• Note from the Editors

      Board, Editorial (2013-03-22)
      The law, once elegant and opaque, tidy when vicious, has lost its simplicity. The humanist's vision of the law, culled from the imagination of Kafka, Dickens, or Dostoevsky, has become in recent years more complex, more mindful of both the coercive and the constitutive power of law. Conversely, the lawyer has come to view the humanities as something more than a mere kindergarten in which the necessary instruments of the trade have been acquired in order to be put to some real use. This mutual recognition has produced a cacophony of voices in law schools throughout the country. Consider these scenes: a professor of civil procedure is baffled by a colleague's paper that seems to be about critical aesthetic theory; a course in contracts gets new inflections from scholars deconstructing Hadley v. Baxendale; a leading law journal mixes "traditional" subjects with postmodern collage "commentaries" and sections on literature and art. Interdisciplinary studies are sweeping away the lines and divisions that once isolated law and the humanities. The lawyer and the humanist, however, continue to eye each other with suspicion, wary to credit the words and authority of an interested observer untutored in the nuances of a jealously guarded field. The dialogue between disciplines has remained impoverished. We propose a journal that will provide a forum for interdisciplinary investigation as its fundamental objective, not as an afterthought to a project with another agenda. Eclecticism alone, however, is a precarious foundation for any intellectual enterprise. Too often boundaries are crossed, genres blurred, for their own sake. We make this assertion from an institutional base in a law school, but our staff is drawn from a broad array of disciplines. We are committed to the belief that this project can survive only if scholars both inside and outside the legal academy are integral to our inquiry.
    • Introductory Letter

      Calabresi, Guido (2013-03-22)
      "You have never read Tacitus?" Justice Hugo Black said to me on the second day of my clerkship with him, "Why, then, you are not a lawyer." He made me drop all else until I had read his own highly and very personally annotated Tacitus. Kant and Bentham continue to battle through the casebooks today as they did when Baron Bramwell in the 1870s said that for the convenience of mankind people must put up with such mischief as due care cannot avoid. Was Captain Vere really modelled on Melville's father-in-law, the great Chief Justice Lemuel Shaw, and was Lemuel Shaw himself greatly influenced by his complicated affine? Do Edwin Meese and Robert Bork have anything to learn from the fact that Athol Fugard's "The Blood Knot" was a dramatically different play a generation ago, when Fugard first acted and directed the play in South Africa, from when he acted and directed it in New Haven recently-even though the words spoken remained the same? Law feeds and is fed by the world around it. Fortunately, that world is at least as aptly described and understood by the humanities as by the social and natural sciences. Hence, and also fortunately, it is impossible fully to understand law without a deep and sympathetic knowledge of the liberal arts. But that knowledge cannot be just background, it must be a fundamental part of legal scholarship. Similarly, many a problem in the humanities (and in the sciences) would be better understood if scholars in these fields knew what legal scholars, and law itself, had said to the issue. This Journal is dedicated to the kind of mutual nurturing between law and liberal arts that is most needed, especially at the highest scholarly levels. No wonder that it is for me as welcome an initiative as any that I have seen in the thirty or so years that I have been teaching law.
    • The Challenge Ahead

      Fiss, Owen (2013-03-22)
      The Yale Law School has a long and distinguished tradition of interdisciplinary work. In fact, sometimes its involvement with allied disciplines has been so intensive and far-reaching as to call into question its identity as a law school. This journal, founded by a remarkable group of students in the Law School and the Graduate School, continues in that tradition, but has created for itself a unique challenge-the definition of its field of inquiry. The law has been cojoined with a discipline, or group of disciplines, or a perspective-"the Humanities"-that itself has no easily ascertained boundary or content.
    • The Law-Literature Enterprise

