LawCulture

Constitutional Popular Culture

I spend a lot of time in my constitutional law class discussing with my students how the predominant rule of Marbury v. Madison (that it is the Supreme Court who "says what the law [the Constitution] is" ) is not how things work in practice. Congress interprets the Constitution and implements that interpretation through, among other ways, its section 5 powers under the Fourteenth Amendment (see Katzenbach v. Morgan; cf. City of Boerne), to say nothing of its section 2 powers under the Thirteenth Amendment (see Jones v. Alfred Mayer).  The President interprets the Constitution and implements that interpretation through, among other ways, his "take care" powers (most obviously these days through the current executive's use of signing statements).  State elected officials also swear oaths to the Constitution, promising that their duties be discharged in conformance with that supreme document, which would presume thoughtful attention to what that document demands (what it means).

I would guess that many of us have not sworn oaths to uphold the Constitution, but that does not preclude us from interpreting it and making it meaningful in and through our daily lives. Indeed, as many constitutional law professors can probably verify, law students come to constitutional law class misbelieving the scope of their constitutional rights. What contributes to that misbelief?  So much of our every day life, our popular culture, advertising.  See this company, for example, whose advertisement I pondered on the way to work. Against a red, white and blue background, the ad copy read: "Divided We Stand, United We File." It had a picture of two wedding rings, one plain the other diamond-laden. And then it said underneath the rings and next to an image of the cracked liberty bell, "We, The People."  I had no idea what the ad was for -- gay marriage (was this about tax fraud, filing federal forms seperately and state forms jointly (at least here in Massachusetts)? A ballot initiative?  I got to thinking about all the ways these ubiquitous phrases could be meaningful. When I finally made my way to the front of the subway car, I saw it was a document filing service. What??

The language of our constitutional polity -- united and divided (federalism?), "we, the people," (democracy and individuality) -- circulates everywhere, consciously and unconsciously. Perhaps this is just too obvious for most readers, but as I slog through some difficult cases with my constitutional law students, I am reminded by them that this constitutional law stuff feels unfamiliar to them, strange, difficult -- at least the constitutional law stuff we talk about in class. The "We, the People" advertisement, well, they knew that one. That one was familiar.  And so I got to thinking more about how their misbelief (usually in the form of thinking we each have broader and more constitutional rights than we actually might) works to constitute a more generous (and perhaps more contentious) polity. For example, invoking the rhetoric of equality and privacy and individual freedom all in bald terms helps claims a stake in these concepts for the on-going vitality and deliberativeness of our society. Whether they are claimed correctly or not does not seem to be what matters. Indeed, contested claims -- more circulation and more varied interpretations of constitutional meaning -- may be what keeps us talking. At least such is the case in my constitutional law class.

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.

Call for Papers: Food, Law and Culture

Chris Buccafusco, a graduate student in the History of Culture program at the University of Chicago, is putting together a panel at the Annual Law, Culture and Humanities conference (to be held in March 2007 at Georgetown Law Center).  His call for papers is here on August 1, 2007 and reproduced below. I would recommend his blog for "gustatory fun" as well. (Anyone who thought writing about law and film was a way out of the legal academic doldrums, consider writing about the regulation of wine classification and recipe copyrightability).

Call for Papers: Food, Law, and Culture Panel

I am currently soliciting paper presentations for a new panel on “Food, Law, and Culture” for the annual Law, Culture, and Humanities Conference to be held at Georgetown University, March 23-24 2007.

Last year’s conference included a handful of “Law and Food” papers in different panels. They were all well-received, and the topics they addressed seem worthy of integration into a single panel. The panel’s goal will be to begin theorizing about the place(s) of food in the law by exploring both the different ways law treats food and the various cultural norms about food that lie behind this treatment. My work, for example, analyzes the copyrightability of recipes through the lenses of aesthetic philosophy and the cultural history of cooks and cooking.

Topics can include, but are not limited to:

Intellectual property rights in genetically modified foods
Hunger strikes and force-feeding prisoners
Last meals
Food torts, e.g. exploding sodas, fingers in chili, coffee in the lap
Government regulation of food and alcohol
Obesity regulation
Animal rights
Dietary laws and regulations in different cultures
Trademark rights in appellations of origin
Farm subsidies and international trade
Linguistic classification of food, e.g. kosher, 1st Growths, Organic
Sumptuary laws
Famine
Labeling, packaging, and branding
Rationing
Food stamps

The deadline for submissions to the conference is October 15, 2006, so please respond well before then if you think you might be interested in joining the panel. Also, please circulate this to any colleagues that might be interested. Feel free to contact me directly if you have any questions or comments.

