection and evaluation, that is, the cultural context for the institution of the judge. We have a puzzle before us in respect to the relationship. We know that in America when a judge is criticized (Rose Bird in California or Clarence Thomas in Washington, D.C.), there are consequences for selection (a conservative replacement in Bird’s case, a new judiciary committee in Thomas’s), and that in response to every assertion of critique (from Bird to Thomas), there is a corresponding response that may well be related (Ruth Ginsburg and Stephen Breyer, perhaps). What are the things we may want to say about judges, how we get them, and how we like them? As their power expands, we may want to question their place relative to more-democratic processes. Perhaps the judges are a key to underlying forces redefining politics and government in a purportedly democratic age. I am tempted to see local practice as resistant to a world culture in a parallel with the resistance of law to social science. But that may be wrong, as social science has subsumed so much of law’s culture. The problems of ethnocentricity are deeper than any assistance over the dinner table is able to overcome, and although the aspiration for shared perspectives is influential, there are fascinating revelations that come from the international environment. For instance, the American legal realist style is part of the consciousness of American scholars. This was revealed clearly in the workshop at Oñati. Colleagues Joel Grossman, Henry Abraham, and Sheldon Goldman in particular engaged in exchanges that depended on the

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familiar discussion of high-court opinions set in institutional context by the ideologies of professional power and the academic tradition. Abraham and Grossman relied on both the knowledge of cases and the biographical significance of individual judges. Seldom in the other work were historic figures invoked to the same degree. More interesting and ultimately essential for understanding the purchase of American legal realism is the reliance for scholarly authority on experience and personal contact with Supreme Court justices. Years ago I noticed this in the work of Walter Murphy, formerly the McCormack Professor of Jurisprudence at Princeton. With a potential subtitle like “My Friends at Court,” scholars conducting their work along these lines, even in the context of a social science paradigm, inevitably rely for authority on who they know on the bench. Upon returning from the workshop, I watched a lecture by Barbara Perry, one of the participants in the workshop, which was broadcast over C-SPAN, the American government’s cable network. Perry, in a lecture originally given at the end of January 1997 at Sweet Briar College, told a story about oral argument to illustrate what she feared would be the problem of televising oral argument at the Supreme Court. Her subject was a case dealing with urinalysis, and the Court, traditionally squeamish about dealing with bodily functions, was treated to a brief lecture from the bench by Justice Breyer as to the naturalness of urination, ending with a flourish to the effect that “We all do it.” In response, Perry reports, the counsel presenting the case offered that indeed, he might do it right then and there, to the general amusement of Court and gallery alike. While Perry’s point was about the potential for drawing such quips from the recorded transcripts, the basis for her argument was the traditional American reliance on personal experience of things judicial. The realist phenomenon has a slightly different dimension in law schools relative to political science departments. This may be related to the relative distance of these institutions from power. In the most prestigious law schools, important faculty will have worked at the Supreme Court as part of their career development. Authority derived from association with power has become a more central feature of judicial power as practiced in the United States. This kind of authority resists the international implications of a social scientific paradigm. For instance, it is difficult to articulate and acknowledge. While French or German jurists readily address the influence of schools in the formation of an academic culture, Americans have difficulty seeing the place of academic ideologies in the institutions of legal power because so much of the power is personal and perceived to be idiosyncratic.

