LawCulture

Parody and Pop Culture

Thanks for the warm welcome.  I've been an avid (if lurking) reader of LawCulture for some time now and am very happy to be upping the ante by becoming a regular contributor.

I'm interested in parody and pop culture as tools that can help to disrupt discourses that are stuck or recalcitrant to change.  The humor behind parody has great disruptive potential, as does the populist sensibility that informs certain sites of culture.  In the piece of mine that Jessica mentioned in her post, I use a soap opera's parody of patriarchal authority to send up and disrupt the attachment to the founding fathers that arises again and again in contemporary constitutional interpretation, even amongst liberals like Ronald Dworkin.  That the disruption comes from a populist source in the form of a soap opera is a great bonus, as scholars have long been concerned that a lack of democratic authority in contemporary constitutional discourse seems to undermine judicial legitimacy. 

Here's another example I've been thinking about lately.  In a class I taught recently, I used three rock videos to show how pop culture and parody can both support and subvert sex and gender norms.  (Each of these videos is available on youtube.com) We started out with Robert Palmer's classic 80's video "Addicted to Love," (click here to view) in which Palmer fronts a band of seemingly identical, heavily made up women, "playing" instruments behind him, looking vacant and passive, occassionally licking their lips seductively or just appearing as legs, and other body parts, with Palmer singing about how they're gonna have to face that they're, well, addicted to love.

We then looked at Michelle Shocked's parody of Palmer's video, "On the Greener Side," (click here to view)which turns the Palmer video on its head by fronting Shocked and objectifying the boys in the band, showing them posing in bathing suits and so forth, while she sings about how their love is always greener on the greener side.  While Shocked's video highlights the absurdity of the sex and gender norms foregrounded in the Palmer video by exagerrating them and placing them in a different context, her reversal can't hold a candle to Shania Twain's "Man, I Feel Like a Woman."  (That's right, Shania Twain.)  (click here to view) In her video, Twain starts out as the frontman, wearing clothes and adopting poses similar to Palmer's in the original video. By the middle of the video she has stripped off the male costume and transformed into a female, looking much like the women in the original video, perhaps suggesting the absurdity not only of the male and female identities portrayed there, but also of the stability of gender identity itself.  How many more identities might be lurking beneath that costume?  Maybe we'll find out in a subsequent video!  Anyway, doesn't Twain's transformation have the effect of destabilizing identity more fully than Shocked's reversal?

In any case, these videos opened the door for a wide ranging conversation about sex and gender norms that might not have been as available to the class without the assistance of these performances drawn from pop culture.  Thanks to the students for putting me on to the Shania Twain video.

LawFashion

I will be traveling to Baltimore for the Annual Law and Society conference in a couple of hours. Tomorrow, I'll be participating in an Author-Meets-Reader panel to discuss Susan Scafidi's book Who Own's Culture. It's an insightful and fun book to read about the underprotection of certain forms of cultural products (fashion) and the overprotection of others (chemical compounds).

There is so much to admire about Susan Scafidi, especially from where I sit: which is as a newish female legal academic from an interdisciplinary background, who writes about “low brow” things – I write about film, she writes about fashion.  Successfully deconstructing the nomenclature of “low brow” and “high brow” is part of Susan’s successful project.  She points to why cultural products, like fashion, cuisine, quilting are typically not protected in traditional intellectual property regimes, and how – no surprise here for the feminists in the room – these are also typically female-oriented endeavors.  The implication here is that there is a real, material connection between what U.S. law protects and the ideology of gender.

Another thing I like about Scafidi’s book (and Scafidi’s blog, and her scholarship generally) is how unapologetic she is when it comes to discussing things like fashion and food in the context of law and society. Not that I think one should be apologetic – especially in a forum like the Law and Society association. But don’t be fooled – there are plenty of law faculties around the country that would and do turn up their noses at articles written about Louis Vuitton luggage or Lily Pulitzer clothing even if the subject is intellectual property law.  Scafidi has – ironically enough – taken “low brow” issues in a legal academic setting and legitimated them with her fine scholarship and depth of knowledge about intellectual property regimes – much as she says the legal system should do with certain cultural products presently undervalued or unprotected by intellectual property law.