      Weisberg, Robert (2013-03-22)
      I want to examine here the contemporary American scholarship on the relations between law and literature. Along the way, I will try to evaluate the success of particular efforts within the enterprise, but my main goal is broader. I will try to define the nature and purpose of this multifold academic enterprise, and to examine and criticize the larger claims that American legal academics are making (sometimes implicitly) about law and culture through the very act of asserting the validity of the joint study of law and literature. Very crudely divided, the enterprise has two parts, whose shape and relationship I will discuss at length below. The first part is law-in-literature. This, of course, involves the appearance of legal themes or the depiction of legal actors or processes in fiction or drama. The other, somewhat more amorphous, part is law-as-literature. This involves the parsing of such legal texts as statutes, constitutions, judicial opinions, and certain classic scholarly treatises as if they were literary works. Thus, the law-as-literature critic may assume that there has been conscious authorial control of the semantic and structural complexities of a legal text, and will then subject the intrinsic text to the conventional techniques of "meaning" interpretation normally applied to poems, plays, or novels. Or, somewhat more broadly, and perhaps relaxing the assumption of conscious authorial control, the law-as-literature critic may "situate" legal texts within a culture in a manner parallel to the way literary works are considered parts of a culture's mythologies or moral or spiritual principles. I should note that, though I will be looking at the law-literature connection from a variety of perspectives, in one key way my terrain is very limited: I am mostly concerned with how the connection is seen to benefit the study of law. Thus, I put aside one large part of law-in-literature: the vast, rich work in conventional historical-based literary scholarship-for example, studies of the criminal justice system in Dickensian England- which is done by literary scholars for the purpose of enhancing appreciation of Dickens in his historical and social context. I put this work aside to the extent that it does not purport to be doing the particular critical or innovative things which self-consciously "interdisciplinary" work claims to do. Such work treats law as an essential part of the social and political world in which fictional and dramatic characters live, and it may often treat law as a trope for the social and moral values of the world of those characters; but it does not necessarily self-consciously reflect on the intersection of law and literature as forms of discourse or as intellectual disciplines.
    • Family Feud: A Response to Robert Weisberg on Law and Literature

      Weisberg, Richard (2013-03-22)
      While linked, despite our last names, to no other common ancestor than Adam (for whom he begrudges me my admiration), Robert Weisberg and I agree on so many aspects of Law and Literature theory that we may be said to have familial ties of the interdisciplinary kind. Like my namesake, I have studied literature to the ultimate degree; like him, I have taught the subject to undergraduates and graduate students in literature. So neither of us, as does the occasional upstart, comes to this multifaceted relation anxious only to spew out recently digested (and hence often bilious) matter, usually projected towards others' dust. Nor in discussing (as henceforth) "Weisberg's work," "Weisberg's approach," etc., can I wholly avoid the sense of self-critique or mirrorwatching that must earlier have affected those near namesakes Fiss and Fish in their famous disputations. Like Fish to constitutional theory, Weisberg brings to a kind of settled discourse (a decade of Law and Literature writings) insights otherwise overlooked by the field's practitioners, yet does so with an enthusiasm that barely masks his sympathies for that discourse.
    • Mrs. Packard on Dependency

      Hartog, Hendrik (2013-03-22)
      Elizabeth Ware Packard was born in western Massachusetts in 1816, the child of a Calvinist minister. At the age of nineteen she spent a few weeks in the Worcester State Asylum. In 1839, she married Theophilus Packard, thirteen years her senior, like her father a Presbyterian minister, and her father's close friend. For the better part of two decades Theophilus and Elizabeth lived together in apparent harmony in western Massachusetts. In the mid 1850s, they moved with their children first to Ohio, then to Iowa, before settling in 1858 in the town of Manteno in Kankakee County, Illinois. Meanwhile, Mrs. Packard found herself more and more attracted to "enlightened" and "modern" religious movements, including perfectionism and spiritualism. These enthusiasms in no way distinguished her from many of her contemporaries, who regarded these optimistic and empirical religious faiths as emblematic of the discovery of modern religious truth. But to the more conservative members of Reverend Packard's church, who held firm to the Calvinist bedrock of human depravity and ignorance, her beliefs were literal evidence of insanity. When, in the fall of 1859, Mrs. Packard began to explain those beliefs in presentations before an adult Sunday School class in the church, parishioners began to pressure her husband to have her committed into the state insane asylum.
    • An Obscure Scandal of Consciousness