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That notion of realism stands against the traditional aspiration of law to be more than the interests and formations that underpin it. In a presentation on the subject of “judicial activism” delivered at New York University Law School, Upendra Baxi, a visiting member in the once highly touted “Global Law School” faculty, drew attention to the embeddedness of judging in the apparatus of the state while holding out the hope that they may be expected to advance the cause of human rights. “Activism happens,” he said, “in a structure of constraint,” which he associated with state power. And while judges will not be able to eliminate all forms of suffering, he held out the hope that the leverage allowed by a relative autonomy would allow an “independence within conditions of dependence.”33 In preparing for the Law and Society Conference in Glasgow in 1996, I was in contact with colleagues around the world seeking to respond to the idea that there is a tension between the sites of jurisprudence and the claims of law. Peter Rush, now of Melbourne University,34 indicated that his paper was concerned with “the nature and condition of juridical existence.” Rush also offered that, “to the extent that this [juridical] existence has a national form,” he thinks he “would specify it in terms of its historicity.” “In terms of context,” he proposes an interest “in taking a specific case study and seeing how it has some interesting things to say about the relation between law and its reality.” Law here seems to draw from some notion that there is a law for the jurists of the world, but we tend to speak not empirically from the multiplicities of law but from our own English-speaking general understanding. This has the tone of the old “World Peace Through World Law” movement. Rush suggests that “in current law that reality is largely reduced to a set of procedural and institutional issues.” He sees law driven “by either reification or a . . . background” to be pursued in the case study. Rush presents a case dealing with police procedures in Melbourne with implications for HIV and sexuality. But what does it mean to offer it to an international context as having a bearing on law? Years ago, in discussing the postmodernism of Douzinas and Warrington, Professor Martha Umphreys of Amherst College argued that a “bad post modernism” holds out universals of law and justices. The last section of this chapter and the book suggests why we may not have to jettison universal aspirations.35

33. March 16, 1999. 34. By e-mail, May 28, 1996. 35. David Harvey, The Condition of Postmodernity: An Enquiry Into the Origins of Cultural Change (Cambridge: Blackwell, 1990).

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Possible Reality We conclude by examining the nature of law with reference to global forces and categories as well as seemingly unrelated cultural forms, like music. Rock and roll in particular is a global musical form with something to tell us about law. In music, we can see what is hard to see in global law.36 Rock and roll suggests popular culture more generally. Popular music has become a cultural battering ram, which, along with movies and TV, carries culture around the globe as the ships of the British fleet once did. Movies, rock and roll, and TV teach ways to think about more-arcane institutions like judges or bills of rights. The spread of Elvis Presley and video technology coincided with the adolescence of the baby boom. From the late 1950s, easily transmittable electronic forms penetrated not only the isolation of Australian culture but also the colonial relations that had built it. For instance, early American Critical Legal Studies scholars Peter Gabel and Duncan Kennedy had fun with songs like “Roll over Beethoven,”37 which they used as the title for a law review article to tweak the conservative establishment in law schools. The title and a stanza from the Chuck Berry anthem that opens the article stand for popular music transcending the classics.38 A significant portion of the culture product in Australia continued to have British roots, from the Beatles to the BBC, but this was a period in which the United Kingdom represented the past and America the future. Watching “The Baby Boomers Picture Show” from the book by Helen Townsend about life in Australia during the postwar period, I was tuned to the shift here from a colonial outpost where the English and indigenous mix was pure to enthusiastic consumers of American culture. In Townsend’s framework, TV and rock and roll were responsible for the Americanization of Australia in the postwar period,39 so that the most recognizable symbol to Australian pre36. Aaron R. S. Lorenz, Lyrics and the Law: The Constitution of Law in Music (Lake Mary, FL: Vandeplas, 2006). 37. See the lead article in the Stanford Law Review, Symposium on Critical Legal Studies, and a dialogue between “Peter (Gabel) and Duncan (Kennedy)” dealing with intersubjective zap, “body snatchers,” and rights priests. On the power of property ownership, Duncan is clear on the limits of imagination, observing the following: “I hate to tell you, Peter, the shopping center is there, and you either can get in or you can’t get in”(28). 38. This is a position in jurisprudence and a stance with reference to popular culture that Duncan Kennedy continues to develop in his book Sexy Dressing (Cambridge, MA: Harvard University Press, 1993). 39. The influence also goes from Australia to the United States. For over 100 years, Eucalyptus trees, Kookaburra songs, and swimming what used to be called the Australian crawl have been part of American life. And, today one learns to read in New York City according to “whole language”