Gardening and Lawyering

I'm preoccupied with the city of Boston, these days, perhaps because I have looming deadlines that I am avoiding, perhaps because classes begin in three weeks and I am looking for a distraction. In any case, as I was walking to work this morning through the Boston Public Garden, I was struck by the sight of palm trees. It seems that the glorious gardners of our public spaces made the most of our gruesome heatwave.  Newly planted among rows of other tropical plants, the miniature palm trees greet you as you walk around the equestrian statue of George Washington. Tickled at the sight of the magnificent General on his horse surrounded by the palm trees, I thought this non sequitur was both humorous and inspiring. It recasts our national hero in new clothes, reminding me that even our founders have to change with the times.  And it helped me recognize how crucial invention and creativity is in our daily lives, in gardening, in parenting, in politics, in law.  (For those of you not familiar with the Boston Public Garden, it is usually planted more traditionally and with local or native flowers, trees and shrubs, perhaps in keeping with the historic nature of the place, perhaps as a sign of the conventional dimension of Boston culture.)  The palm trees also made me laugh and, I thought, were meant to be lighthearted, both crucial demeanors these days (at least for me) in times of war. I am not suggesting that we take the current politics of our times -- our duties as citizens or advocates or teachers -- less seriously. I am suggesting that the need for change is strong; we might draw on our inventive capacities to imagine and make our communities better; good ideas might come from unexpected places (palm trees in the Common, flanking Washington); and keeping a sense of humor is critical to letting those good ideas flow.

Was it something we said?

[The NYT reports on the latest Pew Research Center poll]:

"Global Image of the U.S. Is Worsening, Survey Finds"

Oops.

The bad news: "As the war in Iraq continues for a fourth year, the global image of America has slipped further, even among people in some countries closely allied with the United States, a new opinion poll has found. "

For instance, "Support for the fight against terrorism led by the United States is also down, Pew found. Although strong majorities in several countries expressed worries about Iran's nuclear intentions, in 13 of 15 countries polled, most people said the war in Iraq posed more of a danger to world peace."

The good news: "Many respondents distinguished between their largely negative feelings about President Bush and their feelings about Americans in general."

Why be consistent in footnotes?

I recently spent hours going over a copy-edited book manuscript, and one of the most time-consuming pieces involved trying to make footnote format consistent from chapter to chapter and note to note (this is a book with two co-authors).  And I wondered... WHY AM I DOING THIS? Law professors whine all the time about bluebooking, but let me take the whining a step further: it's not just that particular citation conventions (bluebooking, Chicago Style Manual, whatever) are arbitrary, but the insistence that note styles within a book or article be internally consistent also seems pointless. That is: there is one and only one thing a reader needs in a footnote, right, and that's the ability to go find the source themselves if so inclined. But does the reader give a hoot if footnote 6 lists volume number after the name of the journal, while footnote 45 lists volume number before the name of the journal? Who cares? Is there any non-ritualistic, non-aesthetic reason for any of this?

More about Performance and Confession

I'm continuing to work on a project about filmed confessions. Yesterday, I had a very helpful conversation with several of my colleagues about my theory that all custodial confessions are kinds of performances that enact an identity that may not have existed prior to the confession. Filmed confessions are a subgenre of these performances that have peculiar interpretive problems associated with their filmic nature.

One of my colleagues pointed me to the History of the Peloponnesian Wars by Thucydides where, among other things, Thucydides attempts to set himself apart from other chroniclers. Considered the first "historian," he claims to be telling a story about the Peloponnesian Wars that are empirically verifiable. With this claim, it is said, he is the first to draw the line between myth or  stories and history. What is interesting about Thucydides for the purpose of my concerns about confessions as a form of performance (narrative storytelling that enact identities, bring them to life) is that Thucydides' history -- despite its reliance on empirical data -- is recounted in dramatic form, much in the style of Homer's Odyssey or Sophocles' Oedipus.  The History of the Peloponnesian War, considered one of the first "modern" histories (not only because of its emphasis on verifiable fact but also because of its emphasis on human causality as opposed to divine intervention), is structured around orations and speeches, all in the Latin hortatory subjunctive case.  In this way, much of the "history" told is recounted in a first person dialogue among statesmen that is clearly performative in nature -- presenting an argument or declaration to a crowd of citizens. (The Latin hortatory case, I am learning, is a form of the subjunctive that delineates or signals a speech, a kind of presentation or claim to an audience. Like generic markers "Once upon a time..." or "It was a dark and stormy night...", the Latin subjunctive signals to the audience that a particular kind of speech is about to take place.)  A wonderfully ironic detail of this history is that Thycidides admits that he is recalling the speeches and many were told to him second hand. The "hearsay" quality of the speeches throws their veracity into doubt and their inclusion, nontheless, suggests Thycidides is very concerned with helping bring the history alive, to an audience -- to reconstitute it for the present.