      Chase, Anthony (2013-03-22)
      This essay provides an introduction to American popular culture, specifically designed to be of use to those interested in evaluating the relationship between law, lawyers, and public consciousness or popular values as they have developed within American society. It is fair to ask from the outset what possible justification there can be for devoting even a short essay like this one to such a project. One could quite easily argue that legal scholarship itself is governed by a popular front composed of orthodox as well as avant-garde scholars, united around a common purpose, equally committed to obscuring the identity and historical profile of those who actually hold power. Does not a focus upon lawyers and popular culture represent merely one more effort to avoid confronting any actual sociology of the system which the rulers manipulate to their advantage? From "strict construction" through "deconstruction," the dominant tradition of American legal writing seems to have been devoted to futile efforts at ignoring social context, within which real power can be analyzed and countered. However oriented, is not writing about the relationship between law and popular culture simply one more example of otherwise unemployable, middle-class intellectuals accepting the transfer payments made possible by the university welfare system in exchange for the kind of obscure and pedantic research which promotes nothing at all save academic careers? Should we not regard popular culture itself as a scandal of at least some sort, a likely source of wretchedness, if not dementia, for any reasonably intelligent person seduced by its cheap attractions and ready allure? The answer to questions like these must be found in the concrete work carried forward by people who write about law, lawyers, and popular culture. My view is that once sufficient time and care have been devoted to analyzing the emerging set of problems and materials which connect the world of popular art and everyday experience to that of legal institutions and practices, it will become apparent that useful contributions have been made to the sociology of culture, including legal culture. Understanding popular legal culture might even make possible more rigorous thinking about the relation between law, politics, and social change in the United States.
    • Communities, Texts, and Law: Reflections on the Law and Literature Movement

      West, Robin (2013-03-22)
      How do we form communities? How might we form better ones? What is the role of law in that process? In a recent series of books and articles, James Boyd White, arguably the modern law and literature movement's founder, has put forward distinctively literary answers to these questions. Perhaps because of the fluidity of the humanities, White's account of the nature of community is not nearly as axiomatic to the law and literature movement as is Posner's depiction of the "individual" to legal economists. Nevertheless, White's conception is increasingly representative of the literary- legalist's world view. Furthermore, with the exception of Richard Weisberg, White has very little competition within the movement itself. This article explores and criticizes that vision. Second, it puts forward an alternative account of how we form communities, how we might form better ones, and how law would function within them.
    • Notes to Amuse a Legal Worker Series 1, No. 1: Reductionism

      (Rumored to be Frances Olsen), Anonymous (2013-03-22)
      In the beginning was the fog
    • Reading for Life

      Nussbaum, Martha (2013-03-22)
      Wayne C. Booth. The Company We Keep: An Ethics of Fiction. Berkeley: University of California Press, 1988. Pp. xii, 534. $29.95. Beaten by his stepfather, cut off from the love and care of his mother, David Copperfield turns for companionship to a company of friends whom the gloomy Murdstones have not had the forethought to suppress: My father had left a small collection of books in a little room upstairs, to which I had access (for it adjoined my own) and which nobody else in our house ever troubled. From that blessed little room, Roderick Random, Peregrine Pickle, Humphrey. Clinker, Tom Jones, the Vicar of Wakefield, Don Quixote, Gil Blas, and Robinson Crusoe, came out, a glorious host, to keep me company. They kept alive my fancy, and my hope of something beyond that place and time-they, and the Arabian Nights, and the Tales of the Genii,-and did me no harm. . . . This was my only and my constant comfort. When I think of it, the picture always rises in my mind, of a summer evening, the boys at play in the churchyard, and I sitting on my bed, reading as if for life. . . The reader now understands, as well as I do, what I was when I came to that point of my youthful history to which I am now coming again. In this wonderful passage (which is even more wonderful read in full), David, the mature author of his own life story, reminds his readers of the power of the art of fiction to create a relationship between book and reader and to make the reader, for the duration of that relationship, into a certain sort of friend. Novels are David's closest associates; he remains with them for hours in an intense, intimate, and loving relationship. As he imagines, dreams, and desires in their company, he becomes a certain sort of person. In fact, the narrator clearly wishes us to see that the influence of David's early reading has been profound in making him the character we come to know, with his fresh childlike wonder before the world of particulars, his generous, mobile, and susceptible heart. And the novel as a whole, in its many self-referential reflections, calls readers to ask themselves, as well, what is happening to them as they read: to notice, for example, that they are sometimes too full of love for certain morally defective characters to be capable of rigorous judgment; that they are perceiving the social world around them with a new freshness of sympathy; in short, that they are taking on increasingly, in the very shape of their desire and wonder, the view of David's father-that "a loving heart is better and stronger than wisdom."
    • Constitutional Fideism