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schoolers are the golden arches of McDonald’s.40 U.S. penetration is far from total, but the American cultural penetration is important to understanding legal institutions from citizenship to contracts and from rights to republicanism. It appears to be a particularly vibrant part of the Australian present. In the book Video Nights in Kathmandu, Pico Iyer wrote about the heyday of an American globalization that is now widely resisted and perhaps in decline. Although the United States lost the Vietnam War in real life, Iyer describes victories by Rambo throughout the 1970s and 1980s on the big screen. The global culture of Bon Jovi, Seinfeld, and L.A. Law made Harvard or UCLA seem cool by comparison to the Sorbonne or Moscow State University, and with it came ideas about how to organize a nation’s government. In late March of every year, the big entertainment news in Australia is the American Academy Awards, the Oscars. A decade ago, the entire cover page of the entertainment section of the Melbourne newspaper The Sunday Age was devoted to the American awards and American actors Jack Nicholson, Kate Winslet, Matt Damon, Helen Hunt, and Robin Williams. In little more than a decade some of the attentions seems to be shifting to Europe and events like the Cannes Film Festival. While in the 1990s, we might say that we are part of one global culture with Anglo-American legal institutions at its base; this is not as true today where the influence of China, Venezuela, and Saudi Arabia are demanding to be recognized. Emerging countries in the former Soviet Union, the Arab world, and South America have reason to resist that framework, in part due to the imbalance in input, but also because it fails to capture the extent that the influence of the United States on global law has slipped. Whether it is a parliamentary system or less republican models like those in much of the world, American-style law and democracy is no longer the only model of prosperity. Like some views of law, the trendy, commercial, and superficial aspects of Western life, once dominant in the world, are being supplanted. American legal realism began as a critique of formalism in law. As it turned out, the critique was severely limited. The realist critique did not entail a sense of the reality law creates or its constitutive effect. Realism has been described as “internalist.”41 The perspective presented in the preceding chapters incorporates the social reality of class, sex/gender, and race as essential in jurisprudential representations of law. Absent these dimensions of life principles developed in Australia, and in the Outback Steakhouse chain, the impact of Paul Hogan’s Australia on the United States is quite dramatic. 40. A reading teacher at the North Melbourne Primary School told me so in 1998. 41. Valerie Kerruish sought to demonstrate the limits of legal realism for addressing social phenomena, drawing on Australia’s confrontation with Aboriginal land rights. See Jurisprudence as Ideology.

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and the link between law and reality, realism in jurisprudence is a sham. At least, it has little to do with reality. Jurisprudence that speaks more about the universals of justice and law than of its own condition contrasts with the approach taken by Peter Fitzpatrick in Nationalism, Racism and the Rule of Law.42 The volume challenges the jurisprudence of a universal law and brings in social reality. Fitzpatrick sees exemplary qualities in the universal and the promise of the nation, which he contrasts with racism.43 The nation becomes one of the bulwarks against a “soulless cosmopolitanism,” and national regulation is one of the obvious bases for resisting globalization. Popular jurisprudence is transmitting a number of legal things. Among them are the importance of high courts to a republic, the written rights these judges need as a basis for their work, an elected president, and republicanism. The sense that rights need to be preserved by courts is a relatively new phenomenon in America—although it claims to have emerged in 1803 in Marbury v. Madison. Termed “judicial review,” the next time it is tried by the Supreme Court, the Civil War is the result. It is not until the 1950s that the exercise of judicial power has much success standing against the power of elected officials. I have called this “the cult of the Court.” The cult is a staple of American popular culture. Here, for instance, is Stephen Spielberg in Amistad presenting the celluloid argument that the courts got rid of slavery. This image of courts as saviors is the popular one in the United States. It is contained in the book Gideon’s Trumpet written by Anthony Lewis. Lewis, a national correspondent for The New York Times, is one of the defenders of this faith in courts.44 But it is also evident in The Brethren, a famous exposé decried by Lewis and others, which holds the Court to the mythical standards of nonpolitical probity we are expected to associate with the justices. The history of the Supreme Court and slavery is the reverse. The big Supreme Court case on slavery, Dred Scott, declared that blacks had no constitutional rights to citizenship, and it took creative interpretations of presidential power by Abraham Lincoln and hundreds of thousands of lives to overturn the decision. Struggle over these same phenomena appear around the world. Richard Abel, writing about South Africa, offers further indication of the level at which legal realism operates in cultural jurisprudence. In his review of Abel’s book Politics by Other Means: Law and the Struggle Against Apartheid, 42. Peter Fitzpatrick, Nationalism, Racism and the Rule of Law (Sudbury, MA: Dartmouth Publishing, 1995), xiii. 43. In the Fitzpatrick volume, Eve Darian-Smith examines “the interdependencies between law, identity and territory” with reference to the Channel Tunnel. 44. In 1994, he praised the Australian exercise of judicial review as an example of American courts “. . . radiating influence in the world.” See Anthony Lewis, “Abroad at Home: A Widening Freedom,” The New York Times, October 21, 1994, 31.