In these ways, Susan Scafidi is admirably bold.  She is also bold in that she is advocating more IP protection in a legal academic world populated by (or at least where some of the loudest talkers are) those who think there is too much IP protection – that the trend in legislative initiatives over the past 25 years to extend and enlarge certain IP protection is deeply troubling from the point of view of protecting the commons. Some will criticize Scafidi for her association of value and legal right: she suggests that if we value certain cultural products, we should protect them through the law. Her critics will say “don’t create more IP rights but decrease the rights available to others.” This avenue, they think, will free up more creative expression, encourage more inventions for everyone’s benefit. They’ll point out that people don’t necessarily need the incentive of IP protection to create, invent or market goods. Society benefits all the time from unprotected acts of creativity and genius.

There are lots of good arguments against this predominantly economic model of intellectual property (some of which Scafidi mentions, some of which she doesn’t). One of which is that whether or not a source community stops engaging in its valuable creative activity in the absence of the extension of intellectual property rights, whether the law grants it legal protection says something about our culture’s valuation of and respect for that creative activity and that source community.  This is an argument about the symbolic function of law, one which Scafidi makes, especially in her concluding pages, but which I think could be made stronger. Insofar as the law serves a modeling function (it being constitutive of social norms as well as reflective of them), protecting the cultural products of source communities can help foster tolerance for and disseminate honest information about those communities and their contributions to society.        

Mommy wars -- a false battle

Los Angeles Times
Rosa Brooks
March 31, 2006

Mommy wars -- a false battle

IN HER MUCH-DISCUSSED new book, "Mommy Wars," Leslie Morgan Steiner likens the tensions between working mothers and stay-at-home mothers to "a catfight." Personally, I think it's more like dueling roosters: a cockfight.
more here.

The Dare Doctrine

With Justices Alito and Roberts now comfortably on the Supreme Court, state legislatures are getting busy. South Dakota has just passed a law making it a crime to perform any abortion, except to save the life of the pregnant woman. The law has no rape or incest exception and no exception for the health the mother.  This bill is uncontroversially unconstitutional. The aspiration of the South Dakota legislators must be that when they swore to uphold the Constitution of the United States (as well as the South Dakota constitution) they were not committing perjury not because the Supreme Court got it wrong 33 years ago when it decided Roe v. Wade, and wrong each time since 1973 when it has reaffirmed a woman’s right to terminate a pregnancy when the pregnancy threatens to harm her body (most recently, three months ago, in November, in Ayotte v. Planned Parenthood of Northern New England, authored by Justice O’Connor). 

I wonder if the South Dakota legislation isn’t also unconstitutional because it calls the Supreme Court into a game of chicken.  “We know you, Supreme Court of the United States, have explicitly held otherwise, but we are right and you are wrong.  We dare you to make us take it back.” (This might be a new constitutional doctrine, birthed here, “the dare doctrine of unconstitutionality.”)  But really, isn’t there a constitutional problem when state legislatures openly defy the Supreme Court of the United States in an effort to egg on its newest members to reverse entrenched precedent? Hasn’t the Supreme Court said as much, and recently, when it chided the New Hampshire legislature for passing a clearly overbroad law (one, interestingly enough, that did not provide for a health exception in the case of a minor seeking an abortion), because New Hampshire was hoping (expecting?) that the Supreme Court would whittle it down to a constitutional size for them?  See Ayotte v. Planned Parenthood of Northern New England (“we are wary of legislatures who would rely on our intervention because it would certainly be dangerous to let legislatures set a net large enough to cast all possible offenders and leave it to the courts to step inside”).

You might say this is what the laboratories of the states are for – to encourage and push change on a national level.  But this is not a case of creative litigation, challenging the doctrine around its edges, or making room in the legal landscape for new and improved technology that changes how we live as a society.  Here, the states are openly defying clearly established constitutional law, depriving its citizens (citizens of both the state and the federation) of constitutionally protected rights. If a state can violate the supreme law of our land with impunity – daring the Court that defines that law to a challenge much like when a child tests her parents by asking “did you mean it when you said 'no'” – what is next? What prevents a state from ever passing a law contrary to clearly established Supreme Court precedent because it hopes (expects) that the Court will someday soon change its mind?