      Mansfield, Harvey (2013-03-22)
      Sanford Levinson. Constitutional Faith. Princeton, N.J.: Princeton University Press, 1988. Pp. xii, 250. $19.95. Pencil in a question mark after the title. Sanford Levinson means to question whether faith in the Constitution, or indeed in anything, is possible. At the end of his book, exhausted by his doubts and by the effort to overcome them, he does subscribe to the Constitution, signing ceremoniously less as a proud citizen than as a "privileged member of the American class structure" (p. 193) who feels guilty about his privileges and hopes the Constitution can be used to subvert them. If this hope comes true, Levinson's faith that the Constitution is more than a mere endorsement and concealment of the American class structure will be justified. But there is no ground for this faith, he believes, in either reason or revelation. Levinson's constitutional faith is like religion in not being rationally supportable, but unlike religion in not being conveyed to us from on high. Since there is no ground for faith, how can there be ground for guilt? But Levinson's guilt is his second skin. He needs his faith to tend his guilt, not absolve it. Better, then, that his faith not be justified. Constitutional faith, as Levinson presents it, substitutes for a nonexistent common good, and even for morality as a whole, which is also nonexistent. His first chapter is on the Constitution in American civil religion, where he develops "Catholic" and "Protestant" views of the Constitution. His second examines the morality of the Constitution, particularly the moral difficulty of respecting a document that seemed to protect slavery. The third is on loyalty oaths and what they mean; the fourth is on the naturalization of citizens and whether the "attachment" of such citizens to the Constitution can be defined; and the fifth, about Levinson's own status as professor of law, considers whether Law Schools should teach respect for the American Constitution (not too much, is his answer).
    • Politics Without Pleasure

      Ross, Andrew (2013-03-22)
      Catharine A. MacKinnon. Feminism Unmodified: Discourses on Life and Law. Cambridge, Mass.: Harvard University Press, 1987. Pp. 315. $25.00 hardcover, $9.95 paperback. Judith Becker and Ellen Levine, the two women who wrote a dissenting statement on the Report of the 1986 Meese Commission on Pornography, pointed out that it was almost impossible, under the conditions of the Commission's public forum, to find people willing to acknowledge their pleasurable consumption and use of pornographic materials. In the light of the "millions of apparently satisfied customers," they added, "it seems obvious that the data gathered [by the Commission] is not well balanced." Even if such favorable testimony had been easier to elicit, it is unlikely to have been welcome, given the Commission's heavily ideological mandate. But such a scenario, with such testimony, gives pause, and raises some wild thoughts. What would the Commission have done with a chorus of diverse confessions and ratifications of pleasure? Would this testimony have compromised or reinforced its conclusions? Does the business of such commissions involve bypassing or overlooking this kind of testimony? Given the restricted purview of liberal law, which addresses considerations of harm, acts in the name of protection and appeals to the concept of negative liberty, the answer to these questions is likely to remain moot. In the case of pornography, however, I think that we ought to imagine what might be learned from a critical inquiry into consumer pleasures. For a start, it would help to address one of the 1986 Commission's own recorded complaints; in a rare enlightened moment born of frustration, the Report notes with regret that virtually all of the historical study of pornography has not been about "the social practice of pornography," but rather about the "control of that social practice by government," and recommends that if the use of pornography is "to be understood fully," then "the scope of thinking about the issue should be broadened substantially."'
    • Jews, Bicycle Riders, and Gay People: The Determination of Social Consensus and Its Impact on Minorities