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1980–1994,45 Jonathan Klaaren compares the approach to truth evident in Abel’s view of law with that of the Truth and Reconciliation Commission meeting in May 1996 in South Africa. The commission was charged with finding the truth of events between 1960 and 1993. Abel discusses struggles in court during this period. To Klaaren, “the stories Abel tells are based upon a conception of truth that is considerably less robust than that implied by the Commission’s statutory duty. . . .”46 In the commissions, “the truth is inherently ambiguous,” and there is no “truth” to sociological generalizations. Thus, the powerful and symbolic institutions of the new South Africa offer a more robust realism than we are generally used to. The importance of context lies in the fact that Anglo-American academic law, like much academic work, is enamored with contingent truths. Abel’s brand of legal truth is “realist.” Judge Jerome Frank poses one of his most important dimensions of his book Courts on Trial in terms of the two theories of process: the “fight” theory and the “truth” theory. Frank’s purpose is not to champion a contingent truth but to criticize the conventional in law for having devolved to a fight (rather than a search for truth); or, as he puts it, “we have allowed the fighting spirit to become dangerously excessive.”47 Many contemporary scholars, like the lawyers in Frank’s picture of American processes, defend the fight theory and ridicule the truth theory. American legal realism has gone beyond Frank, who believed that accurate investigations of the truth were possible with some modest procedural changes. Another reason Abel’s truth is realist is its coherence with the idea that legal decisions are at their core political decisions. This is a factor in administration as well as judicial arenas. This discussion of truth in contemporary socio-legal research is not a scholastic exercise. Much of the power of critical inquiry depends on the notion that disputes over social life may turn on the truth of a proposition. Edward Jay Epstein’s 1966 investigation of the Warren Commission’s report on the Kennedy assassination is concerned with “the establishment of truth.”48 In finding that the commission suppressed serious contradictions in evidence, Epstein proposes that its members chose instead a “political truth” where the national interest would be best served by a partial but authoritative truth. The author challenges the notion put forth by Harrison Salisbury, 45. Jonathan Klaaren, Politics by Other Means: Law and the Struggle Against Apartheid, 1980–1994 (New York: Routledge, 1995). 46. Law and Politics book review, June 9, 1996, 6. 47. Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton: Princeton University Press, 1949), 81. 48. Edward J. Epstein, Inquest: The Warren Commission and the Establishment of Truth (New York: Viking Press, 1966).

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who wrote his preface to The New York Times publication of the Warren Commission’s report that “[n]o material question remains unresolved.”49 Instead, at least “one large question of incontestable materiality” remained inadequately answered. This was the number of shots fired at the president and his party. Epstein saw the Warren Commission in realist terms and understands their situation at the same time that he plays on the existence of a more compelling truth. Returning to South Africa, one is confronted with the engaged scholarship of those who resist a constitutional globalization of the American freeenterprise model. The work of Heinz Klug50 investigates constitution making in the context of global jurisprudence. He calls “the process of constitutionmaking” in the late twentieth century “an act of imposed self-binding in which an increasingly homogenized international political culture based on the recognition of property rights and formal equality” must contend with local conditions.51 For Klug, the relative autonomy of judicial processes in South Africa bears the brutal marks of apartheid. Extrapolating from his analysis, judicial processes cannot base the promise of protection for human rights on a framework of capitalist exploitation. “Constitutionalism” may be a “passport to international acceptability,”52 but it will not mean much if it is not constituted in social life. In the contemporary legal context, the standards for governance throughout the world, while not “global,” seem more uniform than at earlier periods in human history. The result is a constitutive legal project of major dimensions. Since the 1980s, we have seen constitutional processes sweeping from Latin America to Eastern Europe and the former Soviet Union.53 Such extraordinary success has become the key to what political science scholars (and their editors) have termed “the global expansion of judicial power.”54 Here, global law propagates forms by analogy from foreign structures. Sometimes neither the forms nor the structures have indigenous roots. Here, material life that law aims to construct may be too far removed from courts or death chambers for the process to work. The constructions may become more like those of the neighborhoods or the other countries we saw in Part II. Many of 49. The Report of the President’s Commission on the Assassination of President Kennedy (The Warren Commission) (New York: McGraw, 1964). 50. Heinz Klug, On South African Constitutionalism (forthcoming). 51. Ibid., 18. 52. Ibid., 67. 53. Michel Rosenfeld, “Modern Constitutionalism as Interplay between Identity and Diversity,” Cardozo Law Review 14 (1993): 497. 54. C. Neal Tate and Tprbjorn Vallinder, The Global Expansion of Judicial Power (New York: New York University Press, 1995).

