Legal Radicals in Madonna's Closet: The Influence of Identity Politics, Popular Culture, and A New Generation On Critical Legal Studies

Stanford Law Review
Legal Radicals in Madonna's Closet: The Influence of Identity Politics, Popular Culture, and a New Generation on Critical Legal Studies Sexy Dressing Etc.: Essays on the Power and Politics of Cultural Identity by Duncan Kennedy Review by: Naomi Mezey Stanford Law Review, Vol. 46, No. 6 (Jul., 1994), pp. 1835-1861 Published by: Stanford Law Review Stable URL: http://www.jstor.org/stable/1229172 . Accessed: 29/05/2013 23:02
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BOOK NOTE Legal Radicalsin Madonna'sCloset:The Influence of Identity Politics, Popular and a New Generation Culture, on Critical Legal Studies
NaomiMezey*
SEXY DRESSING ETC.: ESSAYS IDENTITY.
By Duncan Kennedy. Cambridge,Mass.: Harvard University Press. 1993. 258 pp. $24.95. In this booknote, Naomi thecontent Mezey explores both and thecontext ofSexy Etc.:Essays onthe Dressing Power andPolitics ofCultural Identity, byDuncanKennedy, a leading inthecritical figure legalstudies (CLS) movement. Ms. Mezey sees Kennedy as engaged in tworelated projects: refirst, to criticisms sponding of CLS byfeminist and critical race theorists, and second, revitalizing radicalleft thought fora newgeneration ofculture-consciousscholars.Ms.Mezey focuses on Kennedy's analysis ofthe popular performer Madonnain orderto discusshowpopularculture can be a sitefor strategic reinterpretation oftraditional narratives aboutraceandgender that in turn thelaw and legaltheory. influence Ms. Mezey suggets that grappling with notonlyoffers pop culture cluesabouthowcommunities define themselves, butcan also add vital forceandattractiveness to radicallegaltheory.
ON THE POWER AND POLITICS OF CULTURAL
is a cultural tity, andpolitical battleground, already scarred andsmoking from debates ongoing about race, class,andgender, about lawandlegalentitlements, about power andideology. In thescantily cladnarrative persona ofa (radical) American Gladiator, Kennedy traverses this terrain with audacity andskill, ex* Third-year student, Stanford Law School. I wouldliketothank a number ofpeoplewhohelped me to formulate earlyideas or to refine thoseideas with comments on drafts: Matthew Paul,Melinda Sarafa, Jason Loviglio, TomGrey, Janet Halley, MarkKelman, Bob Gordon, Peggy Radin. Thanks also to thesensitive editing work oftheStanford Law Review NotesDepartment. Without thetime afforded by an unsuccessful danceaudition forMadonna's1993 WorldTour,thisnotewouldneverhave been written.
book, SexyDressingEtc.: Essays on thePower and Politics of CulturalIden-
Behind theprovocative andglossy bookjacketofDuncanKennedy's new
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ploring points of intersection and invariably among thesedebates stirring up newcontroversy. The very composition of thebook,four previously published essaysby a well-established scholar,' suggests thethreshold question: Why a book? More specifically, whythis bookof these essays?WhileKennedy claims that each essayis an attempt tolocatea placefor inidentity theradical intellectual politics,2 both thestructure andcontent ofthebooksuggest that he is doing much more.I propose that twolarger projects thread thiscollection The together. first, which I address in PartI, is a response to thecritiques of critical legal studies (CLS) posedbycritical racetheory andfeminist I discuss the theory. substantive critiques of CLS voicedby these schools,3 as wellas theless-articulated "deauthorization" ofCLS that thesaliency ofthese theories I implies. lookmostly to thestructure andrhetorical tropes ofthebookto identify Kennedy'sresponse to these challenges. The secondand more substantive of thebook,which I takeup in project PartII, is a revitalization of critical legalstudies specifically, andradical left theory generally, aimedat a newgeneration of (potentially radical) MTV-bred intellectuals andlegalscholars. I contend this that is mainly retooling methodological, finding in popular culture interpretive inspiration-a placewhere the larger socialandpolitical systems reproduce themselves, as wellas where they encounter resistance andreinterpretation. I deal substantively with thebook's final andcentral essayon sexydressing, focusing on Kennedy's discussion of Madonna.I conclude thesection byexamining motives Kennedy's for making theradical intellectual into a postmodern cultural theoretician andbydiscussing thevalueof cultural in legalanalysis interpretation and scholarship. Thisinlinks I andII byidentifying quiry Parts popculture as a vital placeof subculture formation anda point ofdynamic dialogue between the lawandsomeofits mostrenegade subjects.
I.
DELEGITIMATING THE DELEGITIMATORS: CLS AND ITS CRITICAL ALLIES
A. A Sketch ofCritical Legal Studies In theorganizing letter fortheir first formal gathering, the"founders" of critical legalstudies (including Kennedy) tobring sought together left intellectuals whoviewed lawas "aninstrument ofsocial, economic andpolitical domination."4 They wanted to demonstrate "all the myriad waysin whichthe
1. See Duncan Kennedy, A Cultural PluralistCase for Affirmative Actionin Legal Academia, 1990 DUKE L.J.705; DuncanKennedy, Radical Intellectuals inAmerican Culture and Politics, or My Talk at the GramsciInstitute, 1 RETHINKING MARXISM 100 (1988); DuncanKennedy, Sexual Abuse, SexyDressingand theEroticization ofDomination, 26 NEWENG. L. REV. 1309 (1992); DuncanKennedy,The Stakesof Law, or Hale and Foucault!,15 LEGAL STUD. F. 327 (1991). 2. P. viii. 3. For thepurposes of thisreview and thesake of simplicity, I treat bothcritical race theory and feminist theory as beingmorecohesiveand intellectually unanimous thaneither is. actually 4. MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 297 n.1 (1987) (quoting theorganizing letter).For a moreextensive discussion of thecritical legal studies see generally movement, Duncan Kennedy & KarlE. Klare,A Bibliography ofCritical 94 YALE L.J.461 (1984); SympoLegal Studies, sium,CriticalLegal Studies 36 STAN. L. REV. 1 (1984). Symposium,
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system was nota setofneutral available toanyone whocouldseize techniques of control its leversand pulleys buta gameheavily loadedin favor of the wealthy andpowerful."5 Sincethen, CLS has beenguided that bythebeliefs is always legaldiscourse a political that law is never andthat practice, neutral, thepolitics of law areunnecessarily conservative. The rhetoric ofjustice, order,andbenevolence naturalizes thecoercive oflaw so effectively power that evenliberal in perpetuating thelegalsystem.6 skeptics participate Thisview, even (and sometimes that theliberal critics of law participate especially) in reproducing and legitimating law's most coercive has given riseto a aspects, vituperative CLS critique of liberalism's basicpremises.7 Although influenced by bothLegal Realismand Marxism, critical legal scholars to movebeyond sought theorthodoxies of each school. Where the Realists hadidentified the poststructuralist notion oflinguistic indeterminacy as thebasisfor doctrinal has no stable indeterminacy (iflanguage how meaning, can we expect defined legaldoctrines theinstabylanguage to?),CLS located oflegaldoctrine inthephilosophical bility contradictions oftheliberal system; of a given anyjustification or institution practice was always itsapunstable, parent harmony precariously secured onlybysuppressing one sideofthecontradiction andprivileging theother.8 thecontradictions Exposing that structure liberal legalthought was theparadigm oftheCLS method.9 WhiletheRealists' relativism tended toward political complacency,'0 crits(as theystyled themselves) advocated a normative largely of radical position egalitarianism. In fact, intheCLS movement, early Kennedy defined the radical as "the person whowants togofurther, right now, practically, todismantle existing structures of hierarchy that lookevil,andwants to gofurther, right now,practically, in or subverting theforces confronting that keepthem in place."11 From Marxism, CLS inherited an emphasis on classanda vision oflaw as of theideological part machinery by which thecapitalist ruling class secures control overthemeans ofproduction andharnesses state power to maintain its position. Butcritical legalscholars, including Kennedy, havecriticized orthodox Marxism for itsrigid categorization ofbase (economic forces) andsuper5. Robert W. Gordon, NewDevelopments in Legal Theory, inTHE POLITICS OF LAW: A PROGRES413, 415 (David Kairys ed., rev.ed. 1990) [hereinafter POLrrICS OF LAW]. 6. See Robert W. Gordon, Brendan Brown Lecture: Critical as a Teaching Legal Studies Method, 35 Loy. L. REV. 383, 384 (1989). Incidentally, Gordon credits an essay Kennedy wrote whilestillin law schoolas thefirst piece of "authentic" CLS scholarship. Id. at 393. 7. Kelman defines liberalism as "a very looseterm for thedominant postfeudal beliefs heldacross all buttheleft and right fringes of thepolitical spectrum." KELMAN, supra note4, at 2. 8. See id. at 12-13. According to CLS, one can characterize liberal legal thought by itsembodiment of three setsof contradictory commitments-to boththeRule of Law and ad hoc standards; to bothsubjective valuechoicesandobjective of "truth"; knowledge andtobothintentionalistic anddeterminist discourse-andby itsnormative privileging ofone term in eachof these conflicting pairs. Id. at 3-4. 9. The application of thismethod is bestillustrated by DuncanKennedy, Formand Substance in PrivateLaw Adjudication, 89 HARV. L. REV. 1685 (1976), and WilliamH. Simon,TheInvention and Reinvention of Welfare Rights, 44 MD. L. REV. 1 (1985). 10. Gordon, supranote6, at 386-89. 11. DUNCAN KENNEDY, LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY: A POLEMIC AGAINST THE SYSTEM 81 (1983).