      Boswell, John (2013-03-22)
      It is written in a Chinese encyclopedia of the Middle Ages that animals are divided into fourteen categories: 1. belonging to the emperor 2. embalmed 3. tame 4. suckling pigs 5. sirens 6. fabulous 7. stray dogs 8. included in the present classification 9. frenzied 10. innumerable 11. drawn with a very fine camel-hair brush 12. et cetera 13. having just broken the water pitcher 14. appearing to be flies from a long way off. Western societies have deployed a variety of strategies to create standards of the "good" to direct human conduct and enforce notions of civic behavior. The nature and sources of these standards as well as their relationships and interactions reveal (and determine) much about the ability of societies to tolerate diversity. A striking example of this is provided by analysis of the effects of such standards on the well-being of two minorities present in nearly every Western society since the Roman Republic: Jews and gay people. It is now "normal" (i.e., within the accepted range of variation) to be Jewish in the United States; it is not yet "normal" to be gay. Although for nearly 1600 years, the two groups have met the same fate at the hands of majorities in Western culture, Jews have achieved "normal" status in most of the modern West more rapidly than gay people. The reasons for this are many and complex, and I will here address only a few bearing most directly on the way modern social consensus about the "good" and the "normal" is formulated and employed, especially by comparison with previous Western systems. Standing within the modern framework one might, of course, posit that the reason Jews more often meet modern standards of public and private good ("normality" and "loyalty") is that they are normal, while gay people are not. It would be jejune to argue that simply because they have notably similar histories there are no differences between Jews as a group and gay people as a group. But as a historian I am not prepared to comment on who is "normal" or "good" or "orthodox" or "moral" in relation to any absolute truth. What I can do is to raise questions about the etiology, formulation, and internal consistency-particularly the extent to which they actually represent the consensus to which they lay claim-of three historical systems of determining and enforcing notions of human "good," and use this to approach the question of why Jews achieved "normal" status before gay people.
    • "One United People": Second-Class Female Citizenship and the American Quest for Community

      Smith, Rogers (2013-03-22)
      The United States has always proclaimed itself the land of liberty, and scholars still usually identify its prevailing political ideas as "liberal" or at least "liberal republican." These characterizations undoubtedly make much sense. Americans would not have replaced English subjectship with the particular political status they created, citizenship in a commercial republic guaranteeing various personal, economic, and intellectual freedoms, if they had not been at least partly guided by the often-intertwined ideologies historians term "liberalism" and "republicanism." Yet while those political outlooks have certainly shaped the laws that have historically constituted American citizenship, their precepts have never been wholly obeyed. America's civic laws have often been starkly illiberal, riddled with racial, sexual, ideological, ethnic, and xenophobic discriminations. Today the worst oppressions have been modified, but all the divisive tensions they expressed remain potent forces in American politics. Most disturbingly, it is still far from clear, even in theory, how a morally defensible body of citizenship laws, "liberal" or otherwise, ought to respond to these forces. In this and other writings on citizenship, I have tried to assist consideration of how American civic membership should be defined in the nation's public laws by offering analyses of how it has actually been legally defined and defended historically. For while Americans have refused to adhere completely to what "liberal republican" principles imply for their civic laws, they have usually felt compelled to justify their apparent departures from those principles. Their justifications provide some indication of the respects in which Americans have found traditional liberalism, especially, lacking as a national public philosophy. Here I wish to continue these analyses by focusing on the types of political ideas, values, and arguments America's governors used to defend gender discriminations in their citizenship laws, and to suggest why those defenses were so effective in a titularly liberal polity. My central argument is that such discriminations seemed legitimate because the tradition of liberal discourse, stemming from the opposition movements of the Enlightenment, paid little attention to personal and communal needs for a sense of meaningful collective identity. Thus classical liberalism said little about what its abstract commitments to universal human rights implied for the ways liberal societies should meet those needs.
    • The Debate over Parody in Copyright Law: An Experiment in Cultural Critique