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the same forces come into play on a larger scale. We conclude with them here, because from the legal constructions within which justice is practiced to the commodity form, the processes by which law becomes material in the global context draw on all of the lessons from this inquiry. The global influence of Anglo-American legal forms has depended more on positivism than the sort of analysis developed here. The belief that judges of high courts, writs, a legal profession, and practices like the obligation of contract will bring prosperity is often not grounded in law’s constitutive dimensions. All the elements of the global economy—the aspiration for a Big Mac, a Mercedes, or a hot cup of Nestlé’s cocoa—carry with them not only the expectation that liability, discrimination, or even monopolization will be monitored by courts, but the idea that those courts will be grounded in social practice. While we know the story of Rambo winning the Vietnam War for the United States over and over at the movies, the global law of courts and lawyers will take root only if constitutive elements such as civil rights and contract obligations exist as social practices.

I NDEX

Affirmative Action, 123; and Equal Opportunity, 103, 106; as a barrier, 107, and de facto, 116; and the logic of equal protection, 116; attacks, 199 After the Law, 13, 101, 122 Amherst Seminar, xviii, 14, 196 Amniocentesis, 26, 31, 49–66 antibusing campaign, 76, 107, 109 attic, 146, 150 Atticus, xviii, ix, 170 Balbus, Isaac, 18, 168, 186, 187 Baldwin, James, 119, 138 Beach Boys, 8 Before the Law, 157, 164; how to act, viii; what’s concealed, 121; in Kafka, 164 Bell, Derrick, 102, 115 Big Mac, 214 black (symbolism of the color), 172–173 Blackmun, Justice Harry, 25, 48, 71 Blackstone, Sir William, 50, 83, 107, 154 bodies in law (seeing the bodies), 54 Borges, Jorge Luis, 5 Bourdieu, Pierre, 151 Brennan, Justice William, 67, 103, 105; in Keyes, 109, 110 Brethren, The, 59, 60, 62, 64, 148, 211 Breyer, Justice Stephen, 70, 71, 103, 206, 207 Brooks, Dianne L., 166

Brown v. Board of Education, 7, 100–103, 111, 114; intent to discriminate, 105; Nixon views, 109; Marshall’s legacy, 112; Douglas views, 115 Bureau of Indian Affairs (BIA), 75, 120 Bureau of Land Management, 76, 81 California, 83, 206; innocence of, 6; University of, 11; Northern, 15, 75; development pressure, 82; casinos, 127; Simpson courtroom, 155; public buildings, 163; Prop 187, 199 Capraesque, 66 cargo cults, 168 Cavell, Stanley, 12 Chorionic villus sampling (CVS), 31, 32, 33 Churchill, Winston; on buildings, 145 Coase, Ronald, 80; Theorem, 79 color blindness, 100, 101, 102 colonialism, 123, 191, 202; and jurisprudence, 120; and constitutionalism, 126; Puerto Rican, 131; post-modern, 192 commodity form, 168, 169; authority over work, 176; and legal form, 186 conscientious objector, 12 constitutive, 122, 214; norms, 85; markets, 85; practices, 154; with Christine Harrington, 183 consumption; of clothes, 171; as part of governance, 173–174; and self-control 175; evident in bones, 176; relation to legal, 188