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structure (theciviland socialinstitutions, including law,which ideologically to a struggle beof all interests thebase),as wellas foritsreduction justify hasfound inparticular the overcapital.12 tween andowners workers Kennedy that itexposesvarious mechaof capitalism useful critique onlyto theextent andinequality.13 nisms of oppression oftherea more From Antonio Gramsci, CLS borrowed complex analysis baseandsuperstructure, between thecoercive ofthe lationships between power of civil Gramsci's influential stateand thepersuasive power society.Using of of hegemony,14 CLS recognized thetremendous notion ideological power the consent of the To law,culture, religion, andeducation to gain oppressed. andtolegitithegovernment willsafeguard their interests persuade peoplethat for mate claims ofjustice, thelawmust sometimes comethrough people(inthe of sexualharassform or therecognition of civil rights laws,forexample, ofthese Butcritical which areskeptical ment).15 legalscholars "rights," they to buttress a vision ill-enforced madeonly ofa argue often represent promises and to securetheparticipation of thosewhomthe state benevolent system of thesocialorder otherwise thelegalmaintenance keepsdown. By making andevenjust,law helpsconvince look neutral, natural, subordinated classes is thebestoption forprotecting that thestate their interests.16 out By doling a falseconsciousness dubious thelaw encourages subordinated rights, among and secures their in their ownoppression. As I discuss groups participation this CLS position onrights hasdrawn from heated criticism critical below, race andfeminist scholars.17 So farI havebeenreferring to "thesystem" and"thelaw" as ifthey posof thepeoplewhobelievein them, sessedsomeinstitutional outside agency work with anddailyrecreate them, them.Butthisis thepoint of hegemony: They do not. The question therefore becomeshow the law operates to in SexyDressing reproduce social inequality. Kennedy tackles thisquestion Etc. in his chapter aboutRobert Hale and MichelFoucault, a chapter which seemstorepresent both a rearticulation oftheCLS commitment toclassanalysis anda departure from suchanalysis bybringing suchanalysis into thefold of identity politics. In discussing Hale andFoucault, Kennedy combines thetheoretical insights ofLegal Realism andpoststructuralism to describe howlegalground rules determine thedistribution ofwealth, power, andaccesstoknowledge. Thelaw's distributive power operates so effectively because theground rules arethose of
12. Id. at 86-88. 13. Id. at 86-87 ("I'm notsaying that capitalists don'texist, or that don'toppress they but others, just thatthisis onlyone in thelistof modesof oppression, and no longer, if it everwas, thecentral one."). 14. By hegemony Gramscimeansthe exerciseof statepowerby consent of the subordinated classes rather thanby direct discipline.See ANTONIO GRAMSCI,AN ANTONIO GRAMSCIREADER: SELECTED WRITINGS 1916-1935, at 189-221(David Forgacs ed., 1988); ANTONIo GRAMSCI, SELECTIONS FROM THE PRISON NOTEBOOKS OF ANTONIo GRAMSCI 242, 245-46 (Quintin Hoare & Geoffrey Newell Smith eds. & trans., 1971). 15. Gordon, supranote 5, at 417-18. 16. Id. at 417-19. 17. See textaccompanying notes24-28,35-38 infra.
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rather various permission than prohibition (for example, granting permissions to injure).Theyregulate butpervasively because inconspicuously they appear nottobe rules at all.18As Kennedy "Theinvisibility oflegalground explains, rules comesfrom thefact that when lawmakers do nothing, tohave they appear to do with theoutcome."19 The very of permission, nothing invisibility then, masks howlaw andlawmakers their The lesson exercise influence. ofHale is that these rules notonly ground determine thebargaining oftheparties, power butareproduced the situations condition.20 Both Hale andFouby very they caultconceive of power as always and relational, momentary, dispersed-the "manifold offorce relationships ... infamilies, limited andinstitutions, groups, [that] arethebasisforwide-ranging of effects cleavages that runthrough the socialbodyas a whole."'21 Foucault's nuanced ofpower as pervading theory all sociallife andevenstructuring would for knowledge (Foucault examargue, ple,that power relations condition ourunderstanding offreedom andcoercion) andHale's theory oflegalrules as structuring all economic relationships combinethrillingly forKennedy in "an analysis oftheintersection ofdisciplinary withmarket power."22In other words, Kennedy needs both Hale andFoucault to showhow thelaw (through bothpermission and coercion) structures the distribution ofeconomic as wellas thedistribution resources ofknowledge and power.
B. Challengesto CLS by CriticalRace and Feminist Theorists
of critical Critiques legalstudies bypotential allieson theleft havecome from critical racetheorists largely and feminist theorists.23 Thesecriticisms havebeenexplicit andimplicit, friendly andhostile, andhavebeendirected to both thesubstance andmethodology ofcritical legalthought. Explicit, substantive challenges bycritical racescholars havefocused prion what contend is CLS' wholesale marily they ofrights dismissal as lacking anyconcrete andof rights reality, rhetoric as simply a meansof legitimating
18. Pp. 90-91. 19. P. 91. 20. P. 94 (citing ROBERT HALE, FREEDOM THROUGH LAW: PUBLIC CONTROL OF PRIVATE GovERNING POWER 541-50 (1952)). 21. P. 113 (quoting MICHEL FOUCAULT, THE HISTORY OF SEXUALITY VOLUME I: AN INTRODUCTION 94 (Robert Hurley Books ed. 1978)). trans., Pantheon 22. P. 117. 23. For critical race critiques, see, e.g., Kimberl6 WilliamsCrenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988); HarlonL. Dalton, The CloudedPrism, 22 HARV. C.R.-C.L. L. REV. 435 (1987); Richard Delgado, TheEthereal Scholar:Does Critical Legal Studies Have What Minorities 22 HARV. C.R.Want?, C.L. L. REV. 301 (1987); Mari J.Matsuda, Looking to theBottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987); Patricia J.Williams, Alchemical Notes:Reconstructing Ideals FromDeconstructed Rights, 22 HARV. C.R.-C.L. L. REV. 401 (1987). Forfeminist critiques, see, e.g., CarrieMenkel-Meadow, Feminist Legal Theory, Critical Legal Studies, and Legal Education, or "The Fem-Crits Go to Law School," 38 J. LEGAL EDUC. 61 (1988); RobinWest,Jurisprudence and Gender, 55 U. CHI. L. REV. 1 (1988); K.C. Worden, Note,Overshooting theTarget: A Feminist Deconstruction ofLegal Education, 34 AM. U. L. REV. 1141 (1985).
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unequal power relationships.24 Thesescholars that argue peopleofcolorharthat borno illusions about theprotections rights acknowlafford; they simply toconstrain hard-won sometimes do serve their edgethat and rights oppressors hashelped that rhetoric and Under rights generate political what unity action.25 MariMatsuda callsa "double consciousness," peopleofcolormaypossessan aspirational viewof law,sincerely in theright to equality, believing whilesia cynical viewof law in which arewhatever multaneously maintaining rights thepowerful are.26Thisdouble saythey consciousness maybe indispensable to theradical pragmatism embraced likeMatsuda.You can theobyscholars retically dismiss rights, critical racescholars ifyoucanlivewell contend, only without theconcrete benefits in minimizing thatsomerights overt provide abuse and coercion.27 Rights, are moredeterminative therefore, forcritical racetheorists than they arefor crits.By allowing for a more complex explanation ofminority subordination than simple uncritical acceptance oftheregime, double consciousness also offers an alternative totheCLS notion offalseconsciousness,a notionthat many people of color find patronizing and racetheorists also routinely Critical criticize CLS foritsidealistic claims that and ideologies beliefs produce socialreality and that thought and theoaboveall elsetransform rizing material conditions.29 Critical racescholars protest that racism is notmerely the failed ofthe product ofthose imagination who thechains are notprimarily opposeit,that mental.30 forexample, Matsuda, without theimportance denying of "theoretical co-conspirators," locatesthe force ofchange in theorganized andpragmatic of"those struggles whostrugglebecause they havenochoice, because they cannolonger tolerate conditions on thebottom ...."31 Matsudaand Richard Delgadohave also articulated methodological and structural criticisms of CLS. Matsudachallenges CLS methodologically to lookto thebottom, to thelivedexperience, thecultural andintellectual traditions ofpeople ofcolor.32 Thisbasicstructural critique questions theinsistence by many critical legalscholars (Kennedy in particular) on informal, nonhierarchical organizational models that attempt toavoidthealienation ofexcessive individualism. Delgado points out thatminorities tendto view informality
24. See, e.g.,Delgado,supranote23, at 303-07; Matsuda, supranote23, at 332-42. See generally Williams, supra note23. 25. See Delgado,supranote23, at 305-07; Williams, supranote23, at 412-13. 26. Matsuda,supra note23, at 333-34, 338. "The minority of dual consciousness experience accommodates boththeidea of legal indeterminacy as well as thecorebeliefin a liberating law that transcends indeterminacy." Id. at 341. 27. See, e.g., Delgado,supranote23, at 305-06. 28. Id. at 311. Delgado suggests thata doublestandard existsin theapplication of CLS' false consciousness "If falseconsciousness argument. exists and is so powerful, whyareonlyminorities and workers afflicted by it,and notwhite radicals?"Id. at 312. 29. Id. at 308-09; Matsuda, supranote23, at 345-46; see also Gordon, supranote5, at 422-23 (responding to criticism ofCLS' idealism bypointing outthat, whilemore than "reimagining theworld" is neededforsocial change, such"reimagination . . . is a necessary first step"). 30. See, e.g., Delgado,supranote23, at 309. 31. Matsuda, supra note23, at 348. 32. Id. at 324-25.
untenable.28
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skeptically becauseallocating increases the broad discretion todecisionmakers of prejudice whileeroding structures that likelihood theformal maycombat discrimination.33 CLS itself haslongusedthis when sameargument Ironically, standards criticizing in legaladjudication.34 Feminist criticism ofCLS preceded informs andsubstantially ofthe many critiques employed bycritical racetheorists. While thediscourse CLS regards as a maskfor ofequality andcoercion, havelongrecognized feminists power that therights women in thepublic havegained sphere, whileinadequate and nonetheless than women moreprotection havein pridouble-edged, provide vate.35 contend that critical Feminists legalscholars have"ignored thematerial conditions of many women's andthat, lives,"36 to acjustas CLS has failed for andcoercive count both thehegemonic rolesofracism,37 so hasitfailed to adequately explain an ideology patriarchy, (forwhite women, at least)more law.38Thesechallenges threatening than havebeenmost in thework explicit of cultural or relational whociteCLS' inability to adequately infeminists,39 women'sexperience in theworld.Even CLS' appealing corporate ideal of ona theory ofhuman communitarianism, they say,is predicated as indibeings vidualsfirst-alienated and separated from one another-and as suchis "esandirretrievably sentially masculine."40 Thisbrings me to what I see as theimplicit andgreater challenge to CLS critical race and feminist posedby andto which I readSexy scholars, Dressing Etc.as a response-that crits arenotauthorized to speakunproblematically on behalf of thedisempowered. This deauthorization that suggests there is not a methodological merely or gapin CLS arguments, problem butan existential divideseparating thelivesand discourses of whites and nonwhites, menand women-a divide that not only should not be bridged but perhaps never canbe.