So I began doing what my friends in comparative literature do, wondering aloud how much Thucydides' form and purpose have in common with filmed confessions.  What are the markers of the filmed confession that are like the Latin hortatory case? (There are many, many commonalities among filmed confessions that signal the fact of film, the larger audience the film engenders, the self-conscious nature of filmed speech.) And how are the purposes of the filmed confession and the uses to which the confessions are put similar to the motivations behind Thucydides' new theory of storytelling, that is "history"?  (Confessions are filmed, for the most part, to "record what actually happened" in the precinct house.)

Shampoo Girls

My LA Times columns often generate nasty emails. My favorite for the week is this one from someone identifying herself as Mary Simpson. It arrived this morning, apparently in response to Immigration- The Game:

"Regarding your "Let reality games begin for members of Congress" editorial, it figures that someone with your opinions on imigration would be named "Rosa."  I'm glad Mr. Brooks was progressive enough to marry the shampoo girl from his hair salon, but I would advise him to keep her on a shorter leash."

That comes a close second to my other favorite theory about the origin of my name: the parent of one of my Harvard classmates asked my mother if I had perhaps been named "for a favorite maid."

Actually, Mary, the truth is even worse... I was named after Rosa Parks and Rosa Luxemburg.

Legal Sculpture

I had the pleasure of attending many interesting panels at the Ninth Annual Conference of the Association of Law, Culture and the Humanities at the University of Syracuse College of Law this past weekend. A paper that stood out for me -- perhaps because it took as its object something I had never considered in my studies of law and culture -- was about the Sissons/Morrow Collection of Canadian Inuit stone carvings.  Justice Sissons was a Canadian judge who presided over disputes in the Northwest Territories in Canada. During the adjudication of one dispute (about a man who was accused of murdering his father, but who explained his father's death as a kind of euthanasia and as part of his Inuit tradition), the defendant carved out of stone a sculpture of Judge Sissons and the defendant facing each other across a small bench. Both are dressed in hooded, fur-lined coats. The judge was very big and the defendant very small.  The carving (and trial) took place in 1956. The defendant was found not-guilty. The defendant gave the carving to Judge Sissons. The receipt of this carving spurred Sissons' collection of many other such carvings, most of which are on exhibit in Toronto.  Shulamit Almog, of the University of Haifa, presented a paper on this collection, analyzing the sculpture as legal cultural objects. She addressed the unique aesthetics of sculpture, generally, and the poetics of these sculptures specifically. In particular, she considered how the collection both constitutes and is one result of the imposition of a new legal order in the Northwest Territories. We can regard these sculptures as a "translation" of the legal process by Inuit populations, newly subject to the Canadian legal system. We can also regard the sculptures -- especially as they form a collection -- as constitutive of the heterogenous community (with its conflicting narratives about right and wrong, necessity and chance) that was forming in the 1960s and 1970s in Canada.  Dr. Almog's paper left me very curious about the life of legal sculpture around us, be it "legal architecture" (courthouses, law schools) or art (The Rape of the Sabine Women, comes to mind, as does the David).  Questions about how we might theorize the sculpture's "point of view" (an intriguing question posed to Dr. Almog by Professor Naomi Mezey), its capacity to address an audience,  its (non)mimetic qualities (texture, size, dimension), and its craft generally make sculpture a rich (and to me, still enigmatic) cultural manifestation of law.

To: [email protected] Subject: Why It's All About Me

Here's a piece from today's NYT. I'd be interested to see how others react to it.

The New York Times

February 21, 2006

To: [email protected] Subject: Why It's All About Me

By JONATHAN D. GLATER

One student skipped class and then sent the professor an e-mail message asking for copies of her teaching notes. Another did not like her grade, and wrote a petulant message to the professor. Another explained that she was late for a Monday class because she was recovering from drinking too much at a wild weekend party.  [Read the rest here].