216

Court TV, 147, 157 Cover, Robert, 48, 50, 153 Crenshaw, Kimberly, 115 Critical Legal Studies (CLS), 19, 115, 209 Crow Dog, 127 “cult of the court,” 60, 65, 158, 211; book, 50, 62, 148, 152, 154, 161 culture war(s), 64 de facto, xvi, 7; and discrimination, x; acquiescence to, xiv; and abortion, 44; anti-busing campaigns, 76, 102; reach of Fourteenth Amendment, 105 de jure, 100, 105, 108, 115, 118; and abortion, 44 de facto/de jure distinction, 101; between fact and law, 75; and color blindness, 100; and sex discrimination, 106; not in Brown, 107; like Plessy, 112 Dawes Act, 127 DeShaney, Joshua, 52 De Tocqueville, Alexis, 126 dispute processing, 149 Dolmatz, Malvin, 7 Douglas, Justice William O., 56, 57, 58, 59 drunk driving, 13 Dworkin, Ronald, 120, 121 Edelin, Kenneth, 43 Eisenstein, Zillah, 54 Ellickson, Robert, 79, 80–86 end of the line, 66 England, 3 Eucharist, 70 family, viii, 86, 187; legal issue, ix; planning, 38; law, 86; divorce, 95 Federalist Society, 79 Feminist Anti-Censorship Task Force (FACT), 176, 177 fencing-out rule, 83 Fish, Stanley, 16 Fleetwood Mac, 6 Formalism, 139, 210 forms, legal, 137 Foucault, Michel, 23, 52 Frank, Jerome, 50, 212 Free Speech Movement (FSM), 11 Furman v. Georgia, 56 global influences, 214 going all the way, 153 Goldman, Sheldon, 58, 59, 202

INDEX

Goodrich, Peter, 15, 53, 145, 171; reading the Riot Act, 180–181; on institutions, 184 goods, 169, 170, 171 Goose Prairie, 67 Gramsci, Antonio, 137 Grateful Dead, 6 Gregg v. Georgia, 61 Habeas Corpus, 48 Hamilton, Alexander, 154 Harlem, 118 Harrington, Christine, xviii, 13, 14, 54; on Realism, 164, 202; Brigham and Harrington, 54, 137, 148, 178, 183 Hart, H.L.A., 121 Hayakawa, S.I., 5, 7 Hill, Anita, 65, 69 Holmes, Justice Oliver Wendell, 11, 57, 58 Human Genome Initiative, 43 Hunt, Alan, 14, 177; on constitutivism, 14, 97; on consumption, 173; on social relations, 174, 176 ideology, 120, 136, 183; Alan Hunt, 14; Althusser, 21; reflected in Foucault, 23; Eucharistic, 53; with race and class, 66; Black Power, 100; of integration, 101, 115; Positivism, ix; 121, 148; of globalization, 144; mechanical, 178, of jurisprudence, 193, 210 Indian Reservations, 138 International Institute for the Sociology of Law, 203 jurisprudence; liberal, 75; traditional, 120; sociological, 123 Kafka, Franz, 157 Kelsen, Hans, 120 Kennedy, Anthony, 37 Kennedy, Duncan, 200 Kennedy, President John F., 6, 57, 104, 212, 213 Kennedy, Robert, 6 Keyes v. School District, 114 King, Martin Luther Jr., 6, 104 Klare, Karl, 14, 19, 97 Korzybski, Alfred, 8 law; L.A. Law, 158, 159, 161–163; Law and Economics, 78, 81; Law Enforcement Assistance Administration, 119; law school, 86 Law and Society, 19, 78–79, 82, 191, 208; weakening instrumentalism, 97; constitutive practices, 154; movement, 191–193, 196–200