      Marcus, George (2013-03-22)
      When the cast of Saturday Night Live sang "I Love Sodom" to the tune of "I Love New York," Elsmere Music, Inc., the copyright proprietor of the tune, "did not see the humor of the sketch." It took NBC to court for copyright infringement. This was not a unique case. Motion picture companies had gone after Jack Benny for his parody of Gaslight and Sid Caesar for his of From Here to Eternity. Walt Disney sued the publishers of counterculture comic books and the makers of pornographic films for the parodic use of characters like Donald Duck and Mickey Mouse. The proprietor of the copyright of "Boogie Woogie Bugle Boy" charged that its copyright was infringed by the composers of "Cunnilingus Champion of Company C." The opinions in these cases, and a few others like them, shape a contemporary legal debate about the nature of parody. When does parody constitute a valid defense to a charge of copyright infringement? The responses in judicial opinions and scholarly papers present a curious paradox. The cases are transparently mundane and the impetus for the claims is obviously commercial. Indeed, one commentator noted, "The impact of commercial motivation is heightened by the fact that in our modern society, the commercial motivation is virtually universal." Yet, this recognition appears on the margins of commentary that is usually couched in language more appropriate to discussions of "high culture" works of artistic creation. In assessing the challenging relationship of parody to the idea of copyright, judges and academic commentators consider the high-minded purposes of copyright law in the United States, set out in Article I, section 8 of the Constitution-"to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Moreover, they adopt a rhetoric consistent with this grounding principle that focuses on a mythical Anglo-American ideal-the virtuous individual author who carries out acts of independent creative genius and who is motivated, like all selfinterested persons, by the hope of material or financial reward. The classic humanist view of the artist is only less entrepreneurial. What are we to make of this gap between a rhetoric of copyright that embraces the majesty of the artistic creation and the obvious commercial contexts that have defined case law? Potential answers are located in the realm of mass consumer culture and the relations between copyright law, commercial motivation, and the endowment of cultural legitimacy on the products of mass culture.
    • Review Essay: Loving the Messenger

      Carter, Stephen (2013-03-22)
      What has happened to the civil rights movement? Just a quarter of a century ago, the spiritual and moral courage of civil rights leaders touched the conscience of a nation, which watched while peaceful protesters were beaten and small children were blown to bits. The images demolished the mythology that the system of racial segregation had any relationship to the preservation of civilization and brought about an avalanche of federal and state initiatives aimed at eradicating discrimination. Some of them-the public accommodations provisions of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, to take two prominent examples-worked radical transformations in the fabric of American society. The air was rich with a sense of confidence, and triumph, and loving sacrifice. But something has happened. The civil rights movement, if it still exists at all, has lost its ascendancy among American social movements. It has lost energy, lost purpose, lost popularity. Something has gone terribly wrong, and everybody has a story about what it is. Most of the stories are ideological. For critics from the right, the movement is said to have lost its spiritual moorings, to have sacrificed the glowing principle of color-blindness on the altar of racial preferences. Critics from the left, in one of those fascinating ironies that drive liberal centrists half mad, offer a symmetrical assessment: the civil rights movement has lost ground because it has pressed for more than the society is ready to give. Julius Lester offers a different and quite tantalizing theory. For Lester, the trouble in the contemporary civil rights movement has little to do with its goal, and a good deal to do with its soul. The problem, he says, is that black leaders have tried to appropriate suffering as something unique to the experience of black Americans. This explains why black leaders often seem to see their task as reminding the larger society that it has profited from the exploitation of racial minorities, and then crying racism when the society's sense of guilt proves evanescent or non-existent. In Lester's view, the civil rights movement will not recover its spiritual greatness or its momentum until the leadership of the black community once again preaches to the oppressed that only the inner moral progress of suffering individuals moves the conscience of the society around them.
    • Sex With Guilt