33. Delgado,supranote23, at 314-15,318-19; see also Williams, supranote23, at 406-09. 34. KELMAN, supra note4, at 41. 35. See NadineTaub & Elizabeth M. Schneider, Women's Subordination and theRole ofLaw, in POLITICS OF LAW, supra note5, at 151, 154-57. 36. Phyllis Goldfarb, FromtheWorlds of "Others": Minority and Feminist Responses to Critical Legal Studies, 26 NEW ENG. L. REV. 683, 700 (1992). 37. Crenshaw, supranote23, at 1356-87. 38. Goldfarb, supra note36, at 704. 39. See note23 supra. These feminists use CarolGilligan'swork as a foundation fortheir theorizing, stressing women'sconnectedness, empathy, andcooperation-whether or historically innate and sociallyconstructed-asvalues thatstructure the way womenthink, learn,moralize, and live. See CAROL GILLIGAN, IN A DIFFERENT VOICE (1982). Butcultural feminists are notalonein their criticism of CLS. Catharine MacKinnon, identified as a radicalfeminist, generally statesthat"[t]he lack of of a critique ofgender to [CLS'] critique centrality oflaw andsociety with (indeeditslackofencounter therealworldin general) makesthisschoolless useful to theory thanit might otherwise be." CATHARINE A. MAcKINNON, TOWARD A FEMINIST THEORY OF THE STATE 290 n.18 (1989). 40. West,supranote23, at 2. Margaret JaneRadinhas sounded a fruitful warning against embracing cultural feminism so readily: If you wereluckyenough to be a dominant to dominate groupand wanted and you society, had thepowerto fashion thelanguage in which peoplecouldconstruct their ownidentity and and thewaysin whichthey to other self-conception relate people,how wouldyou construct the perfect subordinate group? Well, I think thatyou would makethemcooperative, emof others, pathetic, nurturing and nonaggressive. self-sacrificing, noncompetitive, Margaret JaneRadin,Reply:Please Be Careful with Cultural Feminism, 45 STAN. L. REV. 1567, 1568 (1993).
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is theconviction that to spanthat in this Implicit challenge attempts experienan illegitimate invasion oftheprerogatives andneeds of tialgulf mayrepresent tospeakfor themselves andtosaywhat mean.To disenfranchised groups they all social,economic, and political to theorize theextent that CLS has tried andacthis subordination, critique essentially says,"You havedonetoomuch havefailed because for toolittle complished youhaveaccounted everything yet forme." to account I see an example ofthisdeauthorizing in extreme in critique (albeit form) incritical RobinWest'sdismissal oftheuse ofthefemale pronoun legalwritbut"empirically andexperientially If a man's ingas well-intentioned false."41 is experientially use ofthefemale then hisaccount pronoun of false, certainly must is also evident thesubordination ofwomen also be false.Thiscritique in forthelack of experiential to correct fem-crit the attempts authority among white menof CLS byemphasizing their that ownconceptual work originates "in being not about The claims dominated, justin thinking domination."42 of in theuse of the"female inherent or voices"from authenticity the voice,"43 an inauthenticity in speaking for thedisempowered. bottom,"44 imply Patricia thedivergence Williams describes in racialexperiences eloquently enough to makeanypotentially universalizing crit pullup short:
It is mybelief that blacksandwhites in thedegree do differ to which rightsassertion is experienced as empowering ordisempowering. Theexpression of thesediffering creates a discourse experiences boundary, reflecting complex and often contradictory societal . . . It is myhope that understandings. in thehistorical redescribing ofrights in blacklives, alchemy thereader willexsomereconnection with perience that partof theselfand of society whose story unfolds beyond the neatly-staked bounds of theoretical legal understanding.45
I do notthink Williams is suggesting willnever that whites understand blacks. Butherassessment of hownecessary andyethowdifficult it is to see things is somber.Becoming simultaneously yetdifferently" "multilingual" is no is that easytask,46 and theimplication CLS is notyetfluent. Andevenif it becomes thetricky multilingual, question remains: Whenandon what terms can CLS speakfor andabout others?47 Between thelinesofmany critiques of CLS by feminist andcritical racescholars is theimplication that, when theo41. West,supranote23, at 2. 42. Menkel-Meadow, supranote23, at 61. 43. Worden, supranote23, at 1142-45. To hercredit, Worden attempts to qualify heruse ofthis term:"I do notacceptthat these'voices' aremutually oressentially exclusive gender specific. Rather, I associatethe'male voice' with the'dominant' andthe'female mode, all those'other'forms voice' with of cogitation and expression that are repressed or invalidated of dominant by thetyranny ideologies." Id. at 1144. Nevertheless, thephrase carries an implication of speaker authenticity based on gender. 44. Matsuda, supranote23, passim. I do notwantto mischaracterize Matsuda'sposition as explicitly deauthorizing CLS. In fact, she offers forhow CLS can improve suggestions its critique by incorporating thestories and experiences of thoseat thebottom.Matsuda'slanguage does, however, suggest that CLS might do well to claimless authority. 45. Williams, supranote23, at 405-06 (citation omitted). 46. Id. at410-11. 47. See LindaAlcoff, TheProblem ofSpeaking For Others, 20 CULTURAL CRITIQUE 5, 7 (19911992) ("In other words, a speaker's location I takeheretorefer (which to their social location, or social
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rizing oppression, women andminorities notonly should be heard from butare themostable andbestqualified to speakforthemselves. It is notatall clearhowfar I havediscussed anyofthescholars would take this Atitsmost extreme this is politically critique. morargument (andperhaps it says that ally) incapacitating; no twoexperiences of language and of the world areeversimilar forus to avoiddoingdiscursive enough when damage another. that "the we speakfor articulation ofourexperience Assuming is part of ourexperience,"48 foranother is more than speaking It justpresumptuous. maybe at theroot ofcommon evenimperialism.49 indignities, violence, A less severe alternative is one that I readin theWilliams passagequoted above. It acknowledges thepremise described byLindaAlcoff that "[w]hois is a result, whois spoken speaking, of,andwholistens as wellas an act,of Butitdoesnotcategorically political exclude theprivileged struggle."50 from thesubordinated; about or with it implies speaking that theboundaries rather, willchange of speaking for another with thecontext.5' While this theory genthat assumes can givea primary erally account onlythesubordinated of their itdoesnotpreclude others from subordination, about that subordinaspeaking tion or fromfighting such alliancesare neverunagainstit. However, theprivileged to paykeenattention problematic; they require to thehistorical that thedisempowered can provide redescriptions of their livesand of their communities.
C. Kennedy'sResponse
Etc. is partly a response and implicit SexyDressing to theexplicit chalto CLS posedbycritical lenges racetheory andfeminist legalscholars. It is a in itsvery bookthat structure thefractured confronts andcontested identity of critical that these havehelped legalstudies challenges As onecritic engender. of CLS has noted,
CLS is in a process of shift. Just as ithasrecognized thepostmodern lesson that thedominant methods andtheories of traditional legalculture have attained and maintained their stature of power rather by virtue than so truth, CLS has cometo understand that someof itsdominant methods andtheories haveattained andmaintained their stature via thesamedynamic.52
identity) has an epistemically significant impact on that claimsandcan serveeither speaker's to authorize or disauthorize one's speech."). 48. MariaC. Lugones & Elizabeth V. Spelman, Have WeGota Theory forYou! Feminist Theory, " 6 WOMEN'S STUD. INT'L F. 573, 574 Cultural Imperialism and theDemand forthe "Woman'sVoice, (1983). 49. See Alcoff, supranote47, at 17; see also GillesDeleuze & MichelFoucault, Intellectuals and Power, in LANGUAGE, COUNTER-MEMORY, PRACTICE: SELECTED ESSAYS AND INTERVIEWS 205, 209 (Donald Bouchard ed., Donald Bouchard & Sherry Simontrans., 1977). 50. Alcoff, supranote47, at 15. 51. Some scholarsadvocateanalyzing a given act of speakingfor another to the according speaker'smotive, whileothers advocatefocusing on theeffect of the speech. CompareLugones& Spelman,supra note48, at 576 (stating thattheonlyappropriate motiveis thatof friendship) with Alcoff, supranote47, at 26 (arguing inevaluating that instances ofspeaking for others we must lookto theeffects of thewordsand thecontext). 52. Goldfarb, supra note36, at 709 (citation omitted).
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This is a humbling fora schooldedicated to radical diagnosis egalitarianism and theeradication of socialhierarchy. is halfevasion. Kennedy's response He confronts these andgestures to hiscritics, challenges buthis welcomingly is ambivalent; he resists hospitality orpolitical yielding anyrhetorical ground. Although Kennedy wants to defend theattacks identity politics ofless against receptive hisendorsement crits,53 is lessthan wholehearted. Thispresents one ofthedilemmas the howtoshare running through without book, namely power toomuch, howto welcome actually losing a challenge to your withauthority out losingall authority. must thisparadox:howto grant Kennedy navigate others theauthority to speakwithout either theauthority to distribute asserting inthefirst discursive power all authorial placeorabnegating and responsibility Thisis a position in which prerogative. onecan never andso it fully succeed, is noteworthy that does notexactly fail. Kennedy Theorganization ofSexy Dressing Etc.responds tothebroad directly claim of inattention to issuesof raceand gender.The first introduces the chapter questoftheradical inpostimperial intellectual while thenext America,s4 three tackle thetriptych chapters ofrace,class,andgender. In thechapters on race ("A Cultural Pluralist Case forAffirmative in Legal Academia") Action and gender ("SexualAbuse, SexyDressing, andtheEroticization ofDomination"), Kennedy appealsnotonlyforinclusion of minorities andwomen in majority institutions, butalso for them providing accessto knowledge with andpower within thebodiesthat determine inclusion and exclusion. Yet it is precisely here thetension that Thewords ofthebookappealfor emerges. theinclusion ofthesubordinated in institutions ofpower.The toneofthebook(self-confidently that radical sincere) argues intellectuals likeKennedy should be included in alliances with subordinated groups. Indeed, thebookis a direct assertion of Kennedy's ownplacein thedebate. Kennedy's attacks on merit fetishism55 areillustrative. His arguments for affirmative actionrest partly on the politicaladvantages thatculturally subordinated communities would acquire with greater accesstotheinstitutional resources for necessary power.56 Although Kennedy acknowledges general intellectual debtsin thefootnotes, much of thediscussion consists of his own assertions ofwhat racialminorities needinthecontext most ofaffirmative action.57Whilehis arguments mirror thoseof manyminority scholars, Kennedy'stendency to avoiddirect attribution showsthat he meansto do more thansimply repeat their views;Kennedy is asserting his authority to make claimson their behalf.At thesametime, Kennedy baseshisdistrust of meron hisown"lived itocracy experience," namely having succeeded according to itslimited criteria.58 Without going so far as tosayheachieved hisplaceinthe world by virtue of his sex andcoloralone,he admits being skeptical of mer53. 54. 55. 56. 57. 58. Thanksto MarkKelmanforalerting me to theinternal CLS critique thisbook presents. meanstheperiodroughly Kennedy from1945 until1970. P. 1. P. 46. P. 35. See Pp. 40-42. P. 36.