An Olympic Sense of Gender Equity

I learned this week, while watching the 2006 Winter Olympics, that the Olympic Committee has recently rescinded the rule that requires female figure skaters to wear skirts. I have not been able to discover the expressed rationale for the “skirts only” rule (any help would be welcome), although I can imagine that it has to do with skirts being perceived as traditional and therefore appropriate attire for women. And, also, perhaps skirts are perceived as the attire that best exposed the athleticism (read thighs and calves) of the skater.  Needless to say, I am not sorry to see that “skirts only” rule become a dead letter.  Or am I celebrating prematurely?  I also learned that the “pants only” rule for male skaters continues.  Given that the female ice dancers and figure skaters can now dress however (and however minimally) they want, I suggest that their male counterparts should be equally free to express their artistic and athletic abilities through their costume.  But why am I skeptical that we won’t see male figure skaters in skirts (or at least more men scantily clad) any time soon?  Is it because men haven’t been equally liberated? Or, is it because women haven’t really been liberated; they have only become more “free” to be attractive on ice, however that is culturally encoded for the 21^st century?

Daughters rule

The Washington Post reported yesterday on a study suggesting when members of Congress have daughters, they move to the left on women's issues:

Ebonya Washington, the study author, "analyzed the family composition of the 105th Congress (1997-98), as well as how the liberal National Organization for Women ranked each member based on their votes on 20 women's issues. The rating scale ranged from zero (consistently voted against the NOW position) to 100 (always voted in accord with NOW's position). She found that legislators with all daughters have NOW scores that are 12 points higher than those with all sons. Among those with three children, 'each daughter is associated with an increase of nearly 3 points,' Washington said."

Since I have two daughters, I'm not surprised. So, to promote women's rights, I guess we have to encourage our political leaders to have more daughters. A friend of mine, who was determined to have a girl after having several boys, assures me that there are "methods" that increase the chance of having girls. Perhaps we should make them known to right-wing members of Congress? Though I must say, statistics are against us: boys make up a higher percentage of births than girls, overall. No fair.

Signs of a (Diaper) Changing Time

The Sunday New York Times had this article on the trend of providing diaper changing stations in both male and female restrooms.  The story follows a man named Greg Allen who is "compiling a list of public men's rooms in New York equipped with changing tables and using Google maps to pinpoint their locations on his blog, daddytypes.com."  It also mentions a lawsuit brought in 1994 on behalf of a diaper-clad child who was shopping with his father in a Lord & Taylor in Manhattan whose men's bathrooms did not have a diaper changing station (the women's bathroom did have one). The failure to provide equal facilities for men and women was alleged to be a form of sex discrimination.  (Lord & Taylor settled the suit by providing changing stations in both the men's and women's bathrooms so that the issue of sex discrimination was never decided.)

A student of mine brought this article to my attention yesterday after our constitutional law class. (We are in the middle of our unit on sex discrimination, having just discussed Frontiero v. Richardson and United States v. Virginia.) To him, I gather, this article was evidence of change in our culture and, specifically, in society's expectations for men as child care providers (changes wrought by or reflected in civil rights litigation?).  In a later discussion with another student in the same class, the subject of a type of male ennui arose: fathers stuck in competitive and time-restrictive jobs who are encouraged much less (if at all) than their female counterparts to take time off to care for their children.  Indeed, anecdotal evidence of law firm life suggests that men who work part-time to help care for their young children are penalized in the partnership race, whereas women who do the same are praised for agilely juggling work and family.  (Indeed, law firms that advertise as family-friendly tout the fact that they have promoted women to partner who have been working part-time to care for their children. I have seen no such self-promotion on the part of these same law firms with regard to male partners. Have I missed it?)

The diaper changing stations may be proliferating in men's bathrooms in Manhattan, but (call me a cynic) I am unconvinced that this material change reflects changes in our "deeply rooted traditions" of who cares for children and who financially supports them.  Case on point: Next week we study Nguyen v. INS, 533 U.S. 53 (2001) in which the Supreme Court upholds as constitutional an INS regulation that imposes greater procedural hurdles on a US-citizen father whose child is born overseas and seeks US citizenship than on a similarly situated US-citizen mother. The differential treatment is justified, says the Court, because of the "significant difference between [the mother's and father's] respective relationship to the [child] at birth" (i.e., the biological difference of giving birth and not giving birth) that can prevent, in the father's case, the "opportunity or potential to develop ... a relationship  ... that consists of the real, everyday ties that provide a connection bewteen child and citizen parent."  Have we come that far when the Supreme Court says the "opportunity for a meaningful relationship between citizen mother and child inheres in the very event of birth," whereas the "meaningfulness" of the father-child relationship requires more work, is less, oh, natural?

Theater as a Woman's World

Of course, it is not a woman's world. But Wendy Wasserstein, who died today at the age of 55, worked with the theatrical form to liberate women in this world.