      Freedman, Paul (2013-03-22)
      James A. Brundage. Law, Sex, and Christian Society in Medieval Europe. Chicago: University of Chicago Press, 1987. Pp. xxiv, 674. $45.00. Paul Medieval law was an accretion of traditions from several sources. This is well known, for example, with regard to the historical development of English Common Law. Continental and church law of the Middle Ages was built on a foundation of Roman or Roman-inspired codes and practices and so tended to emphasize statute and authoritative executive statements more than did customary laws. In both its political government and legislation the medieval church was increasingly centralized. Nevertheless, even the church faced the task of reconciling diverse norms and precedents (Biblical, Patristic, Roman, Germanic) that reflected conflicting procedures and social expectations. One might expect medieval canon law relating to sexual behavior to have been straightforward and unyielding, but this is not the case. Because of the interaction of ethical and textual traditions, and the nature of medieval society (which was rather more exuberant than is commonly believed), the development of ecclesiastical regulation was slow and complex. The Middle Ages was hardly unique in attempting to control the manifestations of sexual desire. All societies have both informal expectations and formal rules about sex and marriage. Where they differ, often radically, is in marking off aspects of sexual and domestic relations considered private and thus left to individual conscience or preference from those subject to legal enforcement. Lawmakers of the Middle Ages were surely more willing than those of modern Western societies to control marriage and sexual behavior, but as recent experience shows, the desire for regulation and its targets can change suddenly. Contemporary shifts in outlook and law with regard to abortion, or toward physical abuse of women by their husbands, demonstrate the changes possible in mapping the boundaries of social conformity.
    • Contributors' Notes

      Board, Editorial (2013-03-22)
    • Contributors' Notes

      Board, Editorial (2013-03-22)
    • The Discourses of Mediation and the Power of Naming

      Merry, Sally (2013-03-22)
      Considerable recent scholarship in law, the social sciences, and literary theory has explored the ways law acts as an important site for the construction of meanings, for the creation of authoritative pictures of the way things are. The Critical Legal Studies movement has helped to push legal scholarship to examine not only the effects of law but also its constitutive role: the way it creates a social world through its categories, principles, and assumptions. Scholars in the social sciences as well as in law are increasingly interested in the power law exerts through its constitutive capacity. Law not only constructs authoritative visions of the social world, of course, but also exerts force behind these interpretations. One aspect of the power of law is its ability to establish a dominant way of construing events and to silence others, thus channeling and determining the outcome of legal proceedings. Legal processes can be seen as performances in which problems are named and solutions determined. These performances include conversations in which the terms of the argument are established and penalties specified. The ability to structure this talk and to determine the relevant discourse within which an issue is framed - in other words, in which the reigning account of events is established - is an important facet of the power exercised by law. This article is an ethnographic study of the ways the process of naming in mediation sessions and in the lower courts exerts a form of cultural domination over the people who bring their interpersonal problems to court. Mediation sessions, lower court magistrate's hearings, and lower court trials of family and neighborhood problems are instances of talk in which individuals present images of themselves and events in ways designed to justify and convince. The conversation is a contest over interpretations of ambiguous events. Did the children throw rocks at the neighbor's car, or were they simply playing a stone-tossing game and hit the car by accident? Did someone put a stick through the spokes of a boy's bike as he raced down a hill, or did he run into a stick, lose his balance, and fall? Were the husband's tirade against his wife's slovenly housekeeping and his angry slap instances of punishment or of spousal abuse? It is clearly difficult to determine exactly what happened in these situations and to decide what they mean. Most of the arguments in mediation sessions and lower court hearings about personal problems concern issues of meaning and interpretation, struggles to agree on what these events mean. Disputants couch their descriptions in language intended to persuade, labeling events and explaining actions in terms which they expect will be effective for both the other party and the mediator, clerk, or judge. They interpret their own actions as fair, reasonable, or virtuous and those of the other side as unfair, small-minded, and irrational. Third parties (mediators, magistrates, and, very occasionally, judges) also develop interpretations of the event and of the character of the people involved which they introduce into the discussion. Power lies in the ability to establish one or another interpretation of events and to make it stick with the rest of the group. This article explores forms of talk deployed by people who use the lower courts and mediation programs to handle their interpersonal problems. It is drawn from four years of ethnographic research, including observations of mediation and court proceedings, interviews with parties, and participant observation in several neighborhoods. The research was carried out in two New England towns in the 1980s. The parties in these cases are primarily white, working-class, native-born Americans; it is people of this social background who tend to bring their family and neighborhood problems to the lower courts asking for help. The mediators and court officials who handle them are more middle-class: relatively more educated, affluent professionals who are also primarily white.