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andashamed a system itocracy's standards ofhaving from gained he privilege considers These two the tone suspect. positions helpconvey ambiguous ofthe a toneatonceaggressive anddeferential. also leaveKennedy book, once They ofauthority, andyet againinthe paradox with so much tolearn so much tosay. I do notwantto suggest that Kennedy obscures his debtsto his entirely affirmative critics.He argues that action should notbe thought of as reparabecausesucha conception tends tocharacterize itas a necessary tions butunon meritocracy, a myth fortunate itself that all infringement masks thefact that is ideological, all moves knowledge ofthegamepolitical. Affirmative action, for should notbe a remedy buta strategy for therefore, cultural pastprejudice with racea proxy forcultural pluralism,59 distinctiveness.60 Kennedy's positionseemsdeeply influenced racetheory, with itsemphasis on the bycritical of individuals uniqueconstruction the"historical through of color alchemy" and community.61 In a moodof atonement, and in a gesture to theunique ofothers, "I havecome(belatedly) authority totheviewthat Kennedy admits, American culture and politics are rendered moreintelligible when radically viewedthrough thelensthat intellectuals of colorhaveconstructed overthe SexyDressing Etc. is a kindof atonement, albeitone oddlylacking in It illustrates a distinct in humility. shift Kennedy's In thepast,for position. whileKennedy example, that acknowledged hierarchy distances may"create that arenever he nevertheless asserted that bridged,"63 seems "[i]tsometimes to me thatall peoplehave at leastanalogous of theoppressive experiences of hierarchy, reality eventhose whoseemmost favored by thesystem-that thecollar feels thesamewhen yougettotheendoftherope, whether therope is tenfeet longor fifty."64 Sexy Dressing Etc.,on theother hand, admits that ofoppression arevaried experiences andcontingent. Thus, Kennedy to appears be relinquishing someinterpretive not as anindividual territory only author, but also as one well-situated to do so on behalf ofCLS. Yet Kennedy takes a certain in boldly delight negotiating thebattlefield of identity politics andlegalthought, advancing andretreating strategically. One of modest is histendency retreat example thebookto qualify throughout the from which he can speak-namely position as a straight, white, upper-middleclassman-signifying a partial disclaimer ofa more universal andauthoritative is no retreat. Butthebookitself position.65 Moreoften than itducks not, the important ofauthority question while inall thecurrent authoritatively engaging skirmishes. While political Etc.acknowledges Sexy Dressing andincorporates
59. Culture, to Kennedy, "is bothdeeplyingrained according (not changeable at will, even if overthelongrun)andstrongly changeable differentiating; myability to produce artifacts with meaning is therefore tiedto mystatus."Pp. 66-67. 60. P. 48. Kennedy does notsuggest that this proxy willalwaysbe unproblematic; he describes it as "rough butadequate." P. 41. 61. Williams, supra note23, at 406. 62. P. 56. 63. KENNEDY, supra note 11, at 76. 64. Id. 65. See, e.g., pp. viii,36, 126.
years."62
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toCLS authority, itstill insists on being oftheconversamany challenges part on raceandgender theposition from tion.Evenas thechapters which qualify thestraight, white, maleradical can speak, also stake outa firm they placeat andqualifying, thetableandrefuse deauthorization. Forall hishedging Kenin important nedy wants tohelpredefine theterms ofthedebate ways,66 away ofoppressor andtoward allifrom andoppressed over-simplified relationships and shared radicalgoals. "The ances builton multiple groupidentification willsometimes hopeis that be intimations of post-rage, post-change coalitions itwouldbe liketo havelessofourbeing controlled in spite ofourselves what byourhistories as superiors andsubordinates."67 That Kennedy placeshimself intheeyeofthepolitical storm hiscommitment andhiscourage. demonstrates a humility But it also demands that he can'tquitesustain.It is notthat he should shut he should up,justthat thedilemma of asserting auacknowledge in a debate thority aboutpower.There areno safeplaceswithin theidentity debate becausethere areno neutral identities. To his credit, Kennedy recognizesthisandis notcowedinto silence.Buttaking thecritical raceandfemiof CLS seriously nistcritiques moreattention requires to thehistorical and that experiential thedisempowered offer. Where redescriptions does Kennedy totheir criticisms andattends is inthefertile justice tothevoices ofsubcultures field of popular culture.
II.
REVITALIZATION:
CLS
FOR A NEW GENERATION
A. Retooling Partof thecrisisin CLS that feminist and minority criticism engendered stemmed from CLS' failure toresonate with thevery peoplewhoshould have beenits mostnatural audience and allies. The tone, content, and method of Etc. indicate SexyDressing that CLS should concern itself with another audienceas well: law students andyoung scholars. LikeStarTrek, Kennedy takes CLS in search ofthenext ofa vastanduncharted newintellectual generation, market. Sometimes youcanjudgea bookbydeconstructing itscover, andthis one is a sirensongto thetwentysomething crowd.The bright yellowbook jacketsports ofyoung menandwomen images looking modandmoody, posing forthecamera.The copyon theinsideflapreadslike a manifesto for sophisticated youth: aimis to wedtherebelliousness, "[Kennedy's] irony, and irrationalism of cultural modernism andpostmodernism to theearnestness of correctness. Theresult is a refreshing political alternative both tothestalemate of mainstream andto theself-isolation politics oftheradical fringe."68 Once theradical Kennedy sought nowheis courting fringe; a more mainstream audi66. This impliesa certain paradoxin Kennedy's statement that [i]t is notforstraight whitemento theorize or direct therageagainst us (ragethat is in no wayless validbecausewe identify as leftists). ourselves The point (for us) is to learn to suffer it,control ourinevitable counterrage without groveling, changeto theextent we can,and see whathappens whenthenextgender issuecriesout forcoalition. P. 32. 67. P. 32. 68. Book jacket(on filewiththeStanford Law Review).
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is notjustan effort to reauthorize ence. The book,then, CLS scholarship in light ofraceandgender italsorepresents politics; a larger revitalization project which I see as beingaccomplished through methodological retooling, namely as an interpretive theuse ofpopular culture vehicle.Through through popcultureKennedy gainsaccess to someof thevoicesof thedisempowered and debate with a waytoexplicate howlegal locates within their thelarger culture rules andpower relations themselves getplayed out,reproduced, manipulated, andabsorbed into life. Sexy introduces the contested, Etc. everyday Dressing sexiness of pop culture intotheserious realm of CLS high theory.
B. At Play in Pop Culture
Kennedy's chapter "SexualAbuse, SexyDressing, andtheEroticization of Domination" is themost recent essayin thebook,as wellas thecenterpiece andtitle andis thebestplaceto substantively examine essay, howandwhy he uses pop culture. The chapter howtwodifferent explores discourses explain therelationship between sexualabuseand"sexydressing."69 The first, what callsthe"conventional Kennedy seessexydressing view," as a causeofsexual abuse(thewomen-ask-for-it Thesecond hedescribes approach).70 as the"radical feminist" in which sexualabusecausessexydress, in thesense position, that patriarchy eroticizes theabuseandsubordination ofwomen.7'According to this sexualabuseis a mechanism view, for ofterror thesexualmaintaining ized subordination of women, and women and reproduce erotically express in their subordination sexydress.72 Kennedy's ultimate is whether, question giventhepremises of radical feminism, "it is possible forstraight menand women tobe sexual, toexperience pleasure within theregime, without collaboin oppression."73 rating Kennedy approaches thisquestion by looking at howlaw simultaneously and allowssexualabuse,and howthislegalparadox prohibits influences the balanceof powerbetween menand women, affecting thevery formation of we understand gender ofwhat identity,74 as maleandfemale. He also looksto popular culture-to thesemiotics ofdress, tohowclothing is codedwith social to subcultures of reinterpretation, meaning, and to specific dressing practices that resistance to bothpatriarchal represent and radicalfeminist readings of sexydress.75
69. Kennedy defines as dressthatmanypeople findsexierthanthesetting sexy dressing dictates-wearinghighheelsstyled fornight to workor wearing a bustier in thekitchen. "Sexy dressis of thedresscodes that sexyonlyin terms regulate all social space." P. 163. virtually 70. P. 126. 71. Pp. 126-27. 72. I am elaborating on Kennedy's somewhat initial characterization of theradicalfeminist posiwhich he drawssubstantially from tion, Catharine MacKinnon.See generally CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFEAND LAW (1987) (analyzing theinteraction of sex, and power). violence, 73. P. 127. I think thisis theburning asks after question everyone MacKinnon. reading 74. Pp. 131-38. 75. Pp. 185-208.
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Just as Kennedy showsin thechapter on Hale and Foucault how legal ground rulesdetermine thedistribution of wealth,76 so he showsin "Sexy Dressing" howthelegalrulesgoverning sexualabusedetermine thedistributionofpower between menandwomen.Although thelegalsystem condemns sexual abuseintheabstract, andoccasionally eveninconcrete italso situations, licenses forms ofsexualinjury many without imposing anysanction. (Forexasks us to "imagine ample,Kennedy thenonexistent tort of domestic sexual callsthis harassment."77) Kennedy oflegally condoned abusethe"tolerarray atedresiduum,"78 which affects thebehavior andidentity of all menandwomen,whether or notthey are abusers or victims.79 The tolerated residuum all menbecauseit increases benefits their to bargaining powerwith respect women.80 Anditmaintains malepower as a disciplinary byfunctioning mechanism women whodeviate against from thenorms of female behavior.8' Admirably, doesnotshy Kennedy awayfrom menhave demonstrating why an interest in maintaining a good deal of legally sanctioned abuse. But by analyzing thereproduction ofandresistance tothenorms ofsexydress as well as themodels ofdisciplinary abuseinscribed in popular can culture, Kennedy menultimately arguethat do notbenefit thispower, from and therefore less abuseis actually in their interest. To makethisargument, Kennedy needsa theory of resistance, a notion difficult to formulate a radical under feminist perspective that sees most, ifnot all, instances of female sexualpleasure and sexydressas expressions of the deeperoticization ofdomination for menandwomen.According both to radical feminists, thepatriarchal bargain that women requires giveup their sexual selvesto menin monogamous in return relationships for protection from rape men.82 by other Sexual pleasure, if anyexists, is simply theexpression of women'ssubordination. It is in thisseamless web of domination, where all pleasure is suspect (andall agency seemingly impossible), that Kennedy parts company with radical feminists bytreating women'serotic livesas more than justinstances ofinequality.83 Following theleadofpro-sex, postmodern femi76. Pp. 83-92. 77. P. 135. 78. P. 137. 79. Pp. 137-38;cf.p. 107 (showing how background rulesstructure relationships evenbetween people who do notintend to invokethem). 80. Pp. 145-47. 81. Pp. 147-50. 82. Pp. 150-54. Here Kennedy drawsmainly on ANDREA DWORKIN, RIGHT-WING WOMEN 21-23 (1982), MACKINNON, supranote72, at 225-26,and MACKINNON, supranote39, at 138-54. also describes Kennedy sexualabuse as an enforcement mechanism of thebargain, foritpunishes thefree-riding sexydresser whorefuses to sacrifice autonomy by entering intoa relationship in return forprotection. as Kennedy However, points out,giventhat menabusesomewomen whodo nottransgressthebehavioral norms andthat other women escapeabuseeventhough they challenge thosenorms, thebargain maybe a myth, albeita powerful one. Pp. 173-75. 83. "In one area of our lives,however,-namely ourerotic lives-there has emerged a conflict between theradicalfeminist legal theorists' conception of an egalitarian ideal and women'ssubjective desire." RobinL. West,The Difference in Women's HedonicLives:A Phenomenological Critique of FeministLegal Theory, 3 WIs. WOMEN'S L.J. 81, 116 (1987). For good examples of pro-sex, postmodern feminism, see generally JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVER-
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nists, Kennedy looksat howpleasure can be strategic: "Perhaps thedeepest it seemsthat puzzleis that within pleasure forbothstraights patriarchy, and cansometimes be resistance, gays, evenwhen is basedon thevery thepleasure erotic charging ofdomination andsubmission that looklikemain pillars ofthe regime."84 Somecrucial piecesofthis puzzlelie in everyday in howwe life, in how we perform dresseach morning, ourgender and sexuality. Because Kennedy seems toagree that "corporeal styles" are"cultural fictions,"85 culture is where to lookfor their possible meanings. Fashionmagazines, jean ads, movies, and musicare not a havenfor activities. Evenwhen counterhegemonic they areproduced andgay bywomen men,theseproductions are largely male tastes, gearedto straight and they and disseminate reproduce of theimages and ideasthat many sexual support abuseandmaledomination. Butneither arethey often monolithic; they expose inoursocialandsexual thecontradictions livesandsometimes provide images andoutlets can use powerfully women intheir owninterests.86 on the Seizing in these first potential looksto culture to explain the contradictions, Kennedy "costume genealogies" that, tothe conventional link dress according view, sexy to eroticized domination.87 Thenhe looksagain, at Madonna, to specifically showhowthat eroticization maybe reinterpreted. Costume genealogies givemaleaudiences sexualnarratives with which to decodea particular costume thewearer, (or "look")by linking what through " thecostume she wears, to " 'thesort of woman' alludesto.88Thesenarrativeslink toculturally familiar particular scenarios that arefilled clothing with theinterpretive for both eroticism andabuse. Kennedy locates potential three distinct genealogies or narratives, twoof which with converge theVictoria's Secret One is working-class. with lingerie It begins thestrip-joint catalogue. ofFrederick's sexuality ofHollywood, moves where through it Cosmopolitan, is reformulated for liberal culture inthe1960s, youth andbecomes fully gentriinVictoria's fied Secret.89 Thecatalogue alsoconjures a second that narrative, of Victorian anddeviant upper-class decadence sexuality. "QueenVictoria's secret was that beneath therepressed exterior of nineteenth-century lifethere was 'rampant' illicit sex. The latetwentieth-century Victoria's secret is that she is a middle-class in a conservative professional woman dressed business suitwith'naughty' underwear underneath."90 The final narrative evokesan that "outlaw" with image toys andandrogyny. bondage, discipline, Thisgenealogyruns from chronologically James Dean andMarlon Brando through the Hell's Angels'women, lesbian punk, S&M, Mapplethorpe, andMetallica into
ed., 1984). 84. P. 157. 85. BUTLER, supranote83, at 139-40. 86. See textaccompanying notes116-127infra. 87. Pp. 191-94. 88. P. 189 (quoting In Fashion:Sackcloth HollyBrubach, andAshes, NEW at 78, 81). 89. Pp. 191-92. 90. P. 192.
SION OF IDENTITY (1990); PLEASURE AND DANGER: ExPLORING FEMALE SEXUALITY
(Carole S. Vance
YORKER,
Feb. 3, 1992,
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inGaultier's costumes for high where itappears Madonna andin Karl fashion, for A single item Lagerfeld's ofclothing designs Chanel.91 evokeanyof might theseor countless other each suggesting further narratives, plotdetails:the deflowered the arousedsex slave,the dominatrix. virgin, seems Kennedy to elaborate on thecountless happy cultural of eroticized variations abuse.92 The traditional connections between women's dressand sexualabuseare created andmaintained thecurrency andfamiliarity ofcultural through images and histories. But thesesamecultural codes also allow forchanges to the scripts. inthevery Sometimes mediation ofpopular theincongruity culture, of and dressmakesthecostumes setting look indeed likecostumes rather than sexualscenarios. The effect on theaudience differs dramatically. Kennedy finds thepossibility of a moreliberating of someof thesecodes in reading Madonna. C. Rubbing Up Against Madonna Fewself-respecting cultural critics would go a whole bookwithout addressing Madonna, and Kennedy is no exception. Madonna is theperfect riddle through which toexplore the question Kennedy hasasked:Is heterosexual sexual pleasure possible without participating in theoppression of women?For some, Madonna represents thecrowning moment ofwomen's orchestration of their own objectification and sexualization.93 For others, Kennedy included, she embodies thepossibility of a way out of theviciouspatriarchal circle herowndeft through anddefiant rearticulation andreinterpretation ofthevery images andnarratives that havelinked sexualpleasure andsexydress with the abuseandsubordination of women.94
91. Pp. 192-93. 92. Pp. 193-94. One cannot help suspecting thatKennedy getsoffon thediscussion, muchas JesseHelmslikely enjoyed hiscountless (andsuitably aghast) ofMapplethorpe's showings photography in theSenatecloakroom.However, whereHelms' pleasure was purehypocrisy, it is unclear whether Kennedy'sever-so-slightly salacioustonehas to do withthesexualizedabuse behindtheimagesor simply thepleasure ofcataloging thebrasandbustiers in theVictoria's Secret stockroom orMadonna's closet. Of course,recognizing anydifference between thosetwopositions assumesthepossibility of sexualpleasure outside of abuse. 93. See, e.g.,E. ANN KAPLAN,ROCKINGAROUNDTHE CLOCK: Music TELEVISION,POSTMODERNISM, ANDCONSUMERCULTURE 126 (1987) (describing Madonna'simageas "a crossbetween a bordello queen and a bag lady");SusanBordo, Material Girl,inTHE FEMALEBODY: FIGURES,STYLES, SPECULATIONS 128 (LaurenceA. Goldstein ed., 1991) (arguing thatthe meaning of the imagesin the video MADONNA,OPEN YOUR HEART(No Pictures 1986),are not indeterminate, but are about theobjectificationof thefemale bodyforthemale spectators' pleasure). 94. See, e.g., SUSAN MCCLARY, FEMININEENDINGS: Music, GENDER, AND SEXUALITY 160-61 (1991) (describing Madonna'sstrategic avoidance of conventional "masculine" and "feminine" musical narrativesin the video MADONNA,LIVE TO TELL (Hemdale Corporation/Orion Pictures 1986),as both symbolic and actualsurvival).John Fiskeargues that "ifherfansare not'cultural dupes,'butactively chooseto watch, listen to,andimitate herrather than anyone else,there must be somegapsor spacesin herimagethat escape ideological control and allow heraudiences to makemeanings that connect with their social experience"; Madonna'simage, therefore, is "nota modelmeaning for young girlsin patriarchy, buta siteofsemiotic struggle between theforces ofpatriarchal control andfeminine resistance, of capitalism and thesubordinate, of theadultand theyoung."John Fiske,British Cultural Studiesand Television, in CHANNELSOF DISCOURSE 254, 271-72(Robert C. Allen ed., 1987).
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Kennedy reads Madonna's videoOpenYour setin a peepshow, Heart, for alternative of objectification meanings to those andabuse. He identifies a set of references he believes are operational forthestraight, middle-class white, maleaudience andthat from thesamegenealogies he hasalready cataemerge logued, butwhich provoke much different andreactions. Theserefmeanings erences include socialmarginality, women's masturbation, sexualpower over andfemale ofpatriarchy.95 In explaining defiance theallusion men, tomasturbation, Kennedy positsthat in thevideo-the high-cut Madonna's costume blackbodysuit, fishnet andspike stockings, heels-evokesall three ofthenarratives:Frederick's working-class and the sexuality, lacyVictorian lingerie, biker woman.Butplacedintheoverly ofthepeepshow, stylized stage setting thenarratives alludenotto eroticized sexualintercourse buttotheisolation of magazines, porn arcades, andmasturbation, andtotheir attendant shame, guilt, andembarrassment.96 thesetting invokes Similarly, socialmargins onwhite men'sfear byplaying ofthemalepower that stems from street ofporn andprostitution, culture, and of the black underclass.97 "The same straight whitemiddle-class man for whom thereference to thelower class suggests a sexuality more animal than hisownorthat of 'his' women mayassociate lower-class with fear everything for hissafety, for hissocialstanding, for hissenseofracialsuperiority, for his
self-respect."98
also finds thatthefashion Kennedy codes of thevideorefer tofemale to narratives ofthesexual women canwieldoverthefantasizing power, power in reallife."99 man, "whois a wimp From AdamandEve to TheBlueAngel, thesexualpower ofwomen, still for thepleasure ofmen, nowconemployed veystheopposite (although equally eroticized) ofmalesubordination; message it is themale fantasy of losingcontrol and reason, of beingdominated.10? failsto address However, Kennedy thefact that, although menmayreally be atheart, their ofthepower wimps fear ofwomen hasnot them from kept abusit maymotivate ing women.In fact, abuse. Dress thatimparts to mena offemale message sexualpower cannot be confused with actual power:It remains of themalefantasy of beingdominated. part does Although Kennedy notsuggest that areredemptive these for he doesoffer readings women, them as alternatives totheradical feminist inwhich all thesignals ofsexualreading sexualsubordination.'0' ityare ritualized Yet Kennedy has notescapedthe influence of radical feminism by noting that meneroticize their own loss of that power; strategy maysimply be a necessary ruse ofthe inorder to powerful sexualize their of powerlessness. feelings Women areno more powerful just becauseitturns menon toimagine that are. On theother they hand, of images
95. Pp. 195-200. 96. P. 197. 97. P. 198. 98. P. 198. 99. P. 199. 100. P. 199. 101. P. 200.
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to women.As Kennedy female powerare notinsignificant hopes, they may that will notalwaysreadcultural represent boththepotential maleviewers narratives as authorizing their andthepossibility abuseofwomen that female viewers find than their ownoppression to enjoy. might more final ofthevideoalso treats Kennedy's interpretation it as provoking disinmen, comfort butthis offers a specific source ofsexual liberation reading for women.It suggests that sometimes defiance sexydressing ofthepaconveys triarchal regime andautonomy byasserting Now sexuality simultaneously.102 Madonna's dress "I amsexy, I amevensexual, says, doesnotgiveyou butthat theright to touch me. I am dressed to deny precisely youwhat youthink my dressallows." It signals thecodes of sexydresswithout which permission, alonealters their A number meaning. ofcultural theorists havenoted that Madonna's "sexiness" is rarely tomalefantasies,103 calibrated andKennedy attests to theuneasethiscreates."The sexually autonomous woman is potentially to all menbecause threatening herdefiant existence that no woman is suggests 'true'in thewaypatriarchy that themadonna promises will be true."104 type can expandwomen'soptions Sexy-dressing-as-defiance forself-defined sexualpleasure, or at leastforsexualexpressiveness. Kennedy likesthisbecause it givesstraight menmore as well. It means options mencan havesex with women outside thepatriarchal bargain; it meanswomen maygenuinely desire thesexbecause itis no longer inexchange for protection.105 Somesexual autonomy andpower for women also invites sexualplayandperformance into themiddle-class home, semiotically itfrom freeing "the abusive narratives of thered-light theVictorian district, boudoir, andthemotorcycle gang."106 thelinebetween Admittedly, though, sexydress as an actof defiance and sexydressas a malefantasy of female poweris a fine one. Our ability to negotiate thatline depends on who exercises interpretive control. Kennedy makesclearthat in tactics of pleasure engaging andresistance remains problematic; therealities of inequality andabusemeanthat we cannot escapethe that possibility sexydressing represents coercion rather than gender play:
For bothmenand women, theexperience is compromised becauseit occurs is indeed within, dependent for itsmeaning on,thelarger webofreferences to malesexualabuseofwomen andtomaledegradation inrelation tothem.Itis
102. P. 201. 103. As McClarywrites: [T]he fantasies she enactsare not verysuccessful at beingmale fantasies, if thatis their objective: they often inspire discomfort and anxiety amongmenwho wishto readheras a genuine "Boy Toy." AndI am rather amused whenmenwhoareotherwise notconspicuously withfeminist concerned issuesattack Madonnaforsetting thecause of women back twenty years-especiallybecauseso many girls andwomen (someofthem feminist theorists, including even Betty Friedan)perceive hermusicand videosas articulating a wholenew set of possiblefeminine subject positions. MCCLARY, supra note94, at 149 (citations omitted). 104. P. 203. 105. Pp. 203-04. 106. P. 204.
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sis ("it wouldbe better on balance"), a decision which he knows is risky,1"4 him. He appears betrays to retreat from his idealistic notion of sexualplay becauseof theserious and insurmountable of abuse,onlyto end up realities
107. 108. 109. 110. 111. 112. 113. 114. P. 206. P. 206. P. 207 (citing BUTLER, supra note83, at 30). P. 208. P. 212. Pp. 208-13. P. 213. Pp. 129-30.
dead."113Here Kennedy'sdecisionto employthelanguageof economicanaly-
never just "the truth" toberelied (something the on)that is indeed experience pleasure/resistance rather than instead.'07 something else, something bad, Kennedy also acknowledges thatthe asymmetry of the performance compromises thepotentially liberating effects of sexydressing: The manalways getsto watch, andthewoman Thisasymmetry always performs.'08 implicitly assumes that theviewer's the pleasure andnot dictates the contours performer's oftheperformance. A performer in control, can radically recast the however, oftheperformance. Thisis what meaning Kennedy hopesfor:to getbeyond asymmetry without theerotic; sacrificing to follow in acknowlJudith Butler edging that outside is culturally sexuality power toplayoutthe impossible;109 powerin sex without to have mendresssexilywhilewomen humiliation; "10 watch. all ofKennedy's flirtation with Yet,for thebenefits for women ofpleasure andresistance, hedoggedly maintains hisfocus on what menhavetogainfrom women's sexualagency and from their freedom from sexualabuse. ("Abuse screwswomenup sexually, and that'sbad formen.""1) This approach is initsacknowledgment that men praiseworthy playa roleingender and politics in its insistence thatmenassess that role; Kennedy thatsexual appreciates is not equality just "a woman's The danger is that in focusing thing." on the erotic benefits of women's formen, empowerment continues to reKennedy duce women's to thepower to pleasemen, power within a less only slightly coercive model. But Kennedy is admittedly in a bind: No neutral position exists.To focus on saving from women abusewould sound certainly patronizing. Kennedy wouldargue that on men, he can more by focusing effectively makethecase forwhymenshould be interested in changing therulesof the gamethat govern andsexualabuse. Thatinterest, sexydressing according to is essentially Kennedy, erotic.112 In thelastparagraph ofthebook, however, Kennedy beatsa sudden retreat from anygrandiose theories ofempowerment or of a revolution in men'sand sexualimaginations. women's In thelastsentence, Madonna is no longer the ofsexualliberation, agent buta woman likeanyother, whohasa goodchance ofbeingsexually abused at somepoint during herlifetime. The realthreat of abusethat cloudsthepossibilities of sexualreinterpretation is nowpalpable: "WhenMadonna hurries downthehall at theend of the'Justify My Love' video, smiling toherself, itwould be better on balance that shenotendup ...
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retreats here forthesame indifferent to thehorror. I think sounding Kennedy to straddle thedein other of thebook: He is trying reason he hedges parts andhisradical critics." 5 Andsometimes ofboth a radical mands critique you simply can'tpleaseeverybody. is unableto escapethebindthat from the Ultimately, Kennedy emerges whois authorized tospeak from thedebate about for ofidentity depths politics, to write aboutsomething horrible that mendo to whom.He is a mantrying andKennedy makes itmore butitis difficult, women.Thisis notimpossible, hisassertackles theissueofspeaking so: Becausehe never directly authority, inthefaceofitsdanger for therewards ofreinterpreting tions about sexydress himfrom vulnerable toattack. women areparticularly Theyalso prevent fully women.Rather ofsuchreinterpretation be for what therewards arguing might that than thedicey ofauthority comewith addressing problems identity politics itsownauthorwhen he should, heleavesthe bookitself toargue for implicitly does notwork. ity. Here,it simply
D. Redressing Madonna
I want totakeupwhere left off andsuggest what be gained Kennedy might from butbroadening thefocus to include using Kennedy's popcultural model sex narratives. In Madonna's videoJustify howwomen might reinterpret My Love,116 for example, onefinds notonly toconventional resistance sexualnarratives, butevensomeofKennedy's ownidealsofaffirmative reinvention and invigoration through sexualplay. Madonna sex andsexydressing reinterprets ofgender andresurrecting bycontesting ourconcepts andpower, pleasure from theshadow ofabuse.'17 Anddespite tothe arguments contrary, popular culture maybe oneofthefewplaceswhere resurrection is both feasible andeffective. The verydistances created by massmediation makeoppositional messages more feasible thepossibility ofactual retaliation byreducing against performers.118Someone likeMadonna mayhavegreater authority to suggest suchreinterpretations becauseshe choosespleasure overabuse,notso much forthe sakeofan audience ofmen,'19 butfor her ownsakeandfor thesakeofanother audience-the many young girls whounderstand thecontradictions, puns, and in a pop star named Madonna power whoalways playsthetramp.120 denies Justify MyLovenever that for women is perilous, pleasure that the consequences maybe deadly.Because"oppressive cultural andsexualimages
115. See textaccompanying notes63-66 supra. 116. MADONNA, JUSTIFY MY LOVE (Warner Reprise Video 1990). 117. As Tania Modleskisuggests: Perhapsthecontemporary artist continues to be subversive in the by beingnonadversarial modernist sense,and has returned to ourpop cultural in order pastpartly to explore thesite where pleasure was lastobserved, before it was stoned by thegentry and themobalike,and recreated as a monster. Tania Modleski, The Terror of Pleasure: The Contemporary Horror Filmand Postmodern Theory, in STUDIES IN ENTERTAINMENT: CRITICAL APPROACHES TO MASS CULTURE 155, 164-65(Tania Modleski ed., 1986). 118. See note 136 infra and accompanying text. I19. See note 103 supra. 120. Fiske,supranote94, at 273-75.
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andreinventions oftheoppresrecombinations mayonlybe subverted through is the of merely task fraught with danger siveimages themselves, Madonna's is a tosubvert."'2' recreating thestereotypes shewishes Legitimizing pleasure atthelinewe a woman whohasspent a decadelaughing high-stakes gamefor other andquestioning countless draw between vampandvirgin binary opposiconfine forself-definition anddefine thepatriarchal tions that ourpossibilities andvideos, is ofourcultural choices.In many ofhersongs hegemony pleasure of thepermissible, wherethesexualboundaries within at thelimits found her first ambivalent which we livearemore vividly exposed.From exploration in Borderline, where she acknowledged thedanger of unauthorized pleasure You justkeepon pushing ("[F]eel likeI'm goingto lose mymind/ mylove assertion of control overthat to herbolder overtheborderline"122), pleasure, likecandy, in HankAy and others however "deviant," Panky ("Somegirls they I'll settle for thebackof your handsomewhere on mybethey liketo grind/ ... I don'twant Madonna youtothank me,youcanjustspank me"123), hind/ the rulesagainstsexual transgression has repeatedly challenged by transHertransgressions in Justify them continue gressing artfully. MyLove. down a longhotel The videoopenswith Madonna, drained, stumbling corwe glimpse a dominatrix, an androgyridor. Through half-open doors others: theblackcorset nousman(?), another manpulling hard totighten ofa woman. a fantasy kissyouinParis/ I In thehall, Madonna begins articulating ("I wanna I wanna in a rainstorm/ wanna holdyour handinRome/ run naked Makelove ina train as shedoes,sherevives, her hand over cross-country"124) and, sliding andgartered A mancomes down herface, neck, crotch, thighs. thehalltoward her;these twoaretheonlypeoplein thevideowhosegender we feelsureof. ontothebed. He moves to undress andsink on topofher, Theybegin butas thecamera cutsto their we realize is kissing an androgynous faces, Madonna as themanwatches. Attheheight ofgender an androgywoman(?) confusion, nouscouplepaint on eachother. Their is so indecipherable mustaches gender we cannot that oftheirony: Arethey women judgethedepth imitating menor menimitating men? Theymayactually be menimitating women imitating entertainer BertWilliams men,muchas theblackvaudeville playedup the to thefantasies contradictions of playing of white society by performing in blackface.125 Madonna watches andlaughs with Here, conspiratorial pleasure. andmustaches all become Sideburns, wigs, the disembodied playthings ofgenderidentity. Thetouches ofhomosexuality, voyeurism, sadomasochism, bondbecometherobesof sexualidentity rather age, and fetishism thanidentity itself.
121. Susan EttaKeller,ReviewEssay, 18 W. ST. U. L. REV. 463, 463 (1990) (reviewing MAsupra note 116). Kellerdescribes how Madonna'svideo,whileoffering imagesthatcan be understood to transform thepowerimbalances that nevertheless meets theradical support pornography, feminist definition of pornography. Id. at 465-68. 122.MADONNA, Borderline, on MADONNA (Sire Records 1983). 123. MADONNA, Hanky Panky, on I'M BREATHLESS (Sire Records 1990).
DONNA,
64 (1990).
124. MADONNA, Justify My Love, on THE IMMACULATE COLLECTION (Sire Records 1990). 125. GEORGE LIPsITZ, TIME PASSAGES: COLLECTIVE MEMORY AND AMERICAN POPULAR CULTURE
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in thisvideois to break Madonna'sstrategy downthemeanings of male andfemale in order tobreak down themasculine definition ofsexualpleasure. Andshedoesso inthefashion ofmuch cultural akin tothemethodresistance, ology ofCLS. By making theindicia a kind ofcostume, a game, ofgender she shows is neither that gender natural nor that there arealternative stable, waysof reading it that thepower maychange between thesexes.126 relationships Partof theperilousness of thisstrategy is thatit depends on a delicate power grab.On theonehand, Madonna must retain control ofthefantasy ifwe aretoreaditas oppositional andnot feminism justas faux orchestrated toturn menon; shemust wrest a discourse from pleasure controlled bymen. On the other in a songaboutfantasy hand, andtheboundaries of pleasure, she must that ofthe acknowledge part lieprecisely inrelinquishing pleasure may control. The opening where themanwatches scene, Madonna kissa woman, might suggest that themalevoyeur ownsthewholefantasy. But sucha reading is inconsistent with most oftheimages inthevideo. After themanwatches Madonna, we see a butch ina leather woman cap,suspenders over herbare draped saunter breasts, him in,grab hisheadback, bythehair, yank andslideherhand down hisbody.Thistime Madonna watches. Just about inthis video everyone likesto watch, andeveryone seems tounderstand thepun: They know we like watching them.Therecognition oftheviewer's pleasure is an intricate part of Madonna's as we ask ourselves strategy; whether it is herfantasy or his,she forces us to ask ifit isn'toursas well. thein-your-face Moreover, confidence and defiance of theMadonna persona,thebusiness control of Madonna theartist, andtheimperative voiceof thesongultimately confirm hercontrol overtheterms of thisfantasy. It is Madonna whoissuesthecommands, anditis herloveshewants justified. By demanding pleasure outside thepatriarchal sheis demanding bargain, notonly but justification, justice.From this perspective, themanseems a figment ofher playful andraunchy imagination. When heundresses, we see he is wearing her signature he is a creature crucifixes; of hermaking. In thelastscene,he is aloneand spent, and she leavesrejuvenated. The ambiguous punch lineappearson thescreen:"Pooris themanwhose pleasures depend on thepermission of another." Certainly thisis a slap at censorship,127 butwhatof its invitation apparent to abuse? Is theuse of "man"by a consummately selfconscious woman artist careless sexism or a final playofgender? I think Madonna getsit. I think sheconcludes that for women therisks ofviolation from
126. This approach resembles thetactics of self-proclaimed lesbiansex educator Susie Bright: "The political, social,and emotional connotations of dildoshave many unhappy lesbiansin a stranglehold.... Ladies,thediscreet, complete anddefinitive information on dildosis this: penetration is only as heterosexual as kissing.Now that truth can be known!Fucking knowsno gender."SUSIE BRIGHT, SUSIE SEXPERT's LESBIAN SEX WORLD 19 (1990) (paragraph break omitted). Bright's direct rejection of theradicalfeminist position on penetration parallels Madonna's: Bothemphasize theability of women to give new substance to old sexualforms.Cf ANDREW Ross, No RESPECT: INTELLECTUALS & PoPuLAR CULTURE 156-65 (1989) (showing howcampand dragchallenge thenaturalness of gender roles); CamillePaglia,Madonna-Finally,A Real Feminist, N.Y. TIMES, Dec. 14, 1990,at A39 ("Feminism says, 'No moremasks.' Madonnasays we are nothing butmasks."). 127. MTV refused to air Justify My Love whenit came out in 1990. MTV Strikes a Pose, L.A. TIMES, Nov. 28, 1990,at F2.
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foregoing permission are worth thebenefits. For if pleasure is a sourceof ifwe do notchallenge power, as shecontends, we mayperish thetaboosthat restrict ourerotic choices. E. Cultural and theBenefits Studies ofSexyLegal Scholarship sexualnarratives By looking at strategies forrecasting traditional in ways women can control and translate intopower, of Madonna offers myreading moreliberating choicesforwomen whichfocuses on thandoes Kennedy's, interests ingreater for women.I do notpresent men'sfear ofanderotic power itas an argument couldnot havemade, butas onewhich hechosenot Kennedy ourreadings, as as the to. The similarities between are however, significant menmust in thisinterdifferences. Bothcontend that also realize their stake from Andwhileboth mark a notable conventional pretive venture. departure in their use of pop culture, to thelaw. They legalanalysis both are relevant culture offers thelivedeffects demonstrate howpopular of waysofexamining livesof menand women.Both thelaw,downto its influence on theerotic readings ofMadonna also offer howstrategic waysofseeing reinterpretations can small of resistance which of cultural narratives be acts affect powerfully both culture andthelaw.128 In many is themedium which law is intimately inwaysculture through in thepractices of everyday lifeandthrough which scribed is legalmeaning Robert that lawandformal contested andcreated. Cover explains legalinstituofour"normative that areinseparable tions are onlya part universe,"129 they socialandcultural narratives that from thecomplex "For givethem meaning: there is an epic,for eachdecalogue a scripture. constitution Onceunderevery of thenarratives law becomes stoodin thecontext that not giveit meaning, a system of rulesto be observed, buta world in which we live."130 merely rulemust be situated within a discourse that Every givesit a pastandfuture, andlegitimacy. Thesediscourses areboth official andunofficial, purpose they from numerous cultural communities whoselanguages and concerns emerge each other and maycontradict maycontradict theprescriptions of thestate: "One great andone great dilemma oftheAmerican constitutional orstrength ofthelegalmeanings deris themultiplicity created outoftheexiled narratives and thedivergent social bases fortheir use."131 The smallest, mostprivate interpretive commitments andmaintain thenormative helpcreate universe.132
of LorenaBobbitt, 128. 1 think theacquittal see David Margolick, LorenaBobbitt in Acquitted Mutilation how changing of Husband,N.Y. TIMES, Jan.22, 1994, at Al, demonstrates of narratives and abuse can changethelaw. Where thelaw previously excusedmenforsexualabuse on the gender of provocation, women grounds thesametheory, that menprovoke maynowbe able to invoke arguing sexualviolence(even castration), if they abuse women. repeatedly 129. Robert M. Cover,TheSupreme Court1982 Term-Foreword: NOMOS and Narrative, 97 HARV. L. REV. 4, 4 (1983). 130. Id. at 4-5 (citations omitted). 131. Id. at 19. 132. "The normative universe is heldtogether of interpretive by theforce commitments-some small and private, others immense and public. These commitments-of officials and of others-do determine whatlaw meansand whatlaw shallbe." Id. at 7 (citation omitted).
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Thisis whywhat we chooseto wearandhowwe chooseto wearitcan influenceourinterpretations ofthelaw governing sexualabuse. It is also whythe actsof legal andhistorical that areevident in popular reinterpretation culture canso profoundly influence both oftheworlds culture ofthe spans-theworld ruleof law andtheworld abstract of everyday life. Mostpeopleaccept that havea material effect on thewaythey legalrules live. Farfewer would that doesas well. When acknowledge I talk popculture of popular culture as an entree intoeveryday serving life,I do notmeanto imply an easyrelationship between what insitcoms orsongsandhow happens peoplelive. Butneither arethey unrelated. As George Lipsitz points out,one characteristic ofpopular culture is "itsrefusal to isolate artfrom livedexperience."133 I assume a quality ofrecycling Rather, topopculture. Itsmaterial is thestuff ofeveryday life(making purchases, while much meeting friends, etc.), ofeveryday lifeis spent andparticipating inpopular culture. seeing Formany Americans, eventhewell-educated wholoveto complain of itsmindlessness, commercial culture their most vivid arguably provides ofhistory understanding andpolitics.Lipsitz suggests that
at sometimes, [florsomepopulations commercialized leisure is history-a repository of collective memory that placesimmediate experience in thecontext ofchange overtime.Thevery samemedia that trivialize anddistort culture, that turn art into commodities, andthat obscure theorigins andintentions ofartists also provide connection meaningful toourownpasts andtothepasts of others.134
I would not dismiss Thus, culture as not popular "reallife."135 being Butmediation makes an enormous difference in what kinds ofdefiance arepossible.136 as mucha produced Madonna, imageas a corporeal can scorn woman, male permission moreeasilythan mostwomen, although heractions, which have gained tremendous currency thewidecirculation through ofpop culture, may ultimately affect what "most women" can do without permission andwithout
repercussion.
Aboveall, it is important to ask what Kennedy seeksto achieve by using pop culture and to whatextent analysis he succeeds.I think his strategy is twofold. First, cultural methodologically, studies has muchin common with critical legal studies.Moreimportant, thismethodology maybridge thegap in Part addressed I between CLS andfeminist andcritical racetheory, which havelooked athowwomen andpeopleofcolornegotiate thedominant culture
133. LIPsI1z,supra note 125,at 17. 134. Id. at 5. 135. Ironically, MTV airsa showentitled TheReal World, perhaps theultimate commercial appropriation of the"real." 136. To see thedifference mediation makes, juxtapose Rolling Stone'stitillating photospreadof dressed as a man,HerbRitts, CindyCrawford ROLLING STONE, Dec. 23, 1993-Jan. 6, 1994,at 100-01, with themurder that ofa Nebraska samemonth woman whoposedas a man, A Woman WhoPosed as a Man Is ShotWith 2 Companions, N.Y. TIMES, Jan. 4, 1994,at A6. Cindy Crawford, whoseimageas the consummate womanis a product male-approved of mediation, can exciteherfansby cross-dressing becausewe never lose track ofthefamiliar woman.Butin "reallife"thetolerated residuum effectively suchmavericks. disciplines
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texts into works andlaw in similar ofliberaways, bytransforming oppressive the milieu of the as next serve tion.137 Second, popculture, generation, as may radicallegal scholarship fora new and wider thevehicleforreformulating audience. fewarticles on popular culture andlawhavemadeitinto Very legalscholandevenfewer use themethodology ofcultural arship,138 actually studies,139 on textual andsemiotic itsconcern for broader with itsfocus historianalysis, andideological into anditsethnographic cal,anthropological, practices, inquiry Thisvision as having fixed form quotidian experience.140 neither of culture, and icons[which] norfixed butas ideologically meaning, charged "[ilmages a multiplicity much fordominance within of discourses,"141 shares compete with CLS' vision of law.142 Whilecritical haveyetto affinity legalscholars on thefull ofcultural Etc.begins capitalize potential studies,143 Sexy Dressing thatshortcoming. of Madonna, to remedy forexample, Kennedy's analysis is notonlysystemic that culture andideological recognizes popular in training that thelaw,butalso fertile thesamehierarchies service for resistance ground andthecompatible andchange.The bookbuilds on CLS instincts of insights theorists to recognize that cultural "is part of a law,likeall cultural systems, distinctive manner of imagining thereal."144 topopular culture also offers a partial tothefeminist Looking solution and critical of authority. racetheory has beenan unofficial critiques Pop culture source of expression formany butpotent subordinated communities, incorpothe"local knowledge" of women andpeopleof color, rating whohavetradihadmore accessto cultural than to political tionally andlegal self-expression usescultural most representation.145 in Although Kennedy analysis effectively hisfeminist ofMadonna, hashistorically reading popculture functioned as an sourceof authority forcommunities important of color as well. Fromthe of theRodney in theopening images sceneof SpikeLee's film Kingbeating X146 tothelyrics Malcolm oftheenormously popular Public rapgroup Enemy a mother's ("First nothing's worsethan pain/ Of a son slainin Bensonhurst/
137. See Matsuda, supranote23, at 335-37 (noting that "Black Americans ... have turnedthe Bible and theConstitution intotexts of liberation ...."). 138. Butsee Anthony a Legal Theory Chase,Toward ofPopularCulture, 1986Wis. L. REV. 527 J.Coombe,Publicity (1986); Rosemary Rights and Political Mass Culture, Aspiration: Gender Identity, and Democracy, 26 NEW ENG. L. REV. 1221(1992); Lawrence M. Friedman, Law,Lawyers, and Popular Culture, 98 YALE L.J.1579(1989); Stewart Macaulay, ImagesofLaw inEveryday Life:TheLessons and Spectator 21 LAW & Soc'y REV. 185 (1987). of School,Entertainment, Sports, 139. A notable exception iS JANE M. GAINES, CONTESTED CULTURE: THE IMAGE, THE VOICE, AND
THE
140. See THE NEW PRINCETON ENCYCLOPEDIA OF POETRY AND POETICS 262 (Alex Preminger& T.V.F. Broganeds., 1993); Fiske,supranote94, at 272. 141. LIPSITZ, supranote 125,at 13. 142. See textaccompanying notes4-16 supra. 143. See Chase,supranote138,at 528. 144. CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 184 (1983). 145. See Matsuda, supranote23, at 335. This is notto suggest, however, that blackshaveever had adequatecontrol overtheir artand itsproduction. Id. at 336 n.59. 146. MALCOLM X (Warner Bros. 1992).
LAW (1991).
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todecide the So this Can'twait for thestate fate/ communijam I dedicate"'47), culture toengage ininterpretive battle with tiesofcolorhaveusedpopular law andaesthetic As Matsuda thecultural contributions andpolitics. of points out, oraesthetic, arepart ofa larger cultural battle nonwhites arenever solely they area keypart: of which andrecognition legalrights
oftheblackartists' to establish Forthelegaltheorist, therelevance fight proandsoulofAmeriandmusic is that thefight over thebody gressive language can law is part of thesamestruggle. The law,as critical scholars recognize, andstructures havematerial oflanguage, that andmoral consists ideals, signs, thiskindof system intoone's ownhas a long consequences. Transforming in theblackcommunity.'48 tradition
It is also within that different communities pop culture converse, debate, andrecycle Madonna blackwomen thesamepoteninspiration. maynotoffer tialfor shedoesfor white butitis significant in liberation that that women,149 a hard-edged Justify My Love she employs from Public rapgroove sampled or "sampling" was popularized Enemy.Borrowing piecesoftunes byraparta waytolocate within istsas a kind ofhistorical oneself anartistic and allusion, BothMadonna andPublic conversation. understand thetradipolitical Enemy on for andthis is available tions they draw their authority, authority for others to sample as well ifone knows where to look. WhileKennedy does wellto turn to popular he does notexplore it fully culture, until thelastchapter, and eventhere to misstheauthority he seems suchan investigation couldprovide. Because Kennedy's cultural focuses on white analysis mainly feminism, the methodological gap between CLS and critical race theory is neverfully in SexyDressing spanned a promise Etc.; at best,thebookoffers of future attention. To theextent that inthebookas a revitalization Kennedy functions prophet ofa flagging hisuse ofpopculture CLS faith, texts andcultural studies methods is a strategic thelanguage waytospeak(andtohelpconstruct) ofpotential followers. It is at once an intellectual maneuver and a marketing maneuver. He calls outto a generation whosesenseof history andpolitics, thefoundationalmaterial of CLS, was formed largely by popular culture.150 Kennedy acknowledged longago that hierarchy is reproduced indifferent waysatdifferenttimes:"[T]hesystem is there because itis reborn ineachgenerpiecemeal ation .... Ifyouwant toexplain thestatus quo,youhavetogo into thedetails of howpeople, newpeoplein eachgeneration, to be little learn white middle locateboth andrebellious expected rolesin thetexts ofpopular culture. George Lipsitzoffers one of themost telling descriptions of thisgenerational shift. likeKennedy, cametohisradical theturbuLipsitz, politics during
147. PUBLIC ENEMY, Welcome to theTerrordome, onFEAR Songs,Inc. (BMI) 1990). 148. Matsuda, supra note23, at 337 (citation omitted). 149. P. 201 (citing BELL HOOKS, BLACK LOOKS: RACE AND 150. See textaccompanying note134 supra. 151. KENNEDY, supranote 11, at 89.
OF A BLACK PLANET
class males. . . ."151 The new generation, thosein law schoolnow,can readily
(Def American
REPRESENTATION
160 (1992)).
July1994]
MADONNA'S CLOSET
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lence of Vietnamand the civil rights movement.His students, on the other hand,grew up during the Reagan presidency: werenotright-wing, My students theywerenotleft-wing. Theybelieved in their ownpowerlessness. deeply to myleft-wing Theynever objected polithem I had anypolitics was that at all, that I seemed tics;whattroubled to believethat humans outof anybutthebasestself-centered motivaoperated tions.Their madethem ofthedominant cynicism critical intensely narratives, butleftthem to fashion at leastin discussions unwilling alternatives, about politics and economics.But popular texts a different culture provoked refrom them.Theyidentified with sponse television andpopuprograms, films, larmusic in a waythat notevenconsider would about they politics.... Here hopewas stillan issue,and happiness was stillpossible.The gap between andtheir dominant political rhetoric lived left them with experiences enormous tensions andanxieties with no outlet for savein their to expression responses popular culture texts.152 I have triedto arguethatunderstanding is crucialto underpopularculture law and politicsbecause culture is a resonant site of contention standing and over legal meaning, and power. It is also a negotiation politicalpossibility, forum in whichmanysubordinated communities have founda voice and forged an identity, the boundariesof culturalidentity are porous and conalthough tested. Of course,pop culture is also wheremanygo precisely to escape the realitiesof politicsand theproblems of identity. Cultureis notpure,and it is notclear how bestto use itsrichmaterial.It is clear,however, that pop culture affords a vivid and necessary of small and large acts of resistunderstanding ance to and reinterpretation of thelaw. In selling radical politics,Kennedymustnot only speak the language of he mustalso workthatlanguage in such a way as to make popularculture, and radicalism politicsseem meaningful viable. And bothmustlook at least as cultural vehicle. By foregrounding his vaguelysexualizednarrasexy as their tivepersonaand (skinny) in pop culture dipping texts, Kennedy beginsto chart thiscourse in SexyDressingEtc.
152. Lipsirz, supra note 125, at xiii.

Legal Radicals in Madonna's Closet: The Influence of Identity Politics, Popular Culture, and A New Generation On Critical Legal Studies

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Legal Radicals in Madonna's Closet: The Influence of Identity Politics, Popular Culture, and A New Generation On Critical Legal Studies

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Stanford Law Review

ON THE POWER AND POLITICS OF CULTURAL

book, SexyDressingEtc.: Essays on thePower and Politics of CulturalIden-

Behind theprovocative andglossy bookjacketofDuncanKennedy's new

FOR A NEW GENERATION

STANFORD LAW REVIEW

dead."113Here Kennedy'sdecisionto employthelanguageof economicanaly-

152. Lipsirz, supra note 125, at xiii.

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