INDEX

legal realism, 60, 210, 211; and Foucault 23; and The Brethren 59; in socio-legal research 97; and interests 137; version of positivism 148; in The Practice 163; as a brand 193, relies on experience, 207 Lochner v. New York, 51 “logic of the triad,” 149 Lower East Side, xiv, 77, 87–98; gentrification 184 Liberalism, 121 Mabo, Eddie, 15 Mackinnon, Catharine, 51 Malcolm X, 6, 115 “mandarin materials,” 20 Maps, 5, 10, 16, 197; in legal scholarship, xv; positivist view, 9; as territories, 23; and GIS, 204 “Marble Temple,” 62, 63 Marbury v. Madison, 51, 52, 154, 211 March of Dimes, 30, 40, 41 Murphy, Walter, 207 Marshall, Chief Justice John, 126, 154 Marshall, Justice Thurgood, 48, 57, 68, 101 Martin Luther King, 6, 115 Marx, Karl, 186, 187; on rights, 183 Marxism, 169, 176, 177, 181; language, 17; theories of praxis, 19; vaguely Marxist, 21; and feminism, 54; as an alternative to indeterminacy, 99; conference, 182 ’Matz Patrol, 7, 16 McCleskey v. Kemp, 56, 68 Meese, Edwin, 63 Mendoza, Charles, 7 Menlo-Atherton High School (M-A), 6 Merry, Sally, 8, 10, 98, 137, 151–153, 155, 190 Midtown Community Court, 156 Milliken v. Bradley, 114 Mount Lassen, 81 Muller v. Oregon, 51 myth of rights, 78 National Organization for Women (NOW), 39 Native Title, 76 Native American; land, 76 New Mexico, 75, 136, 138; Northern, 75; Spanish land grants, 75; ejido, 120 Nixon, President Richard M.; desegregation, 109 Obama, President Barack, 100, 101 occidental logic, 3 occupation thesis, 119 O’Connor, Justice Sandra Day, 50, 64, 69

217

O’Brien, David, 148 Oñati, 206 police, 82–84, 118, 117–120, 135; on the Lower East Side, 87–90; Baldwin on, 124; shootings, 160, dramas, 161 pornography, 13; women against, 20 Perry, Barbara, 50 plea bargain, 154 Plessy v. Ferguson, 102, 108, 114 police, 119 positivism, 4, 214; in science, 3; in social science, 10; early Wittgenstein, 13; and instrumentalism, 99; legal, 120 Posner, Richard A., 79–80 practices, vii, 214; juridical, 10; professional, 13; cultural, 13; legal, 13; in movement activity, 20 Puerto Rico, x, xiv, xvi, 14, 75, 120, 128–132 racial discrimination, 75 Rambo, 214 rationalization of justice, 167 Reagan, President Ronald, 52, 58 Roe v. Wade, 27, 28, 38, 39, 44 Rogin, Michael, 52 Rosenberg, Gerald, 194 Rosenberg, Julius and Ethel, 18, 66, 67 Rush, Peter, 15 Rust v. Sullivan (1991), 38 Santos, Boaventura de Sousa, 5, 195, 197, 200 Sarat, Austin, viii, 14, 183 San Antonio v. Rodriguez, 114 Savio, Mario, 11 Scalia, Justice Antonin, 56 Scheingold, Stuart, 18, 19 Searle, John, 11 Seeing law, xi, xii, 4, 54, 136, 173 segregation, 104 Shasta; county, 82; mountain, 79 Silbey, Susan, 191, 192 Sierra Nevada mountains, 81 Silverstein, Helena, 13, 195 Simpson, O.J., 149, 155, 166; reaction to the verdict, 101; legal showcase, 167 sites, x, xvi, xvii, 5, 16, 22, 75, 200; of law, 13; of power, 23, 143 sovereignty, 120; of Native people, 125 Stone, Justice Harlan Fiske, 56 sumptuary laws, 177 Supreme Court of the United States, 99

218

television, 146 terra nullius, 15 texts, 195 Thalidomide, 26 Thomas, Justice Clarence, 69, 101, 116 “two bodies,” 52 U.S. Constitution, xiii, xiv, 17, 21, 40, 103, 129, 154, 180; First Amendment, 20; and death, 48–50; and Justices, 60, 63, 65, 117, 148; and territories, 130 United States v. Vuitch (1971), 27

INDEX

Valverde, Mariana, viii Vietnam War, 12, 214 Waltzing Matilda, 190 whaling, 81 Wickham, Gary, vii, 23, 173–175 Women Against Pornography, 21 Wittgenstein, Ludwig, viii, 12, 18 Young, Alison, 15

John Brigham is Professor of Political Science at the University of Massachusetts-Amherst. He has been a member of the Board of Trustees of the Law and Society Association and a Fellow of the International Institute for the Sociology of Law. He is the author of The Cult of the Court and Property and the Politics of Entitlement (both